Filing a petition for legal separation is an option married couples consider in place of annulment. However, there are many misconceptions about legal separation and one of which is that when you are legally separated, you are free to marry another individual. 

Before you decide on filing a petition, be sure you are familiar with the rules of court. A summary of the law on legal separation will give you an idea about the process. 

RULE ON LEGAL SEPARATION

Section 1. Scope. - This Rule shall govern petitions for legal separation under the Family Code of the Philippines.

The Rules of Court shall apply suppletorily. 

Sec. 2. Petition. - (a) Who may and when to file. - (1) A petition for legal separation may be filed only by the husband or the wife, as the case may be within five years from the time of the occurrence of any of the following causes:

(a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 

(b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(c) 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;

(d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(e) Drug addiction or habitual alcoholism of the respondent; 

(f) Lesbianism or homosexuality of the respondent;

(g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;

(h) Sexual infidelity or perversion of the respondent;

(i) Attempt on the life of petitioner by the respondent; or 

(j) Abandonment of petitioner by respondent without justifiable cause for more than one year.

(b) Contents and form. - The petition for legal separation shall: 

(1) Allege the complete facts constituting the cause of action. 

(2) State the names and ages of the common children of the parties, specify the regime governing their property relations, the properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other similar matters requiring urgent action,

(3) Be verified and accompanied by a certification against forum shopping. The verification and certification must be personally signed by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country

(4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the petition to the City or Provincial Prosecutor and the creditors, if any, and submit to the court proof of such service within the same period.cralaw

Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition. 

(c) Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing "or in The case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner.cralaw

Sec. 3. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: 

(a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient.

(b) The summons to be published shall be contained in an order of the court with the following data; (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs prayed for, and (5) a directive for respondent to answer within thirty days from the last issue of publication.

Sec. 4. Motion to Dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. 

Sec. 5. Answer. - (a) The respondent shall file his answer within fifteen days from receipt of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact. chan robles virtual law library

(b) If the respondent fails to file an answer, the court shall not declare him in default.

(c) Where no answer is filed/or if the answer does not tender an issue the court shall order the public prosecutor to investigate whether collusion exists between the parties.

Sec. 6. Investigation Report of Public Prosecutor. - (a) Within one one month after receipt of the court order mentioned in paragraph (c) of the preceding section, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective counsels, if any.

(b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if convinced that parties are in collusion, it shall dismiss the petition.

(c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial.

Sec. 7. Social Worker. - The court may require a social worker to conduct a case study and to submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary,

Have you ever wondered if long separation is a valid reason for nullity of marriage? For instance, the husband left his family to work abroad, but after a few years, decided to stop communicating with his spouse. There is no communication and by no communication means that the spouse does not know where the husband resides. The line of communication became non-existent. Will this be a reason for remarrying someone? There is a common misconception that once a husband is separated from a spouse, it becomes a reason for one to automatically remarry. While not communicating with the spouse for so many years may seem like another case of abandonment, remarrying someone is not that simple. For an individual to remarry, petition for annulment must be filed.

Art. 35. The following marriages shall be void from the beginning:

    "(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

    (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

    (3) Those solemnized without license, except those covered the preceding Chapter;

    (4) Those bigamous or polygamous marriages not failing under Article 41;

    (5) Those contracted through mistake of one contracting party as to the identity of the other; and

    (6) Those subsequent marriages that are void under Article 53.


Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227)

Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

    (1) Between ascendants and descendants of any degree; and

    (2) Between brothers and sisters, whether of the full or half blood. (81a)


Art. 38. The following marriages shall be void from the beginning for reasons of public policy:

    (1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

    (2) Between step-parents and step-children;

    (3) Between parents-in-law and children-in-law;

    (4) Between the adopting parent and the adopted child;

    (5) Between the surviving spouse of the adopting parent and the adopted child;

    (6) Between the surviving spouse of the adopted child and the adopter;

    (7) Between an adopted child and a legitimate child of the adopter;

    (8) Between adopted children of the same adopter; and

    (9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse. (82)


Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The phrase "However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect"has been deleted by Republic Act No. 8533 [Approved February 23, 1998]).

