ANNULMENT AND DECLARATION OF NULLITY OF MARRIAGE Annulment is the remedy if the marriage is voidable or annullable, i.e., valid until annulled; while declaration of nullity of marriage is the remedy if the marriage is void ab initio. SYNOPSIS OF THE CONFLICTS RULES FACTUAL SITUATION Grounds for annulment (if the marriage is merely voidable) and grounds for declaration of nullity (if the marriage is void ab initio) POINT OF CONTACT The law alleged to have been violated: in other words, it is the law of the place of celebration (lex loci celebrationis) subject to certain exceptions that furnishes the grounds if Filipinos get married abroad, the lex loci celebrationis will determine the grounds for annulment (Art 26, Family Code). For example, two Filipinos get married in England. Let us assume that sterility is a ground for annulment of marriage in England. The marriage of the two Filipinos will be annullable on the ground of sterility, even if sterility is not a ground for annulment under the Family Code. This is because English law is the lex loci celebrationis. JURISDICTION OVER CASES FOR ANNULMENT OR DECLARATION OF NULLITY OF MARRIAGE Since we follow the nationality theory, our courts have jurisdiction to take cognizance of annulment and nullity suits in marriage in cases where the litigants are Filipinos. Domiciliaries of the Philippines can also file such suits in the Philippines. In the Philippines, a Filipino citizen or domiciliary can file a case for annulment or declaration of nullity of marriage even if the defendant is a non-resident of our country. IF THE MARRIAGE IS NULL AND VOID OR AN ABSOLUTE NULLITY, CAN THE PARTIES REMARRY WITHOUT GOING TO COURT, SINCE AFTER ALL, THE MARRIAGE DOES NOT EXIST AT ALL? ANSWER: No. Under Art. 40 of the Family Code which is a new provision, “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.” ABSOLUTE DIVORCE The Family Code adoes not allow absolute divorce except that which is validly obtained abroad by a foreigner from his or her Filipino spouse capacitating him or her to remarry, in which case the Filipino spouse can also remarry EXAMPLE 1 A Filipino couple when to Las Vegas where they obtained a divorce decree on account of the wife’s adultery. Will the divorce decree be recognized in the Philippines? ANSWER: No, because the divorce is contrary to an important public policy of the forum EXAMPLE 2 American couple married in the US. Wife obtained a valid divorce in the US. If she should come to the Philippines, will she be allowed to get married here? ANSWER: Yes, provided she can get a certificate of legal capacity to contract marriage here. The divorce will be recognized as valid here because it is valid in accordance with her national law and it is valid in the place which granted the same. EXAMPLE 3 A Filipina married H, a national of X. Under the laws of X, the

2. ANNULMENT AND DECLARATION OF NULLITY OF
MARRIAGE
Annulment is the remedy if the marriage is
voidable or annullable, i.e., valid until annulled;
while declaration of nullity of marriage is the
remedy if the marriage is void ab initio.

3. SYNOPSIS OF THE CONFLICTS RULES
FACTUAL SITUATION POINT OF CONTACT
Grounds for annulment (if the
marriage is merely voidable)
and grounds for declaration of
nullity (if the marriage is void
ab initio)
The law alleged to have been
violated: in other words, it is
the law of the place of
celebration (lex loci
celebrationis) subject to
certain exceptions that
furnishes the grounds

4. if Filipinos get married abroad, the lex loci celebrationis will
determine the grounds for annulment (Art 26, Family
Code).
For example, two Filipinos get married in England. Let us
assume that sterility is a ground for annulment of
marriage in England. The marriage of the two Filipinos
will be annullable on the ground of sterility, even if
sterility is not a ground for annulment under the Family
Code. This is because English law is the lex loci
celebrationis.

5. JURISDICTION OVER CASES FOR ANNULMENT OR DECLARATION OF
NULLITY OF MARRIAGE
Since we follow the nationality theory, our courts have
jurisdiction to take cognizance of annulment and nullity
suits in marriage in cases where the litigants are
Filipinos. Domiciliaries of the Philippines can also file
such suits in the Philippines.
In the Philippines, a Filipino citizen or domiciliary can file a
case for annulment or declaration of nullity of marriage
even if the defendant is a non-resident of our country.

6. IF THE MARRIAGE IS NULL AND VOID OR
AN ABSOLUTE NULLITY, CAN THE PARTIES
REMARRY WITHOUT GOING TO COURT,
SINCE AFTER ALL, THE MARRIAGE DOES
NOT EXIST AT ALL?

7. ANSWER:
No. Under Art. 40 of the Family Code which is a new
provision, “the absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous
marriage void.”

8. ABSOLUTE DIVORCE
The Family Code adoes not allow absolute divorce except
that which is validly obtained abroad by a foreigner from
his or her Filipino spouse capacitating him or her to
remarry, in which case the Filipino spouse can also
remarry

9. SYNOPSIS OF RULES FOR ABSOLUTE DIVORCE
FACTUAL SITUATION POINT OF CONTACT
(1) If sought in the Philippines
(whether by Filipinos or by
foreigners)
(1) Lex fori (therefore, will not be
granted)
Exception: Moslem divorces
(2) If obtained abroad:
Between Filipinos
Between foreigners
Mixed
(2)
National law (therefore, not valid
here even if valid abroad; and this
is true regardless of the cause of
divorce)
National law (if valid in the State
granting it, and valid according to
the national law of the parties, will
also be valid here)
Apply (a) and (b) respectively

10. EXAMPLE 1
A Filipino couple when to Las Vegas where
they obtained a divorce decree on
account of the wife’s adultery. Will the
divorce decree be recognized in the
Philippines?

