I am an overseas Filipino worker (OFW). I was married in 200, and my wife and I lived together until 2005. In 2006, I went abroad to work as an OFW but, when I came back, I discovered that my wife cheated on me with another man and had a child with him. I am now separated from her and I want to have my marriage annulled. Thank you. God bless!
A marriage may only be nullified or annulled by filing a Petition for Declaration of Nullity of Marriage or Petition for Annulment of Marriage, as the case may be, in accordance with the specific grounds enumerated under the Family Code.
The grounds for filing a Petition for Declaration of Absolute Nullity of Marriage, which shall sever the marital vinculum, are provided under Articles 35, 36, 37 and 38 of the Family Code, viz:
“Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered by the preceding chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
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.
Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.”
On the other hand, a Petition for Annulment of Marriage must be based on the grounds enumerated under Articles 45 and 46 of the same code, to wit:
“Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That 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) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4) That 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) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.”
It is very clear from the aforementioned provisions of laws, that sexual infidelity of a spouse is not a legal ground for filing either a Petition for Declaration of Nullity of Marriage or a Petition for Annulment. Otherwise stated, the sexual infidelity of your spouse will not render your marriage void or voidable and is therefore insufficient to cause the severance of the marital vinculum.
Thus, the alleged sexual infidelity of your spouse is not enough to cause the nullification or annulment of your marriage with her. If, however, there were certain details that you failed to mention, which may give rise to grounds for the filing of either a Petition of Declaration of Nullity of Marriage or Petition for Annulment of Marriage, and you still wish to file the same, you will need the assistance of a lawyer.
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 enlighten you 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 firstname.lastname@example.org.