Art. 40. 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. (n)

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n)

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

    (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

    (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

    (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

    (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

    (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)


Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

    (1) 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;

    (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

    (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

    (4) 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;

    (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

    (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)


Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

    (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

    (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

    (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

    (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

Annulment is the only option available to married couple in the Philippines. When filing for a petition to nullify marriage, the grounds for annulment must be taken into consideration. One of the grounds used for nullity of marriage is psychological incapacity. According to Article 36 of the Family Code of the Philippines, “A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with his obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

How can a person identify if his or her spouse does not have an ability to assume basic marital obligations?

“(a)   A true inability to commit oneself to the essentials of marriage;

(b)   The inability must refer to the essential obligations of marriage, that is, the conjugal act, the community of life and love, the rendering of mutual help, and the procreation and education of offspring; and

(c)    The inability must be tantamount to a psychological abnormality.”

The person who files must also establish that there is indeed Psychological incapacity in his/her marriage.

“a)      The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.

b)      The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision.

c)      The incapacity must be proven to be existing at “the time of the celebration” of the marriage.

d)      Such incapacity must be also shown to be medically or clinically permanent or incurable.

e)      Such illness must be grave enough to bring about the disability of the party to assume essential obligations of marriage.

f)       The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children.

g)      Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

h)      The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition.”

Although it is one of the commonly used grounds for annulment, there are still some processes that must be put in place. For instance, a husband who is not getting along with his wife cannot allege psychological incapacity as a ground for annulment. Even if there are conflicting personalities or irreconcilable differences, a spouse cannot use these as a ground for filling an annulment case against his wife. The children will also remain legitimate even if the petition for nullity of marriage has been granted.

If you happen to come across Article 333 and 334 of the Revised Penal Code, you will realize that gender inequality is evident even in our Penal Law. Proving women of committing a crime of adultery is not a daunting task as proof of sexual intercourse between the married woman and another man will suffice. Once the husband charges the offending parties with adultery, they can carry a penalty of two to six years if found guilty. 

“Art. 333. Who are guilty of adultery. — Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.

If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.”

“Art. 334. Concubinage. — Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.”

The husband can only get convicted for a crime of concubinage if and only if the wife has proven that her husband has been keeping a mistress in the conjugal dwelling or if he has been found to have sexual intercourse with a woman other than his wife under scandalous circumstances. The wife can also file charges if the husband has been cohabiting with the mistress in any other place.

However, the husband will only serve a sentence of six months to four years when convicted while his mistress would only receive banishment, which is also referred to as destierro. When a mistress is sentenced to destierro, she will be prohibited from entering the place or places designated in the sentence, or within the radius designated. She should keep a distance of at least 25 kilometers, and 250 kilometers at most from the place designated. 

If the offended spouse has pardoned the offenders, the criminal charge cannot prosper. Pardon can either be expressed or implied. An expressed pardon refers to writing an affidavit that the offended party is pardoning his or her spouse for his or her act. If the offended spouse chooses to continue living with the offender even after the offense has been committed, this will be considered an implied pardon.

Annulment is the only option that is available to Filipino couples who wish to end their marriage. Since the legalization of divorce is far from happening, considering the fact that the process of passing a divorce bill is difficult, the only way couples can find a way out of problematic marriages is by seeking annulment. However, annulments are also expensive and come with a number of processes such as seeking assistance from legal counsel in filing petitions. 

Under Article 45 of The family Code of the Philippines, marriage can be annulled due to the following reasons: 

• Fraud

• Psychological incapacity

• Lack of parental consent

• Impotence or physical incapability that is affect the marriage 

• Consent of marriage was obtained by intimidation or force 

• Serious sexually transmitted disease 

The major fees for filling for a petition for annulment of marriage: 

• Filing Fees

The first step to take when seeking an annulment is to file for a Petition for Annulment of Marriage, which will be filed before Office of the Executive Clerk of Courts of the Regional Trial Courts of the city or province that you have been residing for at least a six months. 

