Thursday, June 6, 2013
Annulment of Marriage and Declaration of Nullity of Marriage.Their Procedure and Consequences.
In the Philippines, perhaps, owing to its predominantly catholic demographics, laws on marriage are stricter than in most other democratic countries. We have no law on or allowing divorce, though there is a bill pending in Congress legalizing it –but it’s not expected to see the light of day until far in the future. What we do have is a slit of escape route in our Family Code: Articles 35-38, 45, 53 and 55, with varying consequences.
In contrast, its preservation, promotion, and protection are enshrined in our Constitution, and reinforced in our statutes, as well:
ARTICLE XV of the 1987 Constitution provides:
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.
While the Family Code reinforces the foregoing edicts in its opening article:
Art. 1. Marriage is a special contract of permanent union between a man and a woman (efforts are unabated in trying to overthrow this provision by same-sex marriage advocates) entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a) (Italics and caption supplied)
Given the backdrop, there is no doubt that the state recognizes inviolability and preservation of marriage as among its primordial and lofty policies.
So just how tight does that make the escape route from marriage? Very tight: obviously, to discourage its utility. You have to do a Harry Houdini, so to speak.
Many though, myself included, are comfortable with the status quo, that is, a state policy biased in favor of preservation of marital union, as opposed to the state of norm in developed countries. However, it is not to say that this sentiment is etched in stone.
Indeed, there are cases that put forth the ugly face of marriage before the public consciousness & awareness (oftentimes creating furor), which put the issue of marriage’s inviolability to nagging question due to its sheer radicalism, unjustness, and unreasonableness: physical and psychological abuse or battery of either spouse (it’s not always the wife who’s battered); bisexuality; concealed homosexuality; even prostitution of one’s own wife or partner, etc., and other circumstances that reduce the aggrieved spouse to being an “object” of one’s maniacal psyche.
To be clear, the family is worth saving every marriage for. A parent who thinks about the welfare of his/her child would likely put up with less than ideal marriage just to keep the child’s life in normalcy.
A caring parent to his/her child would find a hundred ways of trying to save the marriage to protect the latter’s interest. However, when all else fails, and violence, whether physical, mental or emotional, has become a fixture at home, an end to marriage becomes expedient.
Everyone deserves happiness, and if you failed the first time you ought to have another shot at the bat. Life is short, there’s no sense in living it at the clutches of a failed marriage. Do yourself and your child a favor: get out of it.
The next grim reality to a failed marriage
So you’ve figured out this is not the life you’ve wanted to live your lifetime. Great! But are you out of misery now? Just like that? Not so fast, and not quite yet!
Realizing you’ve got to get out is one thing; the means to actually getting out is quite another.
Here are a few things that you have to come to terms with:
Another headache (as though you’ve not had enough): It will cost you
You will retain a lawyer; you will pay for filing fee; you will pay for professional fee of a psychiatrist or a psychologist if the petition is grounded on psychological incapacity;
There could be undesirable or unintended consequences
You might escape your marriage, and unwittingly leave your child bastardized. A judgment declaring a marriage void ab initio (from the very beginning) carries with it an order to the local civil registrar to change the status of the child from legitimate to illegitimate, except if the petition is based on the ground of psychological incapacity (Art. 36, Family Code), or grounded on Art. 53 for failure to comply with the conditions set forth under Art 52 of the Family Code: Registration of the judgment of annulment or absolute nullity of marriage, registration of partition and distribution of community of or conjugal property; and the registration of the delivery of the child’s/children’s presumptive legitimes, with the appropriate local civil registrar, and registries of property, before contracting a subsequent marriage.
To better appreciate the discussion above, please note the basic difference between a Petition for Annulment, as referring to voidable marriages (valid until annulled in court) under Art. 45 of the Family Code, and Petition for Declaration of Nullity of Marriage, as referring to void marriages (void ab initio) under Articles 35, 36, 37, 38, and 53 of the Family Code.
Sort things out to cut cost
The speed (no speedier than six months though) by which you are able to conclude your suit will directly impact your cost. The shorter, the cheaper, keeping in mind that your counsel is paid by the hour, or as more popular in the Philippines, by way of Appearance Fee, on top of an Acceptance Fee. Even if you agree to a packaged Legal Fee, the unnecessary time you spend litigating your cause will, in one way or another, cost you, either through lost opportunities, or mental anxiety.
So go to court with only the issue/s that need/s the court’s disposition. If possible, discuss and hopefully agree with your ex-partner-to-be the issues on the custody of the child/children, visitation rights, property arrangements, and support. That way, the court can focus on the main issue of annulment or nullity of marriage.
Be careful, the odds are stacked against you
Because the policy of the State is for the protection, promotion, and preservation of the family, expect it to flex its muscles in opposing your petition. As an inviolable institution, all doubts to its validity will be resolved in favour of its maintenance. After all, you, as the petitioner, have the onus of convincing the court and the state that you have a compelling ground to overthrow the policy.
The key to a successful petition is to discuss your circumstances exhaustively with your lawyer. The lawyer will make out the ground out of the facts of your case. Remember that it’s a tight escape route, so leave none to chances.
Most petitions are grounded on psychological incapacity under Art. 36 (FC), not only because it preserves the legitimacy of the child or children, but oftentimes it is the only available ground for the declaration of nullity of marriage. Easy? No way, but only under this ground do you have a room to maneuver your cause. That’s why it is left undefined in the law, by design, so as to allow the court to use its utmost discretion and judicious judgment, considering the leeway it has, on what to consider as coming within the ambit of psychological incapacity.
Jurisprudence has laid the parameters, in concurrence:
(1.) Juridical antecedent, meaning that the ground raised existed even before marriage, though it may have become apparent only after its celebration and during cohabitation;
(2.) Grave; and
The other grounds for declaration of nullity are as fixed and immalleable as they are defined in law leaving very little room, if at all, to work around in, viz:
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 falling 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)
The ground for annulment of marriage is found under Art. 45 of the Family Code, viz:
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)
The Supreme Court issued a resolution approving the proposal of the Committee on the Revision of the Rules of Court on the Rule on Declaration of Absolute Nullity of Void Marriagesand Annulment of Voidable Marriages.