Dear PAO,
I have been married to my wife for ten years when I discovered that she was cheating on me. This caused our separation in 2005 when she abandoned me. I have been living alone for several years now because of the separation and that we didn’t have any child. I am planning to file an annulment case against my wife as she is already cohabiting with another man. Is adultery a ground? Can I remarry as soon as the court declares our marriage null and void?         

Jerome

Dear Jerome,
Adultery is not a ground for annulment or declaration of nullity of marriage under the law. However, the infidelity of your wife and the fact that she abandoned you are indications that she may be suffering from psychological incapacity.

Under the Family Code of the Philippines, a marriage is null and void if either or both parties are suffering from psychological incapacity. This is particularly provided by Article 36 of the said code which provides:

“Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.”

The marital obligations as mentioned in the aforementioned provision refer to the husband and wife’s obligation to live together, observe mutual love, respect and fidelity, and render mutual help and support (Article 68, Family Code of the Philippines).

Once psychological incapacity is proved in court, the court shall declare your marriage to your wife null and void. However, you are not yet qualified to remarry at that instance. This is because there are certain things you have to do as required by the law. This is particularly stated in Article 52 of the Family Code of the Philippines, to wit:

“Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.”

Failure to register the decision of the court declaring your marriage null and void with the local civil registrar shall likewise render your subsequent marriage to another null and void. This is pursuant to Article 53 of the same code which provides:

“Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to guide you with our opinion on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to This email address is being protected from spambots. You need JavaScript enabled to view it.