• Acceptance Fees

Once the case is filed, the firm will charge an acceptance fee for taking on your case. The charges will vary from firm to firm. Some smaller firms have lower fees than bigger firms. 

• Pleading Fees

When filing for a petition for  annulment of marriage, you will be required to submit documents such as judicial affidavits, petrial briefs and others. You are more likely to submit at least 10 pleading and the fees will depend on the number of documents you submit.

• Appearance Fees

The lawyer need to go to court for a scheduled hearing and you will need to pay a fee for every appearance. On average, annulment cases have at least 7 appearances. 

• Psychiatrist/Doctor Fees

If the petition for annulment of marriage was filed due to psychological incapacity, a psychological report from a psychiatrist or doctor must be presented as proof of psychological incapacity. Doctors or psychiatrists are also made to testify in court as well. 

Aside from these above-mentioned fees, there are other costs that filing for a petition for annulment may incur. The cost can still increase if the process drags on or if there are some additional requirements that can lead to more appearances and pleadings. 

The processing time varies from location to location. On average, it will take around 2 years  to conclude a case for nullity of marriage. It may take longer if there are some complications especially if there are properties involved.

In a country where divorce has not yet been legalized the next available option for couples who have reached the end of the line is marriage annulment. Before anyone can declare nullity of marriage, it is important that you have clearly understood what an annulment is. 

Common questions on annulment of marriage answered: 

1. What is an annulment? 

In a nutshell, the term is referred to by non-lawyers as cases undergoing annulment proceedings. On a legal perspective, it refers to annulment cases that fall under a specific Family Code. On the other hand, annulment of marriage is a court process that nullifies marital union. Even if couples are no longer living together, marriage remains valid until the court provides declaration of nullity. Note that void marriage is entirely different from voidable marriage. One cannot file the petition for annulment if the marriage has been considered void or invalid. 

2. What are the grounds of marriage annulment?

• Lack of parental consent. 

• Insanity

• Fraud

• Consent gained by force or intimidation

• Physical incapacity

• Sexually Transmitted Disease

3. What are the factors that cannot be considered grounds for annulment? 

• Infidelity

• Separation 

4. How do you get started with the annulment process? 

You will need to get an attorney for the process and be asked to write your marital history. You need to provide detailed information including the date you met your spouse. The description needs to be vivid and should also include the personality of your spouse as this is part of the case assessment. You will have to undergo psychological evaluation process to ensure that you have a sound mind when the petition was filed.  After the psychological evaluation, drafting and filing of petition will follow. You need to sign the petition before it is sent to the Regional Trial Court.  

Your spouse will receive a notification, referred to as summons informing him that a petition was filed. The petition needs to be answered 15 days from receipt. Notices will be served through publication in case the spouse is not in the country. There will be a series of investigation before the trial stage commences.  

5. Who is entitled for child custody in case of an annulment? 

Joint custody will be awarded unless the children have not reached the age of seven. For children below seven years old, the custody will be given to the mother and the father is given visiting privileges.  

6. Does filing the petition guarantee a marriage annulment? 

There is no guarantee that annulment will be granted and even the lawyers are prohibited to guarantee the outcome of the cases. 

7. What is the average time frame for the proceedings to be completed? 

On average, a decision is made within a year because there are several factors that must be taken into account such as the availability of the judge, court personnel, prosecutor, petitioner and psychologist. The time frame may also vary from place to place. 

8. Can petition for annulment be filed without the spouse’s consent? 

The consent or signature of your spouse will not be required if you wish to file a petition for marriage annulment. In fact, parties should not come to an agreement about filing the annulment petition. Investigations will also be conducted to check if both parties had a mutual agreement of filing the petition or have been fabricating evidence.