本文へスキップ

E-mail: jis@goo.jp

Tel. 090-3104-6183

Annulment(English)

Annulment

  • What is Annulment?
      Annulment is a term commonly used by non-lawyers to describe all annulment cases. However, there are two types of petitions that annul marriages. These are:
       1. Annulment of Voidable Marriages
       2. Declaration of Absolute Nullity of Void Marriages

      Let us look at the difference between the two.

  • 1 Annulment of Voidable Marriages
      
    Annulment of Voidable Marriages is a court process that annuls the marital union of a husband and a wife. It presupposes that the marriage was valid from the beginning until the court releases a decision annuling the said marriage.

    Grounds for annulment:
      The Philippines is a catholic nation and we, as Filipinos, deeply honor the holy matrimony. As much as possible, we try to talk and discuss how to make marriage work between the parties involved. However, there are times when there is no other way but to seperate ways. In this case, annulment gives the parties involved a second chance to start their lives all over again.
      However, filing an annulment is not that easy. As stated above, we deeply value the holy matrimony and annulment is but a last resort. This is why, the grounds that can be used for the filing of the annulment petition is limited only to those grounds that are stated in Article 45 of the Family Code. According to Article 45, "a marriage may be annulled for any of the following causes existing at the time of marriage:

    (1) That the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below twenty one, and the marriage was solemnized without the consent of the parents, guardian or person having the substitute parental authority over the party, in that order,UNLESS after attaining the age of 21, such party freely cohabited with the other and both lived together as husband and wife;

    (2) That either party was of unsound mind, UNLESS such party after coming to reason, freely cohabited with the other as husband and wife;

    (3) That the consent of either party was obtained by fraud, UNLESS such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

    (4) That the consent of either party was obtained by force, intimidation or undue influence,UNLESS the same having disappeared or ceased, such party, thereafter, freely cohabited with the other as husband and wife;

    (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable.; or

    (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
  • 2 Declaration of Absolute Nullity of Void Marriages

    On the other hand, there is a petition called petition for"Declaration of Nullity of Void Marriages". This is a court declaration that declares that the marriage itself is null and void from the very beginning. Legally speaking, this means that the marriage itself did not even exist.

    The basis for this petition are Article 35 (Absence of Formal and Essential Requisites of Marriage, Article 36 (Psychological Incapacity), Article 37 (Incestuous Marriage) and Article 38 (Void by Reason of Public Policy) of the Family Code.

    The ground for this petition could be summarized as follows:

    (1) Those contracted by any party below 18 years of age even with the consent of parents or guardians;

    (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing office had the legal authority to do so;

    (3) Those solemnized without license, except those covered by the preceding Chapter

    (4) Those bigamous or polygamous marriages not falling under Article 41;

    (5) Those contracted through mistake of one contracting party as to the identity of the other;

    (6) Those subsequent marriages before the release of the Final Decree of Annulment. of the previous marriage.

    (7) Psychological incapacity to comply with the essential marital obligation of marriage even if such incapacity becomes manifest only after its solemnization.

    (8) Incestuous marriages, whether relationship between the parties be legitimate or illegitimate:
      (a) Betweeen ascendants and descendants of any degree
      (b) Between brothers and sisters, whether of the full or half blood

    (9) Marriages that are void from the beginning due to reasons of public policy
      (a) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree
      (b) Between step-parents and step-children
      (c) Between parents-in-law and children-in-law
      (d) Between the adopting parent and the adopted child
      (e) Between the surviving spouse of the adopting parent and the adopted child
      (f) Between the surviving spouse of the adopted child and the adopter
      (g) Between an adopted child and a legitimate child of the adopter
      (h) Between adopted children of the same adopter
      (i) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.
  • Summary of the Annulment Process

     The annulment is a very complex and time-consuming process. This process could be summarized as follows:

    1 Psychological analysis of the petitioner. We advise that the petitioner takes this analysis in the Philippines. There is a possibility that the expert who did the analysis must take the witness stand to prove presence of psychological incapacity.

    2 Filing of the petition before the Office of the Executive Clerk of Court of the Regional Court of the province or city where the petitioner or the respondent has resided for at least six months prior to the date of filing.

    3 Raffling of cases for assignment to a specific branch of the Regional Court. This would take around one to two weeks.

    4 Service of summons to the respondent and 15-day period to file Answer after such service. This would take around 3 weeks.

    5 Investigation for collusion. This would take around 3 months.

    6 Preliminary conference. This would take around 2-3 months.

    7 Motion for pre-trial conference. There is a duration of 2 to 3 months until the next stage.

    8 Trial proper. This would be held at least two times and would be longer if the petition is contested by the respondent spouse.

    9 Decision. The court may either grant or deny the petition. If the court grants the petition, a decree of annulment shall be issued after the finality of the decision.

  • Annulment, Life in Japan and It's Relations; A Case Study

    Let us look at the following case:

    Ms. B, a Filipina who was married in the Philippines went to Japan using a fake passport, that of Ms. D. Later, since she cannot remarry using her real name, she married a Japanese using her fake identity and lived with her Japanese husband in Japan. Years later, her Japanese husband died leaving all his fortune to his Filipina wife. However, since the name that she used while living in Japan is not her real name but that of Ms. D's , then legally speaking, the legal heir is not Ms. B but Ms. D.

    From here, different problems on inheritance shall surface. For example, during the investigation regarding registration of the inherited estate or during the application for the husband's life insurance claims, there is a possibility that it would be discovered that Ms. B married her husband using a fake identity.

