Of annulment and “annulment”

Photo by Omac Franc/sxc.hu)

Photo by Omac Franc/sxc.hu)

Any Filipino lawyer who is asked, “How do I get an annulment?,” knows that the person is not asking about annulment, technically speaking. This statement may baffle a layperson. Annulment that is not annulment?

Explaining the difference between annulment, as the term is defined in law, and “annulment,” as laypersons in the Philippines use the term, requires going into technical concepts. The distinction may be irrelevant to some, but a responsible lawyer, especially in a piece like this, must first explain the difference before adapting to the use of the term by laypersons.   

Annulment and ‘annulment’

Annulment in Philippine law is a legal remedy that relates to several things, such as a marriage, a contract or a sale. Annulment in relation to a marriage is the termination of a voidable marriage by a court of law based on a defect in one or more of the essential requisites of marriage that occurred at the time of its celebration.  

This remedy is found in Articles 45, 46 and 47 of the Family Code. It covers cases where a party to the marriage did not obtain the required parental consent; or where consent to the marriage was obtained by fraud, force, intimidation or undue influence; or where a party is insane, or suffers from impotence that is incurable, or is afflicted with a serious and incurable sexually transmissible disease.  

The situations mentioned must have occurred at the time the marriage was celebrated. Annulment of a marriage presupposes that the marriage is valid but suffers from a defect, and that defect may be used, under certain conditions and within a specified period, to terminate the marriage. The remedy expires or may be lost under certain situations, at which time the marriage becomes perfectly valid.

Some have criticized the remedy of “annulment” as a form of divorce.

In contrast, when laypersons in the Philippines use “annulment” these days, they almost always refer to the most popular legal remedy since the Family Code took effect on August 3, 1988. This remedy is found in Article 36 of the Family Code, which reads:

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.

This “annulment” is correctly referred to as the declaration of nullity of the marriage based on psychological incapacity. Since it is quite a mouthful, I will refer to it interchangeably as “annulment” in this article.

This “annulment” under Article 36 is different from annulment because it is grounded on the nullity of the marriage. In the words of Article 36, the marriage is “void.” When a marriage is void, it is as if it never occurred.  

There are a number of causes for the nullity of a marriage, but in Article 36, the cause is psychological incapacity. This is a concept that was borrowed from the canon law of the Roman Catholic Church, but it took on a character of its own—a void marriage sui generis—when it was transported into the Family Code.

The committee that drafted the Family Code thought that divorce would not be acceptable to the Filipino Catholic majority and so chose to adopt Article 36 instead.  The committee refrained from defining “psychological incapacity,” leaving its interpretation to judges on a case-to-case basis.

Article 36 as applied

The Supreme Court has defined the concept of psychological incapacity in its decisions, starting with Santos v. Court of Appeals (1995) and Republic v. Court of Appeals (and Molina) (1997).

According to the Court, for there to be psychological incapacity, it is not enough that the person failed, refused, or neglected to meet his marital obligations. It is required that the person is incapable or unable to perform his marital duties due to some psychological illness.  

The psychological incapacity must be grave, rooted in the party’s history antedating the marriage, and incurable, or at least the cure must be beyond the means of the party involved. The incurability may be absolute or relative only in regard to the other spouse. 
In a long line of cases, the Supreme Court explained that acts such as habitual alcoholism, sexual infidelity, abandonment, failure to support the family, drug use, gambling, unbearable jealousy, maltreatment or violence, constitutional laziness, and emotional immaturity, do not by themselves constitute psychological incapacity. It must be shown that these are manifestations of a disordered personality that makes the spouse completely unable to discharge the essential marital obligations.

One is not required to present an expert witness to prove psychological incapacity, which may be established through other evidence. However, this may be difficult to achieve, and so the presentation of an expert witness—a qualified psychiatrist or clinical psychologist—is desirable and usually strengthens a claim of psychological incapacity.   

When personal examination of the spouse alleged to be psychologically incapacitated is not possible, the psychiatrist or clinical psychologist should secure relevant information from persons other than the other spouse.

The expert should explain the root cause of the psychological incapacity, show its factual basis, establish that it already exists when the marriage was celebrated, explain its effects on the party’s capacity to perform the marital obligations, identify the person’s behavioral manifestations indicative of such psychological incapacity, and show its gravity and incurability. 

Either spouse, even the person alleged to be psychologically incapacitated, may file a petition under Article 36. 

Effects of “annulment”

When a court declares a marriage void on the ground of psychological incapacity, the court in effect declares the marriage inexistent from the beginning. All the parties’ rights and obligations to each other cease, including those related to support and succession.  

The parties may marry again.  However, the legitimacy of the parties’ children is not affected.  For as long as the children were conceived or born prior to the finality of the judgment declaring the marriage void, they are and will always remain legitimate. They are entitled to the rights of legitimate children regarding the use of their parents’ surnames, support and succession.

There is no conjugal partnership of gains or absolute community of property in a marriage declared void on the ground of psychological incapacity. Instead, the parties’ property relations during their cohabitation are governed by the rules on co-ownership.  

They own in equal shares their wages and salaries, and all the properties they acquired during their cohabitation through their joint effort, work or industry. The party who was responsible for the care and maintenance of the family and the household is also entitled to an equal share in the properties. 

The costs

Filing an Article 36 petition can be costly, unless one can find a lawyer who will agree to charge according to one’s capacity to pay or to pro bono representation. Some lawyers charge a minimum of P150,000 ($3,300) acceptance fee, others P250,000 ($5,500), P300,000 ($6,600), or P500,000 ($11,000), and others even much higher.  

In setting their fees, lawyers usually consider the complexity of the issues involved, whether the petition is contested or not (which will affect the length of the litigation process), and whether properties are involved, among other factors. The professional fees of the psychiatrist or psychologist will add to the cost of litigation. The person will need to pay filing fees, the amount of which will depend on the relief that is sought in the petition and the value of the properties involved, if any. 

Is it worthwhile to spend money on this remedy? The answer depends on the motivations one has to put an end to a marriage, if one can justify an Article 36 petition.  

For some, the peace of mind that a successful “annulment” can bring is priceless. Other practical considerations may also be involved: for example, one may want to secure oneself against the irresponsible decisions of the other spouse, whether financial or otherwise. The most compelling reason for some is the opportunity to start a new relationship that is legitimate under the law, another chance at happiness with a better (hopefully) partner.

Some have criticized the remedy of “annulment” as a form of divorce. Others see it as a juridical anomaly, a remedy that is inconsistent with basic doctrinal concepts that form the cornerstone of our laws on marriage. Indeed, to a creative lawyer assisted by an equally creative expert, any marriage can make the quantum leap from valid to void. But there were some who were not successful with their “annulment” and have remained shackled to their failed marriages to this day.

Still, it cannot be denied that Article 36 has provided a good number of Filipinos permanent relief from miserable or failed marriages. This is despite that Article 36 is accessible only to the middle class and the wealthy. Many Filipinos can afford only physical separation. They simply abandon their marriages, live separate lives, cohabit with different partners, acquire properties, and bear children. 

In the meantime, legal complications result from these choices. The realities of “annulment” in the Philippines make the legalization of divorce in the Philippines still relevant.

Evalyn G. Ursua

Evalyn G. Ursua

Evalyn G. Ursua is a practicing lawyer and human rights advocate in the Philippines. She has a forthcoming textbook on Persons and Family Relations to be published by the U.P. College of Law.