Grounds to nullify marriage

Persida Acosta

Persida Acosta

Dear PAO,
I got married to my American husband in the US about three years ago. My marriage did not work out so I decided to go back to the Philippines. I have not seen my husband since and I have not heard of him. I don’t have enough funds to go back to the US to secure a divorce. Right now, I already have a boyfriend also working in the US.

My queries are as follows:

1)    Will I be forever married to my husband? Can I not marry my boyfriend in the US?

2)    Can I file an annulment of marriage here in the Philippines even if I did not register my marriage here?
Curious Lady

Dear Curious Lady,
Before we go further with your query, there is a need for us to discuss the pertinent law applicable to your question— Article 26 of the Family Code states that:

“Article 26: All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35, 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law.”

The marriages that are prohibited under Articles 35, 36, 37 and 38 of the said Code are, those contracted by any party below 18 years of age, bigamous or polygamous marriages, marriage contracted through mistake of one contracting party as to the identity of the other, incestuous marriage and marriage contracted by any party who at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage.

From the foregoing provisions, it is clear that if a marriage is validly celebrated abroad, it is also valid here in the Philippines (lex loci celebrationis). In your case, provided that your marriage with your American husband is not among those mentioned in Articles 35, 36, 37 and 38 of the Family Code, the doctrine of lex loci celebrationis comes into play. Applying the said rule, your marriage with your husband is valid and it is binding upon you even if you did not register the same here in the Philippines. Your marriage has been validly celebrated in the United States of America (USA) and thus it is recognized by Philippine laws under the doctrine of lex loci celebrationis. Any consequence of your marriage validly celebrated abroad will bind you even in the absence of a registration with the Philippine National Statistics Office (NSO). Since your marriage was done in the USA, the registration will be there unless it had been solemnized before the Philippine Consulate.

Anent your query whether you will forever be married to your husband, the answer would depend on the attending circumstances. Your intention of getting married to your present boyfriend will have to wait because you still have a valid and subsisting marriage. Any marriage subsequently celebrated without the first marriage being severed will be null and void. To avoid further problems you must first settle the issues of your first marriage before entering into another one.

To start with, if there is any chance, find a way so that you can communicate with your husband and inquire from him of the status of your marriage. His answer to your query may be the solution to your present problem. If your husband has already validly obtained a divorce capacitating him to remarry, it follows that you already have the capacity to remarry under Philippine law. You need not perform any act to have the said divorce recognized here because it is by law already recognized under paragraph 2 of Article 26 of the Family Code. You just have to get a copy of the divorce decree obtained by your foreigner husband so that you can validly remarry.

Should there be no chance for you to communicate with your husband then you may file a petition for the declaration of nullity of marriage on grounds of psychological incapacity under Article 36 of the said Code.

The law gives the husband and wife the personal obligations to live together, observe mutual love, respect and fidelity, and render mutual help and support. The duty to live together can only be excused under the law if either of the spouses will go to another place for some professional calling or occupation.

Please take note, however, that you must be able to prove through convincing evidence before the court of the existence of psychological incapacity for you to be able to get what you prayed for from the court.

We hope that we were able to address your query. Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are included or elaborated.

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


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