Category: Marriages & Annulments


Feb 26

In the Philippines, if you would like to regain your capacity to marry, you need to file a case for annulment and pray that you win the battle against your spouse.  It is a long and tedious process of mainly destroying the character of the person you married to prove that the marriage was either: not valid from the beginning or was acquired by force, intimidation, or undue influence.  It is an expensive and traumatic process for the couple and their children.

Last week, the House of Representatives Committee on Population and Family Relations submitted a divorce bill for plenary deliberations and approved a substitute bill that consolidated all proposals to legalize divorce and dissolution of marriage.  Various questions arose from this news: how is divorce different from annulment?  Is it going to be an easier and shorter process than annulment?  Is it going to be cheaper?

These are interesting questions that led us to dig deeper into this topic.  We found remarkable information that can help us better understand and appreciate the proposal.  We hope you find these useful too.

Annulment vs. Divorce

What is the difference between annulment and divorce?

According to www.justia.com, an annulment of marriage is a legal decree that a marriage is null and void.  Annulments are granted when a court makes a finding that a marriage is invalid.  While divorce ends a legally valid marriage, an annulment treats the marriage as if it never existed.

Annulment vs. Declaration of Nullity of Marriage

Annulment applies to a marriage that is considered valid, but there are grounds to nullify it.  While a Declaration of Nullity of Marriage applies to marriages that are void or invalid from the very beginning.

Both annulment and declaration of nullity of marriage need to undergo the necessary court proceeding in order for the separation to be legalized.  Also, for purposes of remarriage, a court order must be released.  Without a court declaration, any subsequent marriages may be voided and the parties involved may be charged with bigamy.

Will legalizing Divorce in the Philippines make the process of separating from one’s spouse simpler?  Will there still be a need for a court proceeding?

Yes, there will still be a court proceeding in order for the divorce to be declared legal.  The committee that approved the bill refers to this as Summary Judicial Proceeding; this means that the legal processes involved in obtaining a divorce have been simplified and essentially, shortened, as compared to the processes observed in annulment.

What are the grounds for Summary Judicial Proceedings of Divorce?

  1. If the couple have been separated for no less than 5 years;
  2. If one of the spouses has remarried;
  3. If the spouses are legally separated for two years or more by virtue of a judicial decree;
  4. If one of the spouses have been sentenced to prison for six years, even if he or she is granted pardon by the courts;
  5. If one of the spouses has undergone surgery to alter his gender.

The summary proceeding (which short-cuts the entire judicial process in getting a divorce) is only applicable to the above situations.  Any other case that does not fall within the above scenarios shall still go through the longer and stricter court proceeding.

Will divorcing one’s spouse be the cheaper alternative to annulment?

Abot-kaya is how the news described divorce in terms of fees and expenses.  This is because the services of a lawyer is optional in divorce.

How will I know if I should divorce or annul my marriage to my spouse?  Am I free to decide which course to take?

This is a topic that is still being discussed by the technical working group that transmitted the bill.  According to their lead, divorce can be likened to a “merciful interment for irremediably dead marriage”.  Meaning, the marriage must have already disintegrated and that there is nothing left to save anymore.  “Only spouses in totally broken marriages and those void from the start are entitled to a grant of absolute divorce.”

Who decides when a marriage can be considered dead is still unclear.

Are you for or against legalizing divorce in our country?  Feel free to share your thoughts on this topic as we keep a close watch on the divorce bill’s progress in Congress and the Senate.

Thank you for dropping by!

 

References:

www.justia.com

http://news.abs-cbn.com

Chips And Nibblers (1)

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Feb 05 (2)

“Ang mahal nang magpakasal ngayon! Kulang ang P200,000 na budget,” says the groom-to-be to his brother who will be standing as the Best Man in his wedding.

“Mas mahal ang annulment.  Ang habang proseso pa.” Quips the brother who, incidentally, just got the court’s decision on the annulment he filed several years back against his now ex-wife.

Last week, the House of Representatives approved a proposed law that will supposedly cut down the costs of a marriage annulment by simply acknowledging the Catholic Church’s decision on the annulment.  Meaning, if your marriage was annulled by the Church, the State will recognize the decision and you no longer need to undergo a judicial process.  Court hearings and attorney’s fees make up the cost of an annulment and by eliminating both, you are able to save hundreds of thousands of hard-earned money – money you will need when you and your spouse go your separate ways.

At the moment, an annulment may cost you between P200,000 to roughly less than half a million, depending on your lawyer’s fees and other expenses during the trial.  That is why it is best that you are fully aware of the entire process of undergoing an annulment before making the decision to dive in and go the whole nine yards.

Today we will share the step-by-step process of a marriage annulment in the Philippines and how it has become such an expensive (not to mention sad and painful) method of ending a relationship.  Take note though that the following should not be taken as legal advice; we researched this information online and are sharing it for information and guidance.

