Annulment vs. Legal Separation vs. Declaration of Nullity—Why the Distinction Matters
In the Philippines, there is still no absolute divorce (save for Muslims under the Code of Muslim Personal Laws and foreign divorces that are later recognized). A spouse who wishes to end a marriage must fit the facts into one of three Family-Code remedies:
| Remedy | Statutory Basis | Effect on Right to Remarry |
|---|---|---|
| Declaration of nullity (void ab initio marriages) | Arts. 35, 36, 37, 38, 40 FC | Yes—spouses are treated as never having been married. |
| Annulment (voidable marriages) | Art. 45 FC | Yes—upon finality of decision and registration. |
| Legal separation | Art. 55 FC | No—the marriage subsists; only bed-and-board are severed. |
Neither sexual infidelity nor abandonment appears among the six exclusive grounds for civil annulment in Article 45; they are, however, expressly listed in Article 55 as grounds for legal separation. They can also figure, indirectly, in a petition for declaration of nullity under Article 36 (psychological incapacity). Understanding how these behaviors interplay with each remedy is critical.
1. Sexual Infidelity
1.1 As a Ground for Legal Separation
Article 55(8) of the Family Code classifies “sexual infidelity or perversion” as an independent ground. Required proof:
- Commission of the act (adultery/concubinage is not required, but evidence must be clear and convincing);
- No condonation (Art. 56);
- Action filed within five (5) years from discovery (Art. 57).
The decision results in separation of property under Art. 63(2) and disqualifies the offending spouse from any share in the net profits of the absolute community or conjugal partnership (Art. 63(3)).
1.2 As Evidence of Psychological Incapacity (Art. 36)
Philippine jurisprudence treats infidelity as symptomatic rather than determinative. Leading cases:
| Case | Ruling |
|---|---|
| Chi-Ming Tsoi v. CA (G.R. 119190, Jan 16 1997) | Serial womanizing was not enough; psychological incapacity must relate to marital obligations and be grave, antecedent, and incurable. |
| Marcos v. Marcos (G.R. 136490, Oct 19 2000) | Long-standing infidelity coupled with irresponsibility and abandonment satisfied Art. 36. |
| Tan-Andal v. Andal (G.R. 196359, May 11 2021) | Refined the Molina guidelines: condition need only be incurable within the scope of the spouse’s means and proven by “competent evidence,” not necessarily expert testimony. Repetitive, compulsive philandering, if rooted in a clinically recognized disorder, can qualify. |
Thus, mere adultery ≠ annulment. The petition must demonstrate a psychological disorder that makes the spouse persistently unable to be faithful.
1.3 Criminal and Civil Overlay
- Adultery (Art. 333, RPC) and concubinage (Art. 334) remain crimes, but conviction is not a prerequisite for family-court relief.
- Victims may invoke RA 9262 (Anti-VAWC) for economic or psychological abuse arising from infidelity, potentially leading to protection orders while the main case is pending.
2. Abandonment
2.1 As a Ground for Legal Separation
Article 55(10) requires “abandonment … without justifiable cause for more than one (1) year.” Key points:
- “Abandonment” = total desertion of the marital home and failure to provide support.
- One-year period is counted continuously; sporadic visits restart the clock.
- Action must likewise be filed within five years from the last act of abandonment (Art. 57).
2.2 As Evidence of Psychological Incapacity
Consistent, unjustified desertion can be a manifestation of a deeper psychological disorder:
- Dedel v. CA (G.R. 151867, Jan 29 2004): husband’s repeated disappearances and refusal to work indicated immaturity amounting to incapacity.
- Republic v. Quizon (G.R. 200165, Feb 13 2017): abandonment alone, lacking medical or other proof of an underlying condition, failed.
The current Tan-Andal standard no longer demands proof of the root cause by a psychologist per se, but reliable evidence (medical records, witness accounts) must still show that the incapacity existed before or at the time of the marriage and remains incurable.
2.3 Ancillary Remedies
- Support: Spouse may file a separate petition for support pendente lite.
- VAWC: Economic abuse for non-support is punishable; barangay protection orders can compel financial aid.
