ANNULMENT, DECLARATION OF NULLITY, OR LEGAL SEPARATION?

Many use the terms “annulment,” “declaration of nullity,” and “legal separation” interchangeably when consulting a lawyer. Even news reporters and writers sometimes fall into this trap when reporting about legal actions taken by celebrity couples. Each one however is different from the others, with each having different grounds and resulting in different legal effects. Of the three, annulment and declaration of nullity of marriage severs marital ties. Legal separation does not.

Let us first distinguish annulment of marriage from declaration of nullity of marriage. “Annulment” deals with voidable marriages, while the latter deals with void marriages. Voidable marriages are those which are considered valid until it is declared void. Void marriages are those which are void from the very beginning. The Family Code provides the grounds for void and voidable marriages.

DECLARATION OF NULLITY OF VOID MARRIAGE

Void marriages cannot be convalidated. However, parties to a void marriage may not just declare their marriage as such, even in the presence of one or more grounds. The parties should always first go to court and file a petition for declaration of nullity of their void marriage. The following are void marriages, and may be grounds in a petition for declaration of nullity of marriage: (1) marriage between minors; (2) marriage solemnized without a valid marriage license, subject to certain exceptions; (3) mistake in the identity of one of the contracting parties; (4) marriage solemnized by a person without authority, unless the parties believed in good faith that such person had authority to solemnize marriage; (4) Incestuous marriages; (5) bigamous or polygamous marriage; (6) marriage where one or both parties are psychologically incapacitated to perform the essential marital obligations; (7) marriages that are void by reason of public policy; (8) subsequent marriages where there was a failure to comply with the requirements of obtaining a judicial decree of nullity or annulment of the previous marriage, partition or distribution of properties of the former marriage, distribution of the children’s (from the previous marriage declared as null or annulled) legitimes, and its recording in the proper civil registry. These grounds may co-exist and may be alleged in one petition.

An action for declaration of nullity of void marriage does not prescribe. This means it may be filed for as long as both parties are living.

A decree of nullity issued by the court retroacts to the date of marriage and dissolves the marriage ab initio, or from the very beginning. It is as if there was no marriage solemnized at all. However, children conceived or born during the marriage shall still be considered as “legitimate.” Upon finality of the decree of nullity and upon compliance with the requirements of distribution of properties and children’s legitimes, and the decree’s recording in the civil registry, both spouses can remarry.

ANNULMENT OF MARRIAGE

On the other hand, the following are grounds for annulment of marriage: (1) lack of parental consent in marriages where one or both of the parties were at least 18 years old but below 21 at the time of marriage; (2) Either party was of unsound mind during the marriage; (3) Fraud; (4) Force, intimidation, or undue influence on one or both of the parties to compel them to marry; (5) Either party is physically incapable of “consummating” the marriage; and (6) Either party has a serious sexually transmitted disease that appears to be incurable. “Fraud” as a ground for annulment may be: (1) concealment of the fact of previous conviction of a crime involving moral turpitude; (2) concealment by the wife of the fact that at the time of marriage, she was already pregnant by another man; (3) concealment of sexually transmitted disease regardless of nature during the marriage; (4) concealment of habitual alcoholism, drug addiction, homosexuality, or lesbianism at the time of marriage. No other misrepresentation or deceit as to character, health, rank, fortune, or chastity shall constitute fraud as will give grounds for action for the annulment of marriage.

Unlike a declaration of nullity which retroacts to the date of marriage, a decree of annulment terminates the marriage from the time it is annulled. Just like in marriages declared null however, children conceived or born during the marriage shall still be considered “legitimate.” Upon finality of the decree of annulment and upon compliance with the requirements of distribution of properties and children’s legitimes, and its recording in the civil registry, both spouses can remarry.

Unlike actions for declaration of nullity of void marriages which do not prescribe, actions for annulment prescribe. This means actions for annulment should be brought within a certain period of time. For example, a party who married at an age of more than 18, but less than 21 and did not obtain parental consent, may file a petition for annulment of marriage within a period of five (5) years after reaching the age of 21. Failing to do so within the prescriptive period would mean that no action for annulment may be filed anymore and the putative marriage shall be deemed convalidated and ratified.

Note that unlike voidable marriages, void marriages can never be convalidated or ratified.

LEGAL SEPARATION

Legal separation, unlike the annulment and declaration of nullity, does not dissolve marriage. Parties remain married, although they are entitled to live separately from each other. The absolute community or the conjugal partnership shall be dissolved and liquidated, but the offending spouse (the one who gave ground/s for the separation) will not share in the net profits. Further, custody of children shall be awarded to the innocent spouse, subject to exceptions. Finally, the offending spouse shall not be entitled to inherit from the innocent spouse by intestate succession. Any provisions in favor of the offending spouse in the innocent spouse’s will shall be revoked by operation of law. However, the parties could reconcile at any time and they should just jointly manifest the same to the court where the petition for legal separation was filed.

The following are grounds or causes for legal separation: (1) Physical violence or mental abuse of the petitioner or of the children; (2) Physical violence or pressure to change religious beliefs or political affiliation; (3) Coercing or inducing the petitioner or any of the children to engage in prostitution; (4) Attempt on the life of the petitioner, with intent to kill; (5) Sexual infidelity or perversion such as adultery or concubinage; (6) Contracting of another bigamous marriage anywhere; (7) Habitual alcoholism or drug addiction where marital life has become unbearable; (8) Lesbianism or homosexuality of either party; (9) Conviction of a crime where the penalty imposed is at least six years imprisonment, regardless of pardon; or (10) Abandonment without just cause and without intention of returning for at least one year.

An action for legal separation may be filed within a period of five (5) years from the time of the occurrence of the cause.

It is noteworthy that sexual infidelity and abandonment are grounds for legal separation, but not for annulment or declaration of nullity. However, sexual infidelity, perversion, or abandonment may be a symptom or symptoms of a personality or psychological disorder or defect that may be a ground for declaration of nullity of marriage, but such disorder must incapacitate the spouse from complying with the essential marital obligations. It is also worth noting that physical violence or mental abuse committed by a husband against the wife or their children may also give rise to criminal liability under the provisions of Republic Act No. 9262.

In all legal actions affecting marriage, it is important to remember the policy of the State. Section 2, Article XV of our Constitution provides: “Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” This is the reason why the State, through the Solicitor General and the courts shall always lean towards the preservation of marriage. This is also the reason why there can be no other grounds for annulment, declaration of nullity, or legal separation other than those provided for by law.