The Annulment Process in the Philippines:

Step 1: READ UP ON THE PROCESS OF ANNULMENT

There are a lot of annulment materials available online that you can freely access.  You may talk to friends and families who went through an annulment; they can give you first-hand information on attorney’s fees, processes, and other information that may not be available online.

Step 2: CHOOSE AN ATTORNEY

When you are 100% sure that you would like to continue with the annulment, you need to choose an attorney who will handle the case for you.  If this is your first time to ever need the services of a lawyer, the following pointers may help:

  • Find a lawyer you can trust.
  • If you should search online, be wary of lawyers and legal websites that promise to get you an annulment in a few months’ time.  There are some who will even tell you-you do not need to appear in court.  These may be signs that the people behind these sites or legal offices are scammers and fixers who are only after the money they could get from you.
  • Consider the cost of hiring a lawyer.  This may vary depending on his experience and track record of handling annulment cases.  Of course, the more popular and successful the lawyer, the higher his charges would be.
  • Narrow your options to 3 or 4 lawyers then schedule your appointments with them before you make your final choice.
  • The lawyer you choose should be able to execute a written contract detailing the terms and conditions of handling your case.  Ask questions and clarify anything that is unclear to you.  It would help to have someone with you who can interpret legal jargons and is used to reading lengthy contracts and agreements.  Remember, you can walk away anytime you feel that your clarifications are not fully satisfied.

STEP 3: THE PSYCHOLOGICAL EVALUATION

Now that you have a lawyer, you will be required to undergo a psychological evaluation to determine your personality and how this translates to the case you are about to file.  Remember, in the Philippines, most annulments are grounded on psychological incapacity, for lack of something worse you can charge your legal spouse.

It is also during the psychological evaluation when you will be asked to narrate your marital history and effectively, draft the basis of the petition and psychological evaluation.

In short, your petition will be drafted in the presence of your lawyer and a psychologist.  So effectively, you will be paying for two professionals right at the onset of the annulment process.

STEP 4: FILING THE PETITION

Your annulment petition will be drafted by your lawyer after the psychologist has released his evaluation.  Your lawyer should send the draft to you for your review and approval before he submits it to court.  You would need to sign the affidavit of non-forum shopping and this will be attached to the petition.  Check that all documents are duly notarized before submission to court.

Once submitted, your case will be assigned to a judge by public raffle.

STEP 5: PRE-TRIAL AND COLLUSION INVESTIGATION

When a judge has been identified to handle your case, it will be scheduled for pre-trial.

An annulment must not be a conspiracy between the spouses involved; meaning, the court needs to prove that only one of the two parties is voluntarily filing the annulment.  The court will need to establish this through a collusion investigation.

Meanwhile, the judge will limit the issues involved in the case and require the parties involved to submit to a mediation.  This is where child support, custody, and visitorial privileges are discussed.

STEP 6: TRIAL

The three witnesses involved in an annulment trial are:

  1. The Petitioner
  2. The Psychologist
  3. A corroborating witness (this could be a friend or relative who knows the couple personally and is aware of the petitioner’s desire to break up the marriage).

The Respondent (or the ex-wife or husband) shall receive a notification of the annulment process.  Respondents seldom appear to contest the petition.

STEP 7: THE DECISION

After all witnesses have taken the stand, the case is submitted for the decision of the court.

There will be a 15-day period for a motion for reconsideration to be filed; this shall begin from the time the decision is rendered and is received by either party.

If the annulment is granted, the Office of the Solicitor General can file a motion for reconsideration and appeal the case to the Court of Appeals.  An annulment is not final until the decision of the Court of Appeals is released.

STEP 8: ANNOTATION WITH THE CIVIL REGISTRAR’S OFFICE

The LCR where the marriage took place has to apply the necessary annotations on the ex-couple’s marriage certificate.  When any of the parties request for a copy of their old marriage certificate, the decision of the court should be clearly printed on the document, as proof that the marriage has been rendered null and void.

Both parties will need the annotated copy of the marriage certificate as proof that they are now free from the bounds of their marriage and may choose to re-marry or, in the case of the ex-wife, revert to her maiden last name in all of her IDs and other documents.

It is a long and painful process, as evidenced by the above narration.  And so it is true that getting an annulment is much more expensive than getting married.

Think first before taking the plunge.

Reference: www.hg.org

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06 - 29 (1)

A common question we receive from readers is how to remarry without going through the process of annulment or divorce.  Of course the obvious answer to this question is there is no other way for a married person to get married again unless his or her spouse dies and makes him a widow/widower.  This answer gave birth to more questions about negligence, abandonment, and presumptive death as grounds for the other party to seek solace in another person’s company.  Questions such as: I haven’t seen or heard from my husband for five years! Can I remarry now? fill our mailboxes almost every day.

