Annulment and Declaration of Nullity: Grounds, Steps and Effects

Nullity or Annulment: Which One Fits

People say "annulment" for both, but the law has two different cases:

• Declaration of nullity (absolute nullity): the marriage was void (never valid) from the start. Only the husband or the wife can file, and there is no deadline: the right to file does not expire (prescribe) under Art. 39.
• Annulment: the marriage was voidable, meaning valid until a court cancels it. Each ground has a filing deadline and a list of who may file (Art. 47).

Both are filed in the Family Court (a Regional Trial Court that handles family cases). For a side-by-side look at legal separation and foreign divorce, see annulment vs legal separation. There is still no general divorce law for most Filipinos; see is there divorce in the Philippines? If you married a foreigner who divorced you abroad, see recognition of a foreign divorce instead.

The Grounds (Legal Reasons)

Void marriages (declaration of nullity):

• Art. 35: a party was under 18, even with parental consent; the officiant had no authority (unless either party honestly believed they did); no Marriage License, unless an exception applies; a bigamous or polygamous marriage; a mistake about the identity of the other person; and a later marriage that is void under Art. 53.
• Art. 36: psychological incapacity. A party, at the time of the wedding, was unable to carry out the essential duties of marriage, even if it only showed later.
• Art. 37: incestuous marriages, between parents and children or grandchildren of any degree, and between brothers and sisters, full or half blood.
• Art. 38: marriages void for public policy, such as between cousins and other blood relatives up to the fourth civil degree, between step-parents and step-children, between parents-in-law and children-in-law, and between adopting parents and adopted children.

Voidable marriages (annulment), Art. 45: no parental consent for a party aged 18 to 21; insanity; consent obtained by fraud; consent obtained by force, intimidation or undue influence; physical inability to consummate the marriage that appears incurable; and a serious sexually transmissible disease that appears incurable. Some of these can no longer be used if the couple freely lived together afterwards. The table of deadlines is in our annulment vs legal separation guide.

Psychological incapacity after Tan-Andal. In Tan-Andal v. Andal (G.R. No. 196359, 11 May 2021), the Supreme Court said psychological incapacity is a legal concept, not a medical illness or personality disorder. It does not have to be diagnosed by a psychologist or psychiatrist who examined the spouse; people who knew the spouse before and during the marriage can describe their behavior. It must be serious, already present at the time of the wedding, and lasting, and it must be proven by clear and convincing evidence (strong proof). Not getting along, falling out of love or infidelity alone is not enough.

The Court Process Step by Step

The Supreme Court's Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC, in effect since 15 March 2003) sets the steps:

1. Petition. A lawyer prepares a petition with the facts, the children, the property regime and the properties. You must sign the verification and certification against forum shopping (sworn statements that it is true and not filed elsewhere) personally.
2. Filing. It is filed with the Family Court of the province or city where you or your spouse has lived for at least six months before filing. Within five days of filing, copies must be served on the Office of the Solicitor General (OSG) and the city or provincial prosecutor.
3. Summons and answer. Your spouse is served and has 15 days to answer (30 days if served by publication in a newspaper because they cannot be found). The court cannot declare them in default (decide against them for not answering).
4. Collusion check. If your spouse does not answer, or does not dispute the case, the court orders the public prosecutor to investigate whether the two of you are working together to fake the case (collusion). The prosecutor reports within one month. If there is collusion, the case is dismissed.
5. Pre-trial and trial. The judge hears the evidence: your testimony, witnesses, and often a psychologist or psychiatrist in psychological incapacity cases. The judge cannot decide just because the spouses agree; the ground must be proven. The court can close the hearing to the public to protect privacy.
6. Decision. The decision becomes final if no motion for reconsideration or appeal is filed within 15 days from notice. The State, through the OSG or the prosecutor, can also ask the court to reconsider or appeal.
7. Property, children and decree. The court settles the property, custody, support and the children's presumptive legitimes (their reserved share of inheritance). The final Decree of nullity or annulment is issued only after the judgment and the property partition are registered and the presumptive legitimes are delivered.

How long it takes. The rule sets deadlines for some steps but not for the whole case. The time depends on how busy the court is, whether your spouse can be found and contests the case, how many witnesses there are, and whether anyone appeals. Ask the lawyer handling the case for a realistic estimate.

What It Costs

There is no fixed price for an annulment, so we do not quote one.

• Court fees: filing fees under Rule 141 of the Rules of Court, computed by the Clerk of Court when the petition is filed, plus costs such as publication if your spouse cannot be found.
• Psychologist or psychiatrist: in psychological incapacity cases, many petitioners present an expert. Fees vary.
• Lawyer's fees: agreed with the lawyer, and they vary widely.

If you cannot afford a lawyer, the Public Attorney's Office (PAO) gives free legal help to people who pass its indigency test (a check that you cannot afford a lawyer), and the Integrated Bar of the Philippines (IBP) has legal aid offices. People who qualify as indigent can also ask the court to excuse them from paying filing fees.

Effects on Children, Property and Surname

• Children. Children conceived or born before the decision in an Art. 36 (psychological incapacity) case becomes final, and children of an annulled marriage, are legitimate (Art. 54). Children of other void marriages are illegitimate (Art. 165) and, under Art. 176, use their mother's surname unless the father has recognized them (see using the father's surname). Either way, both parents must still support them. The court decides custody and support, with the children's welfare first; see child support.
• Property. For an annulled marriage, and for a void marriage under Art. 40, the property regime is liquidated (settled and divided) under Arts. 50 and 51, and the spouse who acted in bad faith loses their share of the net profits. For most other void marriages, property bought together while living together is generally shared under the co-ownership rules of Arts. 147 and 148.
• Presumptive legitimes. The common children receive their presumptive legitimes, in cash, property or sound securities, before the decree is issued.
• Surname. A married woman may use her husband's surname but is not required to. After an annulment, Art. 371 of the Civil Code says she must go back to her maiden name if she was the spouse at fault; if she was not, she may choose to keep her husband's surname unless the court says otherwise or either of them marries again.
• Inheritance. Once the decree is final, the former spouses no longer inherit from each other without a will.

After the Decision: PSA Annotation

The decision does not update your records by itself. Under A.M. No. 02-11-10-SC:

1. Get the Certificate of Finality and the Entry of Judgment from the court.
2. Register the decision and the Decree with the Local Civil Registrar where the marriage was recorded and the Local Civil Registrar where the Family Court is. Report to the court within 30 days of receiving the Decree that it has been registered.
3. The Local Civil Registrar forwards the papers to the Philippine Statistics Authority (PSA). After that, request a PSA Marriage Certificate with the annotation. Your CENOMAR will also show it.

Only after the property is settled, the presumptive legitimes are delivered and everything is recorded can you safely marry again. A new marriage before these steps can be void under Arts. 52 and 53. Bring the annotated PSA Marriage Certificate when you apply for a new Marriage License.