February 10, 2011
Legal separation for mixed marriage
Dear HerWord,
I would like to ask your advice regarding my current situation. My husband and I are not formally separated. However, we have not been in touch with each other since I am now in another country for a few years. Basically we are both living separate lives. I am now a citizen in this country while he is a Filipino citizen. I am not aware of the grounds for annulment, except for one that I keep hearing about. I was 20 when I married him. My parents did not know that we were getting married and it was only a relative who signed the consent forms. She sort of stood as my "legal guardian" although there are no "legal" papers to support that. Basically, she just assumed the role of being "a second mother" while I was in the Philippines. To add to that, they put down that I was a Filipino citizen just because I had a birth certificate from there. However, I am a U.S. citizen.
There have been plenty of problems all throughout our marriage. During the time that we were in the same roof, there has been verbal, emotional, and physical abuse. I only stayed because he had threatened that I would not get my daughter if I left. So I stayed until I had the chance to go back home.
My question is I know I can file for divorce here. But would it be better if I filed for annulment instead? Which would be quicker? Which one would be less expensive? Which would cause the least amount of trouble?
—Name Withheld
Atty. Allen replies:
The legal age for marrying in the Philippines is 18, which means you were legally capacitated when you married your husband at 20. In addition, the law also requires that the contracting parties secure parental consent if they are between the ages of 18 and 21. The absence of parental consent when you got married at 20 years old indeed has an effect on the status of your marriage. However, the absence of parental consent does not make the marriage void but only makes it voidable.
What is the difference between the two? A void marriage has absolutely no legal effect. A voidable marriage, on the other hand, is valid until the court declares it voided. The problem is, if you want to use the lack of parental consent as a ground for having your marriage declared as void, you have to file the action within five years from attaining the age of 21. Any of your parents may also file the action, provided they do so before you attain the age of 21.
There is, however, a more interesting twist that I think can work better in your favor. This is the fact of your U.S. citizenship. Article 15 of the New Civil Code provides that Philippine laws relating to family rights and duties, and to the status, condition and legal capacity of persons are binding on Filipinos wherever they may be situated. This provision specifically removes you, as a U.S. citizen, from the ambit of the law, including the Family Code which does not provide for divorce. This means that from the Philippines' perspective, it is U.S. law, which allows divorce, that governs you.
If you have no plans of coming back to the Philippines or getting married again here, you may just want to consider getting a divorce there. I have been told that a decree of divorce is easier to secure in the U.S. than a decree of annulment in the Philippines. Aside from the fact that the proceedings are faster and more streamlined, the grounds are also less strict. (For instance, you cannot use "irreconcilable differences" as a ground for annulment here.) The decree of divorce, once you secure the same, will be binding on you, and may also be pleaded in Philippine courts because you are a U.S. citizen.
There is also the question of whether the divorce decree from the U.S. will be binding on your husband. Let us suppose that you were able to secure the divorce decree. If your husband should decide that he does not want to let you go, he can assail the validity of the divorce decree by claiming that you are not a U.S. citizen, so you should be ready to prove that you are.
Otherwise, after you secure the divorce decree, you or your husband can also have the marriage subsequently annulled in the Philippines by presenting the U.S. divorce decree in case either of you wants the Philippines to formally recognize the same. This would be a lot easier because you will only have to prove two things: first, that you were a U.S. citizen when the decree of divorce was granted; and, second, that the divorce decree was validly granted. You won't have to contend with whether or not there was ground for annulment or for having the marriage declared void.
Again, if you intend to settle down in the U.S., I don't really see the need to proactively initiate any of the proceedings here in the Philippines. The way I see it, the only reasons why you would want a Philippine declaration is if you want your husband to be free again to re-marry, and if you need your property relations to be dissolved. Otherwise, it is my opinion that getting a divorce decree in the U.S. would be sufficient for your purpose.
If you have questions for Atty. Allen, email feedback@herword.com.
Atty. Allen A. Liberato is head of Corporate Legal Affairs at strategic marketing communications firm TeamAsia. She earned her Bachelor's Degree from the University of the Philippines Diliman and her law education from the University of Perpetual Help under Dean Justice Isagani A. Cruz.
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