The Philippines remains the only country in the world (aside from Vatican City) without absolute divorce for its majority non-Muslim population. The only legal remedies available to end a civil marriage are declaration of absolute nullity (for marriages void from the beginning) and annulment (for voidable marriages). Both remedies are governed by the Family Code of the Philippines (Executive Order No. 209, as amended) and the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003).
The most common ground invoked today is Article 36 — psychological incapacity — which is a ground for declaration of absolute nullity.
Key Concepts and Distinctions
| Remedy | Legal Effect | When Marriage is Considered Invalid | Can Parties Remarry? | Effect on Children |
|---|---|---|---|---|
| Declaration of Absolute Nullity | Marriage never legally existed (void ab initio) | From the moment of celebration | Yes | Legitimate (Art. 54, Family Code) |
| Annulment of Voidable Marriage | Marriage valid until judicially annulled | From the date of the court decision | Yes | Legitimate (Art. 54) |
| Legal Separation | Marriage remains valid | N/A | No | Legitimate |
Grounds for Declaration of Absolute Nullity (Void ab initio)
The marriage is invalid from the very beginning. No prescription period applies — it can be filed anytime, even after the death of a spouse.
- Either party was below 18 years old at the time of marriage (Art. 35(1))
- No valid marriage license (except when exempt under Art. 27-34) (Art. 35(3))
- Solemnized by a person without authority (except when parties believed in good faith that he had authority) (Art. 35(2))
- Bigamous or polygamous marriage (Art. 35(4))
- Mistake in identity of the other party (Art. 35(5))
- Non-compliance with recording requirement of previous judgment of annulment/nullity or legal separation (Art. 35(6))
- Psychological incapacity of one or both parties to comply with essential marital obligations (Art. 36)
- Incestuous marriages (between ascendants/descendants, brothers/sisters full or half blood) (Art. 37)
- Marriages void for reasons of public policy (between collateral blood relatives up to 4th civil degree, step-parents/step-children, parents-in-law/children-in-law, adopting parent/adopted child, surviving spouse of adopter/adopted, etc.) (Art. 38)
Grounds for Annulment of Voidable Marriages
These marriages are valid until annulled and have prescription periods.
- Lack of parental consent (party 18–21 years old) – must be filed within 5 years after attaining 21 (Art. 45(1))
- Either party was of unsound mind – within 5 years after recovery (Art. 45(2))
- Consent obtained by fraud (non-disclosure of previous conviction of crime involving moral turpitude, concealment of pregnancy by another man, concealment of STD, concealment of drug addiction/homosexuality/lesbianism) – within 5 years after discovery (Art. 45(3))
- Consent obtained by force, intimidation, or undue influence – within 5 years after cessation (Art. 45(4))
- Physical incapacity to consummate (impotence) – within 5 years after marriage (Art. 45(5))
- Affliction with serious, incurable STD existing at time of marriage – within 5 years after marriage (Art. 45(6))
Jurisdiction and Venue
The petition must be filed with the Family Court of the Regional Trial Court in:
- The province or city where the petitioner has been residing for at least six (6) months prior to filing, OR
- Where the respondent has been residing for at least six (6) months, OR
- If respondent is a non-resident, where respondent may be found in the Philippines (at the option of the petitioner).
Who May File
Only the spouses may file during their lifetime. Third parties (children, creditors) may file only for void marriages based on grounds existing at the time of marriage other than Article 36.
Step-by-Step Procedure
Consultation and Case Build-up
Engage a family law lawyer. Gather all documentary evidence. For Article 36 cases, undergo psychological evaluation by a licensed clinical psychologist (preferably one accredited by the court or with extensive experience in court testimony).Preparation of the Petition
The petition must be verified and contain:- Complete facts constituting the ground
- Names and ages of common children
- Properties of the spouses and existing obligations
- Psychological report (mandatory for Art. 36 cases since the 2021 Tan-Andal ruling)
Attachments:
- Marriage certificate (PSA-authenticated)
- Birth certificates of children (PSA)
- Psychological evaluation report
- List of witnesses
- Certificate of no collusion (to be submitted later)
Filing and Payment of Docket Fees
Filing fees range from ₱10,000–₱30,000 if no properties are involved. If properties are involved, fees are based on assessed value (can reach hundreds of thousands). Additional fees: legal researcher’s fee, mediation fee, etc.Raffle and Collusion Investigation
The case is raffled to a Family Court branch. The public prosecutor (OSG or city/provincial prosecutor) conducts a collusion investigation and submits a report within 30–60 days.Service of Summons
Personal service preferred. If respondent cannot be found, service by publication in a newspaper of general circulation (once a week for two consecutive weeks). Cost: ₱20,000–₱50,000.Answer or Default
Respondent has 30 days (if served by publication, 60 days) to file an Answer. If no Answer, petitioner may move to declare respondent in default.Pre-Trial Conference
Mandatory. Issues are defined, stipulation of facts, marking of exhibits. Judicial Affidavit Rule applies (witnesses submit affidavits in Q&A form).Trial
Petitioner presents evidence first:- Testimony of petitioner
- Testimony of corroborating witness(es)
- Testimony of the clinical psychologist (crucial in Art. 36 cases)
Respondent may cross-examine and present counter-evidence.
