Letter to a Lawyer

Dear Attorney,

Good afternoon. I would like to seek your advice on a matter concerning my marriage. My spouse and I got married in 2014, but we have never lived together since our wedding day. We have also had no communication for a long time, and I do not know where my spouse currently resides. Given this situation, is it possible for me to pursue an annulment or any other legal remedy to dissolve the marriage, even if my spouse cannot be located?

Thank you for your assistance.

Sincerely,
A Concerned Citizen

Understanding Annulment Under Philippine Law

The situation described highlights a common issue faced by individuals seeking to dissolve a marriage under Philippine law. Given the absence of a divorce law in the Philippines, annulment and nullity of marriage are the primary legal remedies for individuals in failed marriages. Below is a comprehensive discussion of annulment, the declaration of nullity, and alternative legal remedies, particularly in situations where the other spouse is unreachable.

Annulment vs. Declaration of Nullity of Marriage

Annulment of Marriage
Annulment presupposes that a valid marriage existed but was voidable due to specific grounds that existed at the time of the marriage. A voidable marriage is considered valid until annulled by a court of law. Grounds for annulment under Article 45 of the Family Code include:
- Lack of parental consent (if one party was between 18 and 21 years old at the time of marriage).
- Insanity of one party at the time of marriage.
- Fraud (e.g., concealment of pregnancy by another man, conviction for a crime involving moral turpitude).
- Force, intimidation, or undue influence in obtaining consent.
- Physical incapacity to consummate the marriage.
- Serious sexually transmitted disease at the time of marriage.
Note: The grounds for annulment are limited and must be established with clear and convincing evidence.
Declaration of Nullity of Marriage
A declaration of nullity involves a marriage that is void from the beginning. Such marriages are treated as if they never existed. Grounds under Article 35, 36, 37, and 38 of the Family Code include:
- Lack of authority of the solemnizing officer.
- Absence of a marriage license (except in cases of marriage under exceptional circumstances).
- Psychological incapacity of one or both parties.
- Incestuous or void marriages under Articles 37 and 38.

The Spouse's Absence: Implications for Annulment or Nullity

If one spouse cannot be located, it does not automatically invalidate the marriage. The petitioner must establish a legal ground for annulment or nullity. The spouse’s absence becomes relevant in procedural aspects rather than substantive grounds.

Alternative Legal Remedies for Missing Spouses
- Declaration of Absence
  Under the Civil Code of the Philippines, if a person has been absent for two consecutive years (without communication and unknown whereabouts), they may be judicially declared an absentee.
- Presumption of Death
  If the spouse has been absent for at least four consecutive years (or two years in cases involving danger of death under exceptional circumstances), the present spouse may seek a judicial declaration of presumptive death. This allows the spouse to remarry.
These remedies are different from annulment and nullity proceedings but may be pursued in parallel depending on the situation.

Steps to Pursue Annulment or Nullity Without Spouse’s Presence

File the Petition
The petition must be filed in the Regional Trial Court (Family Court) of the place where the petitioner resides. It must include a comprehensive narrative of the marriage and the grounds for annulment or nullity.
Service of Summons
If the spouse cannot be located, the court may allow service of summons via publication. The petitioner must:
- Execute an affidavit attesting to diligent efforts to locate the spouse.
- Publish the summons in a newspaper of general circulation (for two consecutive weeks).
Default Judgment
If the missing spouse fails to respond within the prescribed period, the court may declare the case as in default. The petitioner may proceed to present evidence ex parte (without the other party's participation).
Hearing and Evidence Presentation
The petitioner must present evidence, including:
- Testimony about the circumstances of the marriage.
- Expert testimony (if psychological incapacity is alleged).
- Documentary evidence supporting the claim.
Decision
The court will evaluate the evidence and render a decision. If the petition is granted, the marriage is dissolved, and the petitioner is free to remarry.

Challenges and Practical Considerations

Cost and Duration
Annulment and nullity cases can be lengthy and expensive. Legal fees, psychological evaluations, and publication costs may deter some petitioners.
Proof Requirements
The burden of proof lies with the petitioner. Courts are strict in evaluating claims, particularly for psychological incapacity, which requires expert evaluation and evidence of behavior rooted in pre-marriage circumstances.
No Divorce in the Philippines
Given the absence of divorce, annulment and nullity remain the only avenues for severing a marriage bond. In contrast, other jurisdictions allow no-fault divorces, simplifying the process.

Conclusion

Yes, you can pursue annulment or nullity of marriage even if your spouse is missing, but the process requires procedural compliance and evidentiary support. Alternative remedies, such as a declaration of absence or presumptive death, may also provide relief. Consulting a competent family lawyer to evaluate your specific circumstances is crucial for a successful petition.