10:47 pm Tuesday, February 7, 2017
By: Atty. Dennis R. Gorecho
One of the unfortunate consequences of seafarers working away for several months is the falling out of marriage. For couples desperate to find a way out of their troubled marriages, some choose to undergo trying and tedious legal process where they have to incur many expenses: the cost of litigation, filing fees, and even the professional fees.
Essential and formal requisites of marriages
- It should be noted that for a marriage to take place, there are essential requisites and formal requisites which must first be met.
- The essential requisites of marriage are:
- legal capacity of the contracting party, who must be male and female; and
- consent is freely given in the presence of the solemnizing officer (Article 2, Family Code [FC]).
- The formal requisites of marriage are:
- authority of the solemnizing officer,
- a valid marriage license (except in specific instances mentioned under Chapter 2 of the Family Code); and
- a marriage ceremony which takes place with both of the contracting parties appearing before the solemnizing officer and declaring that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (Article 3, FC).
Although many loosely call all actions for terminating a marriage in the Philippines as annulment, the truth is there are several actions that may be instituted to terminate the marriage.
Declaration of Nullity of Marriage
Grounds rendering a marriage “void ab initio” are:
- those contracted by any party below 18 even with the consent of parents
or guardians; - those solemnized by any person not legally authorized to perform a marriage unless either or both parties believed in good faith that the solemnizing officer had the legal authority to do so;
- those solemnized without a marriage license except those expressly exempted by law to secure a marriage license;
- those bigamous or polygamous marriages;
- those contracted through mistake of one of the contracting parties as to the identity of the other;
- incestuous marriages as defined in Article 37 of the FC; and
- void marriages by reason of public policy (i.e. between step-parents and step-children, between adopting parent and adopted child).
An action for the declaration of the absolute nullity of marriage may be instituted at any time and shall not prescribe (Art. 39, FC).
It must be emphasized that although the marriage is void from the beginning, a party cannot unilaterally contract a subsequent marriage with the thought in mind that the previous marriage was invalid. For example, A and B contracted a marriage with a fake marriage license. Spouse B who knew that the marriage license was fake contracted a second marriage with C. Is the marriage between Spouse B and C valid? No! The marriage between A and B should have first been declared null and void by the Court before Spouse B and C can marry.
Annulment of Marriage
An annulment has the effect of considering the marriage as “void ab initio”, a Latin term to meaning the marriage NEVER existed at all. The grounds for annulment are often pertaining to the absence of, or defect in, one of the essential or formal requisites of marriage. Although it has a different effect in how it considers the marriage (null and void) after the annulment, it has, however, the same effect in terms of capacitating the parties to remarry.
In an Action for Annulment of Marriage, the following marriages may be annulled:
- that the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over, but below twenty-one and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
- that either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
- that the consent of either party was obtained by fraud unless such party
afterward, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife; - that the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
- that either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
- that either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
Unlike in the first set of grounds above mentioned, an action for the annulment of marriage prescribes; in case of lack of consent, until the party filing for annulment reaches 21; in case of insanity until the death of either party or the lucid interval of the insane spouse; in case of fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease, within five years from the occurrence of the fraud, force, intimidation or undue influence, incapacity to consummate the marriage or knowledge of the sexually-transmissible disease.
Legal Separation
Legal separation is merely the separation of spouses from bed and board. (Article 63 of the Family Code) While it permits the partial suspension of marital relations, the marriage bond still exists as the marital bonds are not severed as in the case of annulment or petition for nullity.
The grounds for legal separation are:
- Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
- Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
- Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
- Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
- Drug addiction or habitual alcoholism of the respondent;
- Lesbianism or homosexuality of the respondent;
- Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippine or abroad;
- Sexual infidelity or perversion;
- Attempt by the respondent against the life of the petitioner; or
- Abandonment of petitioner by respondent without justifiable cause for more than one year. (Article 55 of the Family Code of the Philippines)