3. Strategic Pathways When Facing Infidelity or Abandonment
| Goal | Tool | Key Advantages | Key Limitations |
|---|---|---|---|
| Freedom to remarry | Art. 36 petition (nullity) or Art. 45 annulment (if facts fit other grounds) | Ends marriage, allows remarriage; dissolves property regime | High evidentiary bar; costly psychological work-up; OSG opposition |
| Asset protection, fault-based damages | Legal separation (Art. 55) | Speedier; faulting spouse loses share in profits; victim keeps use of marital name | Cannot remarry; conjugal property must still be liquidated |
| Immediate relief from violence or non-support | RA 9262 cases + protection orders | Quasi-criminal; speedy ex-parte orders; can coexist with Family-Code case | No dissolution of marriage |
| Criminal vindication | Adultery/concubinage; RA 9262 | Deterrent; may pressure settlement | Criminal burden of proof; reconciliation bars action |
4. Procedural Snapshot (Family-Court Action)
- Verified petition with detailed narration, jurisdictional facts (Art. 6 FC), and prayer.
- Psychological evaluation (typical but not mandatory after Tan-Andal).
- Payment of filing fees (₱ ~10,000-20,000 + sheriffs’ fees; indigents may seek pauper litigant status).
- Summons to respondent; mandatory Fiscal/OSG appearance.
- Pre-trial (attempt at reconciliation); referral to Mediator.
- Trial: direct testimony via judicial affidavits, cross-examination, expert testimony.
- Decision; if granted, OSG has 15 days to appeal.
- Entry of judgment; registration with Local Civil Registrar, NSO/PSA, and Phil. Statistics Authority.
- Issuance of authority to remarry (for nullity/annulment).
Average timeline: 2 – 4 years, often longer if appealed. Costs vary from ₱ 250,000 upward in Metro Manila (professional and psychological fees drive the bill).
5. Effects on Property, Custody, and Succession
| Topic | Annulment / Nullity | Legal Separation |
|---|---|---|
| Property regime | Dissolved; liquidation; share depends on fault (Art. 50-51, 63) | Dissolved; offending spouse loses share in profits but not in capital |
| Custody | Best-interest test; children under 7 usually with mother unless unfit (Art. 213) | Same |
| Support | Continues for common children; ex-spouse may still claim support if destitute | Same |
| Succession | Successional ties severed upon finality for void/voidable marriages | Still spouses; may inherit unless disqualified for cause of disinheritance |
6. Canon Law (Church) Annulments
A declaration of nullity by a Catholic tribunal is religiously effective but civilly impotent unless the parties separately obtain a civil decree. However, evidence gathered in the canonical process (psych reports, testimonies) can bolster an Art. 36 petition.
7. Reform Outlook
Multiple absolute-divorce bills have passed one House of Congress but stalled in bicameral sessions (latest: House Bill 9349, approved on third reading in May 2024). Unless enacted, litigants must continue navigating annulment/nullity or live with legal separation.
Key Take-aways
- Infidelity and abandonment alone do not automatically annul a marriage. They directly ground legal separation and may support but seldom constitute psychological incapacity.
- Proof hierarchy matters: concession, documentary evidence (texts, emails, hotel receipts), testimony, and expert findings must converge to satisfy the “clear and convincing” standard.
- Timeliness: Legal-separation actions are perishable (five-year prescriptive period). Art. 36 petitions have no prescriptive period, but evidence of antecedence grows colder with time.
- Remarrying requires a successful annulment/nullity case—legal separation is insufficient.
- Victims should layer remedies: seek RA 9262 protection, provisional support, and criminal prosecution alongside the main family-court action when warranted.
This article is for informational purposes only and is not a substitute for individualized legal advice. Statutes and jurisprudence cited: Family Code of 1987 (E.O. 209); Tan-Andal v. Andal, G.R. 196359 (2021); Republic v. Molina, G.R. 108763 (1997); Chi-Ming Tsoi v. CA, G.R. 119190 (1997); Marcos v. Marcos, G.R. 136490 (2000); Dedel v. CA, G.R. 151867 (2004); Republic v. Quizon, G.R. 200165 (2017); Revised Penal Code Arts. 333-334; RA 9262.