Filing for annulment when spouse cannot be located

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Persida Acosta

Persida Acosta

Dear PAO,
My wife and I have been estranged for 10 years now. Recently, I found out that she was married to another guy at the time we got married. I want to have our marriage declared void but I’m not sure if it can be done considering that I have no idea where my wife is right now.
Mickey

Dear Mickey,
A petition for annulment or declaration of nullity of marriage may still be filed by a person even if he or she does not know where his or her spouse is.

In civil cases, upon filing of the complaint and payment of the legal fees, the clerk of court issues a summons to the defendant directing him to answer the complaint. Commonly, the summons is served to the defendant personally, or by leaving a copy of the summons at the defendant’s residence with some person of suitable age and discretion residing therein or at his office or regular place of business with some competent person in charge thereof (Rule 14, Sections 6 & 7, Rules of Court). Obviously, for both modes of serving summons the whereabouts or, more specifically, the address of the defendant must be known.

However, these are not the only modes of serving summons. Depending on the nature of the case and the residency of the defendant, other modes may be resorted to. In the case of petition for nullity of marriage, the mode of service of summons that may be resorted may differ depending on the residency of the defendant.


If the defendant is a resident of the Philippines, service of summons may be made through publication in a newspaper of general circulation in accordance with Rule 14, Section 14 of the Rules of Court. On the other hand, if the defendant is a non-resident who is not in the Philippines, extraterritorial service of summons may be made following Section 15 of the same Rule.

It states: “When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff… service may, by leave of court, be effected out of the Philippines by personal service as under Section 6; or by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient.”

From the foregoing, it is clear that you may still file a petition to declare your marriage void even if you do not know the whereabouts of your spouse, and if you can prove that your wife indeed had a prior existing marriage at the time you were married, then your marriage can be declared void.

We hope you find the foregoing sufficient to address your query. Please bear in mind that this opinion is based solely on the facts you narrated and our appreciation of the same. Our opinion may vary should actual facts and circumstances change.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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