Decision
Court renders decision. If favorable, it declares the marriage null and void and orders:- Partition/liquidation of properties
- Custody and support of children
- Issuance of Decree of Absolute Nullity
Appeal
Decision may be appealed to the Court of Appeals within 15 days. Appeal period is long (often 2–3 years before CA resolution).Finality and Annotation
Once final (no appeal or appeal dismissed), the court issues Entry of Judgment and Decree of Absolute Nullity. The decree is registered with the Local Civil Registrar where the marriage was recorded and with the PSA. Only after PSA annotation can the parties validly remarry.
Current Jurisprudence on Psychological Incapacity (Article 36)
- Republic v. Molina (1997) – Established the Molina guidelines (incapacity must be grave, antecedent, incurable, proven by expert, etc.)
- Santos v. CA (1995), Chi Ming Tsoi (1997), Marcos v. Marcos (2000) – Classic cases
- Ngo Te v. Yu-Te (2009) – Clarified that illness need not be a recognized DSM disorder
- Tan-Andal v. Andal (G.R. No. 196359, May 11, 2021) – Watershed decision:
- Abandoned strict Molina requirements
- Psychological incapacity is a legal concept, not medical
- No longer requires personal examination by court-appointed expert
- Totality of evidence rule applies
- Clear and convincing evidence standard
- Incapacity must be permanent and must pertain to essential marital obligations (support, cohabitation, fidelity, respect)
Post-Tan-Andal cases (2022–2025) have consistently granted nullity petitions when the totality of evidence shows personality disorders (narcissism, dependent personality disorder, avoidant personality, etc.) that render the spouse incapable of performing marital obligations.
Costs (Approximate, 2025 Metro Manila Rates)
- Lawyer’s acceptance fee: ₱200,000–₱500,000 (Art. 36 cases)
- Psychologist’s fee: ₱50,000–₱120,000
- Filing/legal research fees: ₱15,000–₱50,000
- Publication (if needed): ₱30,000–₱60,000
- Transcript of records/stenographer: ₱50,000–₱100,000
- Miscellaneous (travel, deposition, etc.): ₱50,000+
Total average for contested Art. 36 case: ₱600,000–₱1,500,000
Duration
Uncontested (respondent cooperates): 1–2 years
Contested: 3–7 years (including appeal)
Effects of Final Decree
- Parties regain capacity to marry
- Absolute community or conjugal partnership is dissolved; properties divided 50-50 (unless proven as exclusive)
- Donations propter nuptias are revoked
- Successional rights are extinguished
- Children remain legitimate and retain right to support and inheritance
- Party in bad faith forfeits share in net profits (Art. 43(2))
Important Reminders
- The process is expensive, lengthy, and emotionally draining.
- Success in Article 36 cases now depends heavily on the quality of the psychological report and the lawyer’s presentation of the totality of evidence.
- Legal separation is faster and cheaper but does not allow remarriage.
- Muslims may avail of divorce under the Code of Muslim Personal Laws (PD 1083).
- Recognition of foreign divorce is possible only if the divorce was obtained by the foreign spouse, or under the new rules if both were Filipinos but the divorce was validly obtained abroad by the alien spouse.
This remedy is not a “Philippine divorce” — it is a declaration that no valid marriage ever existed. Parties who remarry without a final decree of nullity commit bigamy (punishable by prisión mayor).
For case-specific advice, consult a competent family law practitioner, as outcomes depend entirely on the evidence presented and the appreciation of the judge.