ANNULMENT AND DECLARATION OF NULLITY OF MARRIAGE

ANNULMENT is the Remedy if the marriage is VOIDABLE or ANNULLABLE; grounds are those provided for by the law alleged to have been violated.

DECLARATION OF NULLITY is the Remedy if the marriage is VOID AB INITIO; grounds are the exceptions to the Lex Loci Celebrationis in Article 26 of the Family Code.

EFFECTS VOIDABLE MARRIAGE VOID MARRIAGECONVALIDATION: by free cohabitation or prescription

CANNOT be convalidated

Property Regime: as established in a valid marriage

Property Relationship:CO-OWNERSHIP (Arts. 147-148, FC)

Children Legitimate if conceived BEFORE the decree of annulment

Children Illegitimate, EXCEPT children of void marriages under Arts. 36, 53, FC

CANNOT be attacked COLLATERALLY May be attacked DIRECTLY or COLLATERALLYCan NO longer be impugned AFTER death of the spouses

Can be IMPUGNED EVEN AFTER death of the spouses

Proper Court to nullify or annul a marriage?

The court of the Country, which the parties are nationals or domiciliaries, is the proper court to nullify or annul a marriage, applying the Nationality Theory.

Important Questions With Reference To Annulment:

1. WHAT COURT HAS JURISDICTION TO DECLARE THAT A MARRIAGE IS ANNULLED?2. WHAT LAW GOVERNS THE ANNULMENT OF MARRIAGE?

1. JURISDICTION TO ANNUL

Regularly Competent Court of the DOMICILE OF THE PARTIES has jurisdiction to declare that a marriage is annulled. However, applying the Nationality Principle, Nationals of the Forum are permitted to sue for annulment IRRESPECTIVE OF THEIR DOMICILE. The State of Domicile, more than any other State, has the greatest interest in the domestic relations of the contracting parties.

What nationality will be the basis, the spouse’s nationality BEFORE or AFTER the marriage?

The nationality of the spouse BEFORE marriage may be made a basis for determining jurisdiction of the court. Where the wife was a national of the forum before marriage, jurisdiction is likewise assumed for one or two reasons:

1) Protection of its own national; and2) The added justification that if the marriage is declared void, there is no possible change of

nationality as a result of the marriage and the court is therefore competent

2. GOVERNING LAW

The law that will determine the CAUSE or GROUND for annulment or nullity of marriage is the law alleged to have been violated. This is generally the place of the celebration (LEX LOCI CELEBRATIONIS), subject to certain exceptions. The law that governs the formal or substantive validity of the contract of marriage also governs the questions as to whether there is a valid cause for annulment.

ARTICLE 26 OF THE FAMILY CODE provides: “All marriages SOLEMNIZED OUTSIDE THE PHILIPPINES, in accordance with the laws in force in the country where they were solemnized, and VALID there as such, shall be VALID IN THIS COUNTRY.” By necessary implication we may say: “If a marriage is voidable where celebrated, it shall also be voidable in our country and if a marriage is void where celebrated, it is also void in this country.” The EXCEPTIONS to this rule is likewise embodied in the same provision with reference to other provisions of the same code, that the marriage:

1) is Contracted by person BELOW 18 (Art. 35, FC);2) is BIGAMOUS (Art. 35, FC);3) Contracted thru MISTAKE IN IDENTITY (Art. 35, FC);4) Failure to comply to Judgement of Annulment Requirements (Arts. 35, 52, 53, FC)5) Contracted by PSYCHOLICALLY INCAPACITATED at the time of the celebration (Art. 36, FC)6) INCENTUOUS (Art. 37, FC)7) AGAINST PUBLIC POLICY (Art. 38, FC)

With reference to the substantive or intrinsic validity of the marriage, Insofar as marriages celebrated in the Philippines are concerned, there is no difficulty where the contracting parties are both Filipino nationals. However, where one or both contracting parties are aliens, the national law of the alien determines whether he possesses the capacity to marry.

Governing Law on Capacity to Contract Marriage (Art. 21, FC) :

1) FOREIGN CITIZEN: Certificate of Legal Capacity to marry issued by their diplomatic/consular officials

2) STATELESS PERSONS or REFUGEES: Affidavit stating circumstances to show capacity to contract marriage

PATERNAL RELATIONS

The law on parental relations include paternity and filiation. PATERNITY/MATERNITY is the relationship or status of a person (parent) with respect to his or her child. FILIATION is the status of a person (child) with respect to his or her parents.

FILIATION OF CHILDREN

1. Naturala) Legitimate (Art. 164, FC)b) Illegitimate (Arts. 165, 175-176, FC)c) Legitimated (Arts. 167-172, FC)

2. By Adoption (R.A. No. 8552 “Domestic Adoption Act” and R.A. No. 8043 “Inter-country Adoption Act”)

What law determines the LEGITIMACY OF A CHILD?

In most countries, the personal law of the father is applied to determine the legitimate relationship. In Germany, the controlling law is the law of the head of the family or “husband of the mother.” In our jurisdiction, this is GOVERNED BY THE COMMON PERSONAL LAW OF THE PARENTS, EITHER DOMICILIARY OR NATIONALITY. Where the parents are of different nationalities, like most countries, the national law of the father shall apply. The presumption of legitimacy is governed by the law of the male parent rather than the law of the forum because presumptions of legitimacy are not rules of evidence but rather rules of substantive law. And the decisive time to determine the applicable law is the time of the child’s birth.

The Doctrine of Immutability of Status is the Theory that states that the status of a child is not affected by the subsequent change of nationality of the parents. However, the rights and obligations of parents and child will be determined by the new nationality. This Doctrine apply to legitimated children, where legitimation is likewise not affected by change of nationality and the rights and duties of parents and child may be affected by it.

The law that governs the relationship and duties between parent and child depends upon the status of the child, whether legitimate, or illegitimate:

1) Legitimate Child – the National law of the father;2) Illegitimate Child –the National law of the mother unless recognized by the father.

Where the Parental Authority over the Child is governed by Personal law of the father, it controls the rights and duties of parents and children, which does not necessary vest such authority solely to the father. Under our laws, reference to the personal law of the father may result in joint exercise of personal authority by father and mother (Arts. 211 and 176, FC)