Thursday, September 6, 2012

ANNULMENT IN THE PHILIPPINES: (Q & A) 

http://philattorney.com/tell-me-about/annulment-in-the-philippines-philippine-law-firm-lawyers/

Q. What is a petition for declaration of nullity of marriage?
  1. It is a judicial process wherein the relief being sought is the declaration of a marriage as void ab initio. This is presupposes that the marriage is void from the very beginning or inexistent from the time of its performance.
Q. If my marriage is void from the beginning is it necessary for me to go to court to have it declared null and void?
  1. Yes, the law requires that for purposes of remarriage your void marriage should be judicially declared void, otherwise, any marriage contracted in violation thereof is likewise void. It is not for the parties to determine whether or not their marriage is void.
Q. May I know what are the grounds to declare a marriage void?
  1. The following are the grounds to declare a marriage void:
  1. Those contracted by any party below eighteen years of age even with the consent of their 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 unless falling under the exceptions where no marriage license is required;
  4. Those bigamous or polygamous marriages;
  5. Those contracted through mistake of one contracting party as to the identity of the other;
  6. Psychological Incapacity of the husband or wife, existing at the time of marriage, which prevents him or her from complying with the essential marital obligations of marriage, even if such incapacity becomes manifest only after the solemnization of the marriage;
  7. Incestuous Marriages (between ascendants and descendants; between brothers and sisters whether full or half blood);
  8. Marriages between relatives:
  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;
  9. between parties where one, with the intention to marry the other, killed the other person’s spouse, or his or her own spouse.
Q. Is there a time limit for me to file a petition to declare my marriage void?
  1. No. The action to declare the marriage void does not prescribe. Hence, this can be filed at any time.
Q. What is annulment of marriage?
  1. It is a judicial process wherein the relief being sought is the annulment of a marriage bond. This means that a marriage is valid until annulled by a competent court.
Q. What are the grounds for annulment?
  1. The grounds are as follows:
  1. Lack of parental consent. This applies to parties who, being above 18 years and above but below 21 years old, get married without the parental consent;
  2. Insanity of one parties;
  3. The consent of either party was obtained by fraud;
  4. The consent of either party was obtained by force, intimidation or undue influence;
  5. Either party was a sexual impotent or physically incapable of engaging in sexual intercourse and such incapacity continues and appears to be incurable;
  6. Either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
Q. What are the kinds of fraud which constitute the ground for annulment as stated in #3 above?
  1. They are:
  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.
Q. What procedure governing petitions for declaration of absolute nullity of void marriages and voidable marriages?
  1. The procedure is provided under Supreme Court A.M. No. 02-11-10, the New Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, which took effect last March 15, 2003. The simple steps are as follows:
  1. It is important to engage a counsel of your own choice in order to assess the existence of applicable grounds to annul your marriage or have it declared void ab initio;
  2. If the ground is psychological incapacity under Article 36 of the Family Code, then the professional services of a clinical psychologist is important to determine the existence of certain types of personality disorders (like narcissistic, histrionic, anti-social disorders, etc.) by either or both spouse with all its physical manifestations determinative of psychological incapacity to contract marriage;
  3. Then once an evaluation report yields the existence of psychological incapacity characterized with juridical antecedence (meaning it existed prior to the marriage and only manifested during the marriage), gravity and incurability (absolute and relative) then a petition can be initiated in court by your counsel;
  4. With its filing in court, the whole process begins such as the service of summons to the respondent spouse (and if abroad, the service will have to be made by publication with leave of court);
  5. After the period to file an answer by the respondent husband/wife, a motion can be filed to have the case referred to the public prosecutor for purposes of collusion investigation, a report will have to be prepared by the prosecutor within thirty (30) days from the court’s order for him to conduct a collusion investigation;
  6. Thereafter, a preliminary conference before the branch clerk of court will be set for purposes of marking of exhibits, determining issues, stipulations of facts, dates of hearings and witnesses to be presented;