Oh love, how could you be so sweet and bitter at the same time?

To help shine some light into this madness, we are sharing the following list of legal requirements for declaration of judicial presumption of death, as lifted from the Public Attorney’s Office website.  It would be safe to assume that the absence of any of these requirements would demerit your case of tagging your spouse as “deceased” and prevent you from marrying again.  If you have further questions, you may get in touch with a lawyer who can explain this to you in detail.

Read on.

“Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse has been absent for four consecutive years and the present spouse has a well-founded belief that the prior spouse was already dead.  Under Article 41 of the Family Code, there are four essential requisites for the declaration of presumptive death:

  1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code;
  2. That the present spouse wishes to remarry;
  3. That the present spouse has a well-founded belief that the absentee is dead; and,
  4. That the present spouse files a summary of proceeding for the declaration of presumptive death of the absentee.”

While the requirements may seem lenient, we must be reminded that the court will study the present spouse’s claim closely and will check if he or she exerted effort to locate the missing spouse.  It is up to the court to decide whether these efforts meet the required degree of stringent diligence prescribed by jurisprudence.  Proofs may be gathered to support the present spouse’s claim that he or she really did try to look for the missing spouse; these could be police reports, public announcements about the missing person, and personal testimonies of people involved in the search.

If you are in a similar situation, we hope the above article helped clear some areas you may still be struggling with.  Again, your best recourse is to seek the assistance of a lawyer.

If you have questions about annulment and separation in the Philippines, drop us a line and we will do our best to search for the answer for you.

Reference: www.pao.gov.ph

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06 - 27

After your annulment has been granted by the court, you need to file the court decree at the Civil Registrar’s office.  You need to do this in order for your marriage certificate (from your previous marriage) to be annotated with the details of the approved annulment.  This will serve as proof that you are now free to marry again.

Most of the time, filing the court decree at the City Hall is included in the petitioner’s lawyer’s services; however, in cases when the petitioner is left to process the documents on his own, he or she may find the following information useful.

Read on.

Step 1:

Register the Court Decree of Annulment at the City or Municipal Civil Registrar’s (C/MCR) Office where the court is functioning.  Secure a Certified True Copy of the Court Decree from the same office.

Step 2:

Secure a copy of the Certification of Registration of the court decree from the C/MCR Office.

Step 3:

Secure Certification of Finality from the court which rendered the decree.

Step 4:

Petitioners are usually advised to allow 60 days before requesting for a copy of the annotated Marriage Certificate.  After 60 days, they may secure a Certified True Copy of the Marriage Certificate from the C/MCR Office where the marriage is registered with remarks/annotations based on the Court Decree of Annulment.

Step 5:

If the PSA does not have it on file yet, the Marriage Certificate has to be endorsed (officially transmitted) to PSA by the C/MCR Office where the marriage was registered.  The petitioner may simply visit the C/MCR and advise that his marriage certificate has to be endorsed to the PSA.

Source: www.psa.gov.ph

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04 - 19

After the wedding party is over and all the gifts have been unwrapped, the newly-wed couple settles back and realizes that life continues in a normal fashion.  Reality sets in sooner than they expect and before long, they find themselves dealing with the same matters they dealt with when they were single.

One such matter is their finances.

While most couples succeed at creating an effective financial plan for their future family, some are not as lucky and find themselves parting ways because of money matters.  One way of settling this sensitive issue between couples is by having a prenuptial agreement.

What are prenuptial agreements and is this something everybody should consider before getting married?  Why do couples frown at the idea of signing a prenuptial agreement only to regret not having one in the end?

We researched on this topic and gathered relevant information that can help soon-to-be husbands and wives appreciate the value of having a prenuptial agreement before taking the plunge.

What is a Prenuptial Agreement?

A Prenuptial Agreement is a contract that covers the provisions on a couple’s division of property in the event of a separation (annulment, legal separation).  It sounds morbid (and oh so unromantic) but it will save you from the legal and emotional complications of separating properties in case the marriage does not work.

Why should a couple consider having a prenuptial agreement?

Contrary to popular belief, a Prenuptial Agreement is open not only to well-to-do couples and celebrities.  Even an average income earner must seriously consider signing one.  Below is a list of probable reasons to consider having a prenuptial agreement:

  1. One of you has children from a previous relationship.Your children from your previous marriage or relationship are heirs to your properties.  You can protect your children’s claims to their inheritance through a prenuptial agreement.
  2. One of you is a national of a country with a different set of rules governing property ownership.Since different countries have different laws regarding property ownership, a prenuptial agreement between you and your foreign national partner will simplify these matters.
  3. One of you is a co-owner of a business or an asset.Once you get married, your spouse automatically becomes a co-owner of a business you co-owned before the wedding.  If your business partners are not open to the idea of having an additional business partner, you may want to consider signing a prenuptial agreement.  This shall put your business partners’ qualms on shares to rest.
  4. One of you owns a considerable amount of assets.Your inheritance, savings from when you were single, or shares in a family business, are assets acquired prior to your marriage.  You have the liberty to choose to manage these assets on your own even after getting married.  To ensure your sole ownership, sign a prenuptial agreement.

