Annulment Without the Spouse’s Consent and Property Division
A comprehensive guide under Philippine law (Family Code, jurisprudence, court rules)
(Updated to August 2024; for information only, not legal advice)
1. The Big Picture
In the Philippines a marriage may be (a) void ab initio or (b) voidable.
- Void marriages are attacked by a petition for declaration of nullity (e.g., psychological incapacity under Art. 36, absence of a marriage licence, bigamy).
- Voidable marriages are ended by a petition for annulment (e.g., lack of parental consent, fraud, force/intimidation).
Either type may be filed unilaterally; the other spouse’s consent is never required. The respondent’s only obligatory participation is to be served with summons and given a chance to answer. If he or she refuses, cannot be found, or simply ignores the case, the court proceeds by default.
2. Key Statutes & Rules
| Source | What it covers |
|---|---|
| Family Code of the Philippines (Exec. Order 209, 1987) | Arts. 35–54 (nullity, annulment, property liquidation) & Arts. 147‑148 (property of unions in fact) |
| Rule on Nullity/Annulment of Marriage (A.M. No. 02‑11‑10‑SC, 2003) | Special procedure before Regional Trial Courts‑Family Courts |
| Rules of Civil Procedure (2020 revision) | Default, summons, publication, commissioners for liquidation |
| Civil Code & Tax Code | Conjugal partnership pre‑1988, taxes on partition |
| Land Registration Act & Civil Registry Law | Annotation of decrees (Arts. 52‑53 FC) |
3. Grounds in Which Only One Spouse Moves the Case
| Void marriage (Nullity) | Voidable marriage (Annulment) |
|---|---|
| Art. 35 (No licence) | Art. 45(1) – Lack of parental consent (18‑21 yrs) |
| Art. 36 – Psychological incapacity | Art. 45(2) – Insanity at marriage |
| Art. 37/38 – Incestuous/prohibited unions | Art. 45(3) – Fraud (e.g., concealment of crime, pregnancy by another) |
| Bigamous or polygamous (Art. 35[4]) | Art. 45(4‑6) – Force, impotence, STD |
In practice, psychological incapacity is the most popular ground when only one spouse is willing.
4. Procedural Roadmap When the Other Spouse Will Not Cooperate
- Draft & file the petition in the Family Court of the RTC where either spouse has resided for the last 6 months (Rule 5, §2).
- Summons & service
- Personal service is first attempted.
- If evasive/abroad: subs tituted service, then court‑ordered publication (Rule 14, §16 and A.M. 02‑11‑10).
- Collaboration with government lawyers
- Public Prosecutor reports on collusion.
- Office of the Solicitor General (OSG) receives records and may oppose or endorse the petition even if the spouse defaults.
- Judicial conference; if respondent is absent, petitioner’s evidence is received ex parte.
- Decision; becomes final after 15 days.
- Entry of judgment + Registration
- Final decree is recorded with the Local Civil Registrar (LCR) and, for real property, with the Registry of Deeds (Art. 52).
- Without this annotation, remarriage is void (Art. 53).
- Liquidation of property (see § 6‑8 below).
5. Evidentiary Standards When Only One Spouse Testifies
- Clear and convincing evidence—more than preponderance but less than proof beyond reasonable doubt.
- Medical or psychological reports are advisory, not mandatory, but usually decisive in Art. 36 cases.
- Testimony of the lone petitioner must be corroborated by:
- relatives/friends who observed the spouse’s condition;
- documents (texts, emails, medical records);
- proof of attempts at reconciliation.
- The court is not allowed to grant annulment by mere agreement of the parties (Rule 2, §3).
6. Property Regimes Affected
| Marriage date / contract | Governing regime | Code reference |
|---|---|---|
| After 3 Aug 1988 (no pre‑nup) | Absolute Community of Property (ACP) | Arts. 75‑92 FC |
| Before 3 Aug 1988 (no pre‑nup) | Conjugal Partnership of Gains (CPG) | Arts. 109‑133 CC |
| With valid pre‑nuptial agreement | Whatever the contract states | Art. 77 FC |
| Void marriages in good faith of both parties | Co‑ownership under Art. 147 | “Union in fact” rules |
| Void marriages in bad faith of either party | Forfeiture under Art. 148 | Guilty spouse loses share beyond that acquired by own earnings |
7. Liquidation and Division After the Decree
7.1 Voidable marriage annulled (Art. 50 ↔ 52 FC)
- Inventory & valuation by three commissioners or by agreement.
- Reimbursement
- Each spouse gets exclusive property back.
- Net community/partnership property divided 50‑50 unless a pre‑nup says otherwise.
- Creditors are paid pro rata before any distribution (Art. 51).
- Children’s legitime is set aside from each parent’s share (Art. 51).
- File a project of partition; court approves and orders annotation in LCR and Registry of Deeds.
7.2 Void marriage declared null
If both spouses were in good faith (Art. 147):
| Category | Rule |
|---|---|
| Wages & salaries each keeps what he/she earned. | |
| Acquired jointly through joint effort (even if only one earned income) | Split 50‑50. |
| Exclusive properties proven by title or deed remain exclusive; doubts resolved in favor of community. |
If one or both were in bad faith (Art. 148):
| Party | Share in jointly‑acquired property |
|---|---|
| Guilty spouse | Only what he/she can prove by exclusive effort; no share in other’s earnings. |
| Innocent spouse & common children | 50 % |
| Children of guilty spouse with another partner | 50 % of guilty spouse’s half (i.e., 25 % overall), divided equally |
Property acquired by only one spouse using exclusive funds always reverts to that spouse, with reimbursement rules similar to trust law.