  7. Then the pre-trial and trial proper. Once all the pieces of evidence, testimonial and documentary, has been presented in court by the petitioner the same will have to be formally offered, once admitted by the court, the date for the presentation of respondent’s evidence will have to be set. If it is contested, the respondent will likewise present his/her evidence. If not contested, it is for the petitioner to move that despite notice respondent have failed to appear therefore he/she is deemed to have waived his/her right to present evidence and the case be submitted for decision;
  8. After evaluating the evidence on record, the court will issue a decision.
Q. Who may file the petition for absolute nullity of void marriage?
  1. It may be filed solely by the husband or the wife.
Q. Where can I file the petition for declaration of nullity or annulment of my marriage?
  1. You can file the petition before the Family Court located at the place of your residence or that of your husband/wife, where either of you have been residing for at least six months prior to the filing of the petition or in case a non-resident respondent spouse, where he/she may be found in the Philippines, at the election of the petitioner spouse.
Q. How can I check the existence of my marriage?
  1. You can secure the copy of your marriage contract before the Local Civil Registrar of the place where your marriage was solemnized. Or you may secure a copy of which before the National Statistics Office (NSO), the Civil Registrar General. If you are not certain whether a particular person got married or not you can secure the certificate of no marriage (CENOMAR) of that person and from that document you can see all the marriages contracted by that person.
Q. Can I file the petition for declaration of nullity of my marriage/annulment of marriage even if I am out of the country?
  1. Yes. This is not prohibited by law and existing rules. But you have to appear when you are needed to testify in court.
Q. What if my spouse is outside the country or cannot be found in the Philippines. How can I proceed with the petition?
  1. In that case, the summons will have to be served to him by publication. The summons will be published once a week for two (2) consecutive weeks in a newspaper of general circulation. In addition, a copy of the summons shall be served to your respondent spouse at his/her last known address by registered mail or by any other means which the court may deem sufficient.
Q. If I am out of the country do I have to come home to attend the trial?
  1. Yes, because you have to testify and prove your petition. However, a motion for the early taking of your testimony or deposition can be filed in court so that you can testify and attend on the scheduled hearing. In that way, your attendance to testify in court can be pre-scheduled.
Q. What is psychological incapacity as a ground to declare the marriage void?
  1. This is provided under Article 36 of the Family Code. The case of Santos versus Court of Appeals decided sometime in January 4,1995 specifically defined it as referring to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic martial covenants that concomitantly must be assumed and discharged by the parties to the marriage which, xxx, include their mutual obligations to live together, observe love, respect and fidelity, and render help and support. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.”
Q. But what are the manifestations of psychological incapacity?
  1. Types of Disorders According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (3d ed., rev., 1987), or DSM-III-R, personality disorders are categorized into three major clusters:
  1. Cluster A: Paranoid, schizoid and schizotypal personality disorders. Individuals who have these disorders often appear to have odd or eccentric habits and traits.
  2. Cluster B: Antisocial, borderline, histrionic and narcissistic personality disorders. Individuals who have these disorders often appear overly emotional, erratic and dramatic.
  3. Cluster C: Avoidant, dependent, obsessive-compulsive and passive-aggressive personality disorders. Individuals who have these disorders often appear anxious or fearful.
The DSM-III-R also lists another category, “personality disorder not otherwise specified,” that can be used for other specific personality disorders or for mixed conditions that do not qualify as any of the specific personality disorders.
Q. How can I prove psychological incapacity of my spouse?
  1. While the rules does not require that a psychological evaluation be alleged in the petition at the time of its filing. However, it is important that you submit for a psychological evaluation to determine clinically the existence of psychological incapacity of either spouse. In simple terms, you can prove it by submitting yourself for psychological evaluation. However, you have to be truthful with the information you disclose. Thereafter, a report in this regard will be issued by the psychologist which could yield the psychological incapacity of either or both spouses.
For more info:
Visit the website:  http://duano.com.ph/meettheattorney.html
Duano Law Office  
9th Flr. Suite 9N Future Point Plaza 3
No.111 Panay Ave., South Triangle Quezon City 
1103 Philippines
Tel: (02) 425-5221;  0919-2345-113; (02) 411-56-05

 


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