How to nullify marriage in conservative Philippines

ALL that comes together will eventually fall apart. This is a law of nature that applies to every thing, every body, and every situation. Nothing is permanent. Change will come, it’s just a matter of time and method. And nowhere is this principle most dramatically (if not theatrically) fleshed out than in the human endeavor called marriage.

Though they swore to cherish each other forever, married couples will separate, at some point, either through death, divorce, separation, or annulment.

And annulment has been in the news lately largely because of Ruffa Guiterrez’s teary declaration that her marriage to Turkish Yilmaz Bektas is over and that she is seeking to have it annulled.

What is this animal?

Technically, explains Atty. Ana Cristal of the Women’s Legal Bureau Inc., annulment is called “Petition for Nullity of Marriage” and falls under Article 36 of the Family Code (1986). While divorce tears the marriage asunder at the time the court decides (but not in the Philippines where divorce is not legal), annulment renders the marriage null and void from the start or “ab initio.”

“Mas grabe ito kasi from the very beginning void yung marriage,” says Atty. Cristal. Strictly speaking all those years the couple were together, good or bad, might as well have been a product of their imagination.

What voids a marriage?

Marriages in the Philippines can be annulled on the following grounds:

1. If, at the time of the marriage, either party was 18 years of age but below 21, and got     married without their parents’ or guardians’ consent.

2. The consent of either party was obtained by fraud.

3. Either party was forced into the marriage.

4. Sexual impotence.

5. Either party has a serious and incurable sexually-transmitted disease.

6. Either party is psychologically incapacitated.

According to Atty. Cristal, psychological incapacity is the most common and most freely interpreted provision of the petition. The ground it covers is so vast, she says, that it can accommodate almost anything, as long as you can prove it in court.

Once a lawyer accepts an annulment case, she refers the petitioner (one who initiates the process) and respondent (the other half) to a psychologist (or psychiatrist) who will conduct tests and interviews to evaluate their personalities. The psychologist’s evaluation will be attached to the petition along with the marriage contract and the birth certificates of their children, if any. Then the petition will be filed in a Family Court where the parties live.

A Family Court is a Regional Trial Court (RTC) that specializes in domestic cases like child custody, spousal abuse, etc.. The Office of the Solicitor General is copy furnished with the petition – that’s a must. The judge will then give the fiscal 20 days to investigate the case. This usually means having the fiscal snoop around for signs of “collusion” – meaning both petitioner and respondent are really in cahoots so they can get their annulment.

The pre-trial proceedings that follow, Atty. Cristal says is “matagal.” It involves marking the evidence, discussing the custody and support of the children, etc. When the details are settled, the trial begins. This is the time both parties are called to testify and the psychologist and witnesses – often a common friend or family member – are presented. At the end of the trial, the the judge has 30 days to either deny or grant the annulment.

“In case it’s denied, anong recourse nung petitioner? I-appeal sa Court of Appeals, pag denied pa rin, sa Supreme Court,” according to Atty. Cristal. But she was quick to add that the court seldom denies, “kasi in reality most of (the couples), may ibang pamilya na, they are living in sin, kaya tinutulungan na lang ng court na iayos ang buhay nila.” Overall, this process can take a couple of months to more than a year.

Questions, questions

What if the respondent (the spouse who didn’t file) does not want to cooperate?

Atty. Cristal explains that the process will proceed with or without the cooperation of the respondent. In fact, she emphasizes, respondents are mistaken when they tell their spouses, “Hindi ko pipirmahan yan.” Says Atty. Cristal, “E ano bang pipirmahan mo, wala naman.” In fact, the objections of the other partner make it easier for the fiscal to prove there is no collusion between parties. Maski na pumalag ang partner, the petition to nullify a marriage is deemed served simply by running it in a national publication, much like a classified ad.

If the respondent is missing, the court will rely on the testimony of the petitioner and one witness, often a common friend or family member who knows details of the couples’ situation. And most importantly, the court puts a lot of weight on the testimony of the psychologist, the lone expert witness who can prove “psychological incapacity.”

Back in the day, the court didn’t need a psychologist. Everything was “alleged,” according to Atty. Cristal. But in 1997, Supreme Court Chief Justice Panganiban ruled that psychological incapacity should be “grave, severe, incurable and existing prior to the marriage.” So an expert witness, the psychologist, became a necessity.

Atty. Cristal admits that psychologists are just as adept at impressing the court with their jargon and logic. For example:

Q: Why incurable?
A: Because the respondent does not accept that something is wrong in him, so we cannot cure him. He won’t go to therapy or take medication. So he’s incurable.