8. Tax and Registration Consequences
- Capital Gains Tax and Documentary Stamp Tax are not imposed on court‑ordered partition or liquidation (BIR Ruling 013‑13), but registration and transfer fees still apply.
- Estate tax: an annulled spouse retains status as compulsory heir to the other until the decree becomes final and annotated.
- Failure to annotate final decrees triggers administrative fines and voids any subsequent transfers or remarriage (Arts. 52‑53).
9. Effect on the Children
| Aspect | Voidable (annulment) | Void (nullity) |
|---|---|---|
| Legitimacy | Children remain legitimate (Art. 45‑§2 FC) | Children are legitimate if parents were in good faith or if conceived before finality; otherwise they are illegitimate but entitled to legitime & support (Art. 147 ¶2) |
| Custody | Decided in the same case per best‑interest rule (A.M. 03‑04‑04‑SC) | |
| Support & visitation | Orders are executory immediately; non‑payment may lead to contempt or criminal action (RA 9262) |
10. Debts, Liens and Third Parties
- Community or conjugal debts are paid from the common mass before distribution.
- Mortgages registered before the decree survive; lenders can still foreclose.
- Creditors who were not summoned may attack the liquidation within four years on fraud grounds (Art. 1390 Civil Code).
11. After‑Annulment Remarriage Checklist
- Decree is final (15 days lapsed, no appeal).
- Certificate of Finality issued by the clerk of court.
- Register decree + partition in the LCR of the place where the marriage was recorded and in the civil registries of both spouses’ birthplaces.
- For real property, annotate on each Torrens title.
- Present certified true copies to the PSA; new annotated PSA‑issued CENOMAR will allow the next marriage licence.
12. Typical Timeline When Respondent Defaults
| Stage | Approx. duration* |
|---|---|
| Filing to summons | 1‑2 months |
| Publication & prosecutor’s report | 2‑4 months |
| Trial (ex parte) | 3‑6 months |
| Court decision | 2‑3 months |
| OSG review (optional appeal period) | 1‑3 months |
| Entry of judgment | 1 month |
| Liquidation & partition | 6‑12 months (longer if real estate involved) |
*Delays vary by court docket and whether the OSG files an appeal.
13. Common Misconceptions
| Myth | Legal reality |
|---|---|
| “Both spouses must sign the petition.” | Only one spouse files; the other may default. |
| “If my spouse ignores the case, the marriage stays valid.” | Court can grant annulment/nullity in default. |
| “Declaring the marriage void instantly separates property.” | Liquidation is a separate phase and must be court‑approved. |
| “All property automatically goes 50‑50.” | Depends on regime, good faith, exclusive proof, creditors. |
| “Children become illegitimate after annulment.” | Not true for voidable marriages; even in void marriages legitimacy can subsist if parents were in good faith. |
14. Leading Cases to Know (Supreme Court)
| Case | G.R. No. & Date | Take‑away |
|---|---|---|
| Republic v. Molina | 108763, Feb 13 1997 | Strict guidelines on Art. 36 (psychological incapacity). |
| Santos v. Court of Appeals | 112019, Jan 4 1995 | First case recognizing Art. 36. |
| Te v. Te | 161793, Feb 13 2009 | Liquidation must precede remarriage (Art. 52‑53). |
| Montemayor v. Bundalian | 149335, Jan 2 2002 | Annotation on titles required before transfer. |
| Tan‑Andal v. Andal | 196359, May 11 2021 | Modernized standards for psychological incapacity—now a “legal”, not medical, concept. |
| Alcantara‑Malibiran v. Alcantara | 223355, Oct 8 2019 | Good‑faith co‑ownership under Art. 147 applies only until finality of decree. |
15. Practical Tips for a Solo Petitioner
- Gather documentary proof early: marriage certificate, children’s birth certificates, property titles, bank records.
- Secure expert evaluation if pleading Art. 36; include spouse’s history even without direct interview.
- Budget realistically: filing fees ≈ ₱5‑10 k plus ₱2‑3 k sheriff’s fees; professional fees vary widely (₱120‑₱350 k typical).
- Plan for property liquidation—consider engaging an appraiser and a CPA early.
- Keep close contact with the OSG; a well‑documented, non‑collusive record speeds up its review.
16. Conclusion
A Philippine marriage can be dissolved without the other spouse’s consent through a petition for annulment or declaration of nullity. The court merely ensures that the absent spouse is notified and that no collusion or fraud taints the action.
After the decree, division of property is not automatic. It follows distinct rules depending on whether the marriage was voidable or void, on the spouses’ good or bad faith, on the date of marriage, and on any existing pre‑nuptial agreement. Creditors, children’s rights, taxes, and registry annotations must all be addressed before the parties can safely move on—especially if they intend to remarry or transfer real estate.
Because each case is fact‑sensitive and procedure‑laden, anyone contemplating a solo petition should obtain competent counsel to navigate evidentiary pitfalls, protect property rights, and implement the liquidation properly.