    Hence, it is needless to say that, Ms. B could not inherit her husband's estate. Not only this, there is a possibility that a criminal case could be filed against her for falsification of public documents.

    To avoid such conflicts, it would have been better if Ms. B applied for her passport and other documents using her real name. However, to marry her Japanese husband and stay legally in Japan, she must first annul her marriage between her Filipino husband,

    However, please take note that annulment is not a procedure so that a Filipina can remarry to a Japanese.
    Please remember that there are certain grounds needed to file an annulment and marrying a third party is not one of those grounds.

  • What JIS Can Offer

    Coordination with a specialist lawyer in the Philippines
    Annulment is a legal procedure in the Philippines that is very much different from divorce in Japan. It is a complicated procedure and a lawyer in the Philippines is needed to apply such petition.

    JIS Niizuma Office coordinates with a lawyer in the Philippines who specializes in civil law, specially in the Family Code.

    There are many diversified cases of annulment and it is very hard to generalize it. If you want to know more information regarding this, please do not hesitate to call us. We will be very much willing to assist you. We, with the assistance of specialists in this matter, will honestly advise you regarding the chances whether your petition will be approved or not.

    We are also coordinating with a Filipino lawyer who is also an expert in Civil law with whom you can personally meet and consult here in Japan.
  • Question and Answer

    Question 1: Can one file an annulment any time?

    No, there is a time limit for the filing of an annulment case. The time limit varies depending upon the ground to be used. This could be summarized as follows:

    (1) For the first ground for annulment as stated in Article 45 of the Family Code, that is, "the party whose behalf it is sought to have the marriage annulled was 18 years of age or over but below twenty one, and the marriage was solemnized without the consent of the parents, guardian or person having the substitute parental authority over the party" and after attaining the age of 21 has not freely cohabited with the other and has not lived together as husband and wife, the petition has to be made WITHIN 5 YEARS AFTER REACHING THE AGE OF 21.

    (2) For the second ground, that is, when either party was of unsound mind, and has not freely cohabited with the other as husband and wife after such party came to reason, the petition could be filed ANYTIME BEFORE THE DEATH OF THE PARTY.

    (3) For the third ground, that is, when the consent of either party was obtained by fraud, and has not freely cohabited with the other as husband and wife after gaining full knowledge of the facts constituting the fraud, the petition has to be made WITHIN 5 YEARS AFTER THE DISCOVERY OF FRAUD.

    (4) For the fourth ground, that is, when the consent of either party was obtained by force, intimidation or undue influence, UNLESS the same having disappeared or ceased, such party, thereafter, freely cohabited with the other as husband and wife, the time limit is WITHIN 5 YEARS FROM THE TIME THE FORCE, INTIMIDATION, OR UNDUE INFLUENCE FOUND TO BE DISAPPEARED OR CEASED.

    (5) For the fifth ground, that is when either party was physically incapable of consummating the marriage with the the other, and such incapacity continues and appears to be incurable, the petition has to be filed WITHIN 5 YEARS AFTER MARRIAGE.

    (6)For the last ground, that is when either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, the petition must be made WITHIN 5 YEARS AFTER MARRIAGE.

    Question 2: My wife told me that she was virgin. I later found out that she had sexual relationship with other guys before our marriage. Can I file an annulment using fraud as a ground?

    No. I am sorry to say that you cannot. Chastity is not a ground for an annulment. Article 46 of the Family Code defines fraud as follows.

    (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

    (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

    (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

    (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianisn existing at the time of the marriage.

    Article 46 also clearly states that misrepresentation or deceit as to character, health, rank, fortune or chastity are not grounds for action for the annulment of marriage.

    Question 3: I often hear the term psychological incapacity as a ground for an annulment? Does it mean insanity?

    Article 36 states that "a marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization."

    Although psychological incapacity is a serious psychological disorder that prevents the person to comply with his/ her matrimonial responsibilities. However, this does not necessarily mean insanity.

    To be able to use psychological incapacity as a ground for an annulment, such psychological incapacity must be medical or clinically identified and must be sufficiently proven by experts of the said field. It must also be proven that such incapacity was already existing at the time of the marriage, although the other party was not aware of its existence, and that such incapcity is clinically permanent or incurable.

    Question 4: Who may file an annulment?

    The petition for annulment of voidable marriages could be filed by the injured party in any of the grounds stated in Article 45 of the Family Code and who has not freely cohabited with the other party as husband and wife. It could also be filed by the parents, guardian or person who has legal charge over the contracting party who is insane or who was 18 years old or over but below 21 at the time the marriage was solemnized. However, there is a time limit for the filing of this application. For more information, please refer to Question 1.

    On the other hand, the petition for declaration of absolute nullity of void marriages could be filed by only the husband and wife. Furthermore, there is no time limit for submission of this petition.

    Question 5: Where can I file an annulment case?

    The Petition for an Annulment in the place of your residence or the place of residence of your husband or wife.

    Question 6: I have been seperated with my husband for more than ten years now. Can I now remarry?

    This is one of the most common misconception regarding annulment. Many think that not living with each other for quite some time would make the marriage itself to be void or invalid. However, this is not true. Without the proper declaration from the court, the said marriage is valid and both parties could not contract marriage to a third party. Marriages contracted without getting a decree for the dissolution of the first marriage are considered null and void and is punishable as a crime in the Philippines.

バナースペース

JIS行政書士事務所

東京都行政書士会 板橋支部 所属
代表 新妻雄次
TEL: 090-3104-6183
E-mail: jis@goo.jp