Q: Why do you say he had it prior to marriage?
A: Kasi it developed when he was young. Nag-manifest lang nung matanda na.

Q: How do you know that the petitioner is telling the truth if you were not able to interview the respondent (in case he didn’t cooperate)?
A: Because the test we gave her (petitioner) shows she is consistent, telling the truth, and not lying.

The psychologist, the petitioner and a common friend can testify in court and that’s enough to get a favorable ruling.
Costs

A favorable ruling is 90 percent in the bag if the lawyer knows what she’s doing. Atty. Cristal advises that a petitioner get a good lawyer. This means someone who knows which family court is “friendly” (the judge is not averse to annulment), and which psychologist to hire.

But annulment costs money. A petitioner would do well to prepare a P100,000 kitty to cover all expenses. A psychological test alone costs P20,000 per test (and there can be several tests), plus P3,000 for every court appearance. Atty. Cristal reveals that some lawyers can charge up to P150,000 – a fee that includes non-appearance in court for petitioners who live abroad. But she herself has done cases pro-bono, and recalls the case of a woman she represented who was constantly beaten by her husband and didn’t have a centavo to her name.

Despite the cost of this process, Atty. Cristal says that her office alone accepts two new cases a week. She admits she can make a decent living just by accepting annulment cases and nothing else. And so can the psychologists. During the past 10 years, she has seen a rise in the number of annulment cases in Metro Manila and the provinces. What used to be the recourse only for the well-off and movie stars has now gained acceptance even among those in the lower economic bracket, some of whom actually save up for it.

In more than the hundred cases of annulment she has handled, Atty. Cristal has seldom received an unfavorable ruling.

What separates annulment from the other legal option called “legal separation” is the fact that an annulled marriage allows either partner to marry again. This may be the main reason more and more people are opting for annulment.

The D word
But, she admits, “Sa totoo lang, mas makatotohanan ang divorce at hindi magastos (kasi) hindi na kailangan ng psychologist.”

But the D word is a highly charged issue in the Philippines. Legislators who so much as whisper the word face opposition from the Catholic Church and its allied organizations, the block-voting Iglesia ni Cristo, and a host of other Christian groups who will defend at all costs the biblical warning, “Let no man put asunder.” Actually, that means threatening to withhold support from pro-D politicians.

Yet even staunchly Catholic countries like Italy and Spain have their own divorce laws. In the world, it’s said that only the Philippines and Malta are divorce-free. But then again, we’re said to be the only country in the world whose annulment law has received a truly frenetic workout. Atty. Cristal says the calendar of Family Courts are almost dominated by petitions for annulment. More people are coming out to set themselves free, no matter how convoluted the process.

But, says the good attorney, “Annulment and divorce should not be on your mind.” She advises: “Before you marry, tignan mo muna. I would suggest you live together muna. If you find you want him (or her), only then do you marry. At hindi komo nag-away kayo annulment kaagad. As much as possible, try to save the marriage. But if may abuses, especially physical, wala nang respeto at love, then why go on?” ?

By J. M. Gonzales

Annulment facts, questions and oddities

• If the marriage was null and void from the beginning, then by logic the children of the couple are illegitimate. However a “collatilla” was added so that children are still considered legitimate, even if this breaks logic.

• Even if the psychologist discovers the petitioner is the one psychologically incapacitated, he or she still has the right to apply for annulment.

• If a spouse or both spouses are considered psychologically incapacitated, then why are they allowed to remarry other people? For example, TV host Willie Revillame who is now in the middle of his second annulment case. “Di ba dapat hindi na sila payagan mag-asawa?” asks a perplexed Atty. Cristal.

• “Halimbawa, inabandon ka ng asawa mo, at gusto mo na hiwalayan, ikaw pa ngayon ang gagastos,” Or in some cases, it’s the battered wife or husband who files and spends.

• Atty. Cristal offers another scenario. If the marriage was good for the first 10, and the husband finds a mistress on the 11th year, then she laments that annulment puts even the good years of the marriage in a bad light – tainting the couple’s memory wholesale.

• Sometimes nature plays its tricks, like in the case of a domestic helper working abroad who saved up for annulment of her marriage but after the court granted her petition her ex-husband suffered a stroke and died. The woman wondered why she didn’t just wait.

• Why is it that Moslems have divorce under the Sharia law? And Christians are taught that divorce goes against the will of God?

• “Why can’t we Pinoys call a spade, a spade, black is black?” asks Atty. Cristal. Why go through all this legal and psychological acrobatics which costs a lot of money and takes about a year or more to process just to end a marriage gone bad??