11. ANSWER:
No, because the divorce is contrary
to an important public policy of the
forum

12. EXAMPLE 2
American couple married in the US. Wife
obtained a valid divorce in the US. If she
should come to the Philippines, will she
be allowed to get married here?

13. ANSWER:
Yes, provided she can get a
certificate of legal capacity to
contract marriage here. The divorce
will be recognized as valid here
because it is valid in accordance
with her national law and it is valid
in the place which granted the
same.

14. EXAMPLE 3
A Filipina married H, a national of X. Under the
laws of X, the wife acquired husband’s
nationality. Moreover, she expressly renounced
her Philippine citizenship. Later, the couple
obtained a decree of absolute divorce, which
was valid in country X. Upon the wife’s return to
the Philippines, will she be allowed to marry
again here?

15. ANSWER:
Yes, because by virtue of her acquisition of
foreign citizenship in addition to her repudiation
on renouncing of Philippine citizenship, the
rules on foreigners govern the validity of the
divorce. As her divorce is considered valid in
country X, her divorce should be recognized in
our courts.

16. EXAMPLE 4
A and B, Filipino citizens, married in Manila. B, the wife then
committed an act of adultery. Thus, A abandoned her. B
went to Reno, Nevada and obtained a final decree of
divorce on the ground of abandonment. Thereafter she
married C, an American. A, having learned of the divorce,
married D in Hongkong and cohabited with her in Manila.
2 years later, B divorced C. She then learned of the
marriage of A to D and immediately filed an action for
concubinage.

17. ANSWER:
The Reno divorce decree cannot be recognized as valid here
in the Philippines because the couple’s status is
governed by the Philippine law.
The marriage of A to D, while considered as valid there,
cannot be considered as valid here, because if is a
bigamous marriage, as determined by Philippine law.
A cannot be prosecuted for bigamy as the crime, if any, was
committed in Hongkong, and thus outside the jurisdiction
of the Philippines.

18. INTESTATE ESTATE OF THE LATE E. RANDOLPH HIX.
ANNIE COUSINS HIX VS. A. W. FLUEMER
One of the conditions for the validity of a decree of absolute
divorce is that the court granting it has acquired
jurisdiction over the subject matter, and to this end the
plaintiff must be domiciled in good faith, and for the
length of time fixed by the law, in the state in which it was
granted.
It is not the citizenship of the plaintiff for divorce which
confers jurisdiction upon a court, but his legal residence
within the State where he applies for a divorce.

19. RULES ON THE VALIDITY OF FOREIGN DIVORCES OBTAINED BY
FOREIGNERS ABROAD
(1) The Hague Convention on the Recognition of Divorce and Legal
Separation concluded on June 1, 1970 states that a foreign
divorce will be recognized in the contracting states if, at the
date of the filing of the proceedings:
 The petitioner or respondent had his or her habitual residence in
the state where the divorce was obtained;
 If both spouses were nationals of said state; or
 Although the petitioner was a national of another country, he or
she had his or her residence in the place where the divorce was
obtained.
(2) In the Philippines, if both spouses are aliens, we recognize a decree
of divorce obtained by them abroad if valid under their national law.

20. LEGAL SEPARATION OR RELATIVE DIVORCE
Absolute divorce (a vinculo matrimonii) dissolves the
marriage and the parties can marry again. Legal
separation or relative divorce (a mensa et thoro) is only
separation from bed and board but the parties remain
married.

21. DISTINGUISH LEGAL SEPARATION FROM ANNULMENT OF
MARRIAGE.
(a) In legal separation, the marriage is not defective; in
annulment, the marriage is defective.
(b) In legal separation, the grounds arise after the marriage; in
annulment, the grounds must exist at the time of or before
the celebration of the marriage.

22. DISTINGUISH LEGAL SEPARATION FROM ANNULMENT OF
MARRIAGE.
(c) In legal separation, the parties are still married to each other
and cannot remarry; in annulment, the marriage is set aside
and the parties can marry again.
(d) In legal separation, the grounds are those given by the
national law or the domiciliary law of the parties concerned,
inasmuch as the question is one of status; annulment, on the
other hand, questions the very existence of that status; so
that as a general rule, the grounds for annulment are those
given by the lex loci celebrationis, subject to certain
exceptions.

23. SYNOPSIS OF CONFLICT OF RULES
FACTUAL SITUATION POINT OF CONTACT
Grounds for legal separation:
Adultery
Concubinage
Attempt by one spouse
against the life of the other
National law of the parties
If of the same or common
nationality – the common
national law governs
If of different nationalities – the
grounds given by BOTH
national laws should ALL be
considered proper grounds
NOTE: Residence requirement if
suit is brought in the Philippines:
If cause occurred in the Philippines
– NO residence requirement
If cause occurred outside the
Philippines – one year residence is
required in our country (Art. 99,
NCC)

24. JURISDICTION OVER CASES FOR ANNULMENT OR DECLARATION OF
NULLITY OF MARRIAGE
Jurisdiction in the case of aliens is not assumed by the forum
unless the national law of the parties is willing to recognize its
jurisdiction.
In the Philippines, foreigners may ask for legal separation here,
even if they did not get married in this country. What is
important is that the court has jurisdiction over both parties.
Most countries assume jurisdiction over cases for legal separation
on the basis of the domicile of one of the parties or the
matrimonial domicile. The rationale for this rule is that the law
of the domicile of the parties is that with which they are most
intimately connected

25. Is it necessary that the cause for legal
separation take place in this country for
our courts to have jurisdiction over the
case?

26. ANSWER:
No. There is no such requirement in the Family
Code. Again, what is important is that the court
has jurisdiction over the parties, and that the
procedural requirements of the Rules of Court
are complied with.