In the absence of a prenuptial agreement, what governs the property relations between the spouses?

All properties acquired during the marriage shall be considered conjugal properties where husband and wife share in the property’s ownership.

For a prenuptial agreement to be legal and binding, the couple must both enter into it voluntarily.  Have the document notarized and recorded in the local civil registry.  This must be accomplished BEFORE your wedding date.

Source: http://news.abs-cbn.com/business/06/01/15/why-couples-should-consider-getting-prenup

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04 - 03

When a married couple separates, whether on their own terms or as prescribed by an annulment proceeding, child custody and support become a fundamental issue between the parties.  With whom should the children stay?  How often can their father / mother see them?  How will their basic needs be met?

In the Philippines, custody of children under seven years old is automatically granted to the mother as mandated by Article 213 of the Family Code.  This is applicable whether the child’s birthright is legitimate or illegitimate.  In the same manner, the father is expected to continue providing the needs of his children and not leave the mother to fend for the family on her own.

This arrangement is easier said than done as most post-annulment / separation issues stem from the fact that fathers fail to consistently provide for their children.  Each has his own reason for not being able to live up to what is expected of him (as the provider); others admit that they chose to discontinue financially supporting their children through the estranged wife because of trust issues.

In the midst of these marital (and extra-marital) issues are the children and their escalating living necessities.  This blog receives a lot of questions about child support and legal actions against fathers who fail to provide for their children.  We all have that one friend who is perpetually asking about means to compel her ex-husband to give and give more as the children’s basic needs rapidly become anything but basic.

We ran a research on child support, as dictated by Philippine laws, in an attempt to shed light in this touchy issue.  We hope these information help put your questions on child support to rest, or at least lead you towards the right decisions in upholding the rights of your children.

How much should a father give as financial support to his children?

According to the Family Code (Articles 194, 201, and 202):

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or training for some profession, trade, or vocation, even beyond the age of majority.  Transportation shall include expenses in going to and from school, or to and from place of work.

The amount of support, in the cases referred to in Articles 195 and 196, shall be in proportion to the resources or means of the giver and to the necessities of the recipient.

Support in the cases referred to in the preceding article shall be reduced or increased proportionately, according to the reduction or increase of the necessities of the recipient and the resources or means of the person obliged to furnish the same.

According to the Family Code:

  • The amount of support shall be based on the children’s needs and the father’s capacity to provide (earn).
  • The father is obligated to support his children’s education even after they have reached the age of emancipation.

Can I demand for support from my child’s father even if he is married to another woman (and my child, effectively, is illegitimate)?

Article 195 of the Family Code provides that both legitimate and illegitimate children have the right to receive financial support from their parents.  However, an illegitimate child’s right to support shall only arise if he was duly recognized by his father.

An illegitimate child may prove that he is recognized by his biological father through the following:

  1. Record of birth appearing in the civil register or a final judgment – with the father accomplishing the Affidavit of Acknowledgment / Admission of Paternity found at the back of his birth certificate.
  2. An admission of illegitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

If the father refuses to recognize the child, the mother may seek to the court’s assistance by filing a Petition for Compulsory Recognition and Support.  This will entail hearings and other court proceedings and the mother must be prepared to fight it out in public.

If I win the petition, can I demand the father of my child to reimburse the expenses I incurred in the years that he did not provide for my child?

No; the father’s obligation to financially support the child begins from the date of judicial demand, or once the Petition for Compulsory Recognition and Support is approved by the court.

Do I have the right to demand for financial support from my ex-husband even if he is jobless?

In cases when the children’s father is jobless and has no means of income, financial support may be derived from the separate properties.  If the father does not have a separate property to liquidate, the funds may be taken from his and the children’s mother’s conjugal properties.  It shall be treated as an advance and will be deducted from the ex-husband’s share of the estate when it is liquidated.

Can I sue my ex-husband if he continues to ignore his parental responsibilities?

Filing a case in court to compel the children’s father to continue his obligation to provide for the children should be the last resort.  Yes, a mother can seek the court’s assistance in demanding for child support.  A father’s failure to comply with his obligation despite repeated reminders is a violation of RA 7610 (Special Protection of Children Against Abuse, Exploitation, and Discrimination Act, or RA 9262 – Anti-Violence Against Women and Their Children Act of 2004) and is a criminal offense.

Sources:

www.gov.ph

http://jlp-law.com

http://www.manilatimes.net

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