I got married in 2006 but only lived with my husband for one year and went abroad to work. To be honest, I also chose to live abroad in order to escape my husband’s abusive acts. He was physically, psychologically and emotionally violent. Is it too late for me to file for the annulment of our marriage basing on the grounds of abuse? Can I file annulment even if I am not in the Philippines? What can I do in order to gain custody of our child who is with him? He has been asking me to give him P20,000 for the financial support of our son. Is this fair? I enrolled our son in a private school but after three days in school, he was transferred to a public school.
Dear Ms. June,
We regret to inform you that you may not be able to file a petition for annulment of your marriage on the ground of spousal abuse. The Family Code is clear and specific as to the grounds for annulment of marriage, to wit: (1) the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; (5) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable (Article 45, Family Code).
It is also worth noting that even if spousal abuse is a ground for legal separation pursuant to Article 55 (1) of the Family Code, a petition relative thereto will not prosper in your case because almost seven (7) years have already passed. As provided for under Article 57 of the said Code, an action for legal separation must be filed within five (5) years from the time of the occurrence of the cause. Consequently, your right to file such action has already prescribed.
Insofar as your desire to gain the custody of your child, it is essential for you to file a petition for custody before the Family Court of the province or city where you reside upon your return here in the Philippines or where your child may be found (Section 3, A.M. No. 03-04-04-SC). It is only when the court determines that it is for the best interest of the child can the latter’s custody be granted in your favor.
Insofar as the amount of support your husband is asking from you, we cannot ascertain whether the same is fair or not. You have to consider the totality of your child’s needs. The support which a child is entitled to receive from his or her parents does not only involve his or her education. It also comprises everything that is indispensable for his or her sustenance, dwelling, clothing, medical attendance and transportation, in keeping with the financial capacity of the family (Article 194, Family Code).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.