Annulment, Nullity and Legal Separation Compared
Legal and notarial · civil registry
Quick answer
Annulment, declaration of nullity and legal separation are three different remedies. A void marriage was never valid, and Article 36 psychological incapacity falls here. A voidable marriage is valid until annulled, and its grounds prescribe under Article 47. Legal separation ends cohabitation but not the marriage.
Every figure on this page is from LawPhil Project's own published documents.
Last verified 2 sources, listed below
Executive Order No. 209, the Family Code of the Philippines1 · Republic Act No. 115762. PHGuides is independent and not affiliated with any agency.
Three remedies get talked about as if they were one. They are not, and choosing the wrong one loses the case. Everything below is from the Family Code, Executive Order No. 209, promulgated 6 July 1987.
The three remedies
| Declaration of nullity | Annulment | Legal separation | |
|---|---|---|---|
| The marriage was | Void from the beginning | Valid until annulled | Valid, and stays valid |
| Governing articles | 35, 36, 37, 38 | 45, 47 | 55 |
| Do grounds prescribe? | No | Yes, under Article 47 | Yes |
| Can you remarry after? | Yes | Yes | No |
That last row is the one that decides which case to file. Legal separation ends the obligation to live together and divides property, but the marriage bond survives, so neither spouse may remarry.
Void marriages
Article 35 lists the marriages void from the beginning.
- Those contracted by any party below 18 years of age, even with the consent of parents or guardians.
- Those solemnized by a person not legally authorized to perform marriages, unless either or both parties believed in good faith that the officer had authority.
- Those solemnized without a licence, except the cases Chapter 2 exempts.
- Bigamous or polygamous marriages not falling under the stated exception.
Article 37 adds that marriages between ascendants and descendants of any degree, and between brothers and sisters, are incestuous and void from the beginning, whether the relationship is legitimate or illegitimate.
Article 36 and psychological incapacity
This is the provision most people mean when they say “annulment”, and it is not an annulment provision at all.
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.
Two things follow from the wording. The incapacity must have existed at the time of the celebration, not developed afterwards. And because the marriage is void rather than voidable, the remedy is a petition for declaration of absolute nullity, and there is no prescriptive period to run out.
Annulment grounds and their deadlines
Article 45 lists causes that must have existed at the time of the marriage. Article 47 then attaches a filing period to each, which is what makes annulment different from nullity in practice.
| Ground, Article 45 | Who may file, Article 47 | Within |
|---|---|---|
| Party aged 18 years or over but below 21 years, married without parental consent | The party whose parent or guardian did not consent | 5 years after turning 21 years |
| The same ground | The parent, guardian or person with legal charge | Any time before the party reaches 21 years |
| Either party of unsound mind | The same spouse, who had no knowledge of the other’s insanity | The period Article 47 sets for that cause |
The first ground carries its own cure: if the party freely cohabited with the other after turning 21 years and they lived together as husband and wife, the ground is gone. Article 45 continues with further causes and Article 47 with their matching periods, in the same paired structure.
Prescription: the sharpest difference
Article 39 states the rule that makes nullity and annulment behave differently over time.
The action or defense for the declaration of absolute nullity shall not prescribe. However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in 10 years after this Code shall take effect.
So a void marriage can be attacked at any distance in time, with one closed window for pre-Code Article 36 cases. Annulment grounds under Article 45 all run out under Article 47.
Article 40 adds a trap for anyone who assumes a void marriage needs no court: absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring it void. Being right about the nullity is not enough; you need the judgment before you remarry.
The missing spouse
Article 41 handles the case where a spouse has vanished. A marriage contracted during the subsistence of a previous one is null and void, unless:
| Circumstance | Required absence |
|---|---|
| Ordinary absence, with a well-founded belief the absent spouse is dead | 4 consecutive years |
| Disappearance with danger of death, under Article 391 of the Civil Code | 2 years |
If the absent spouse then reappears, Article 42 terminates the subsequent marriage automatically on the recording of an affidavit of reappearance in the civil registry of the parties’ residence, with due notice to them, unless a judgment has already annulled or voided the previous marriage.
Article 43 then protects the children: those of the subsequent marriage conceived before its termination are legitimate. The community property or conjugal partnership is dissolved and liquidated, and a spouse who contracted the marriage in bad faith forfeits their share of the net profits.
What the judgment must do before you can remarry
Articles 50 to 53 impose a sequence that catches people out, because winning the case is not the last step.
- The final judgment must provide for the liquidation, partition and distribution of the spouses’ properties, the custody and support of the common children, and delivery of their presumptive legitimes.
- Article 51 values those presumptive legitimes as of the date of the final judgment of the trial court, delivered in cash, property or sound securities.
- Article 52 requires the judgment, the partition and the delivery of the legitimes to be recorded in the civil registry and registries of property. Without recording, they do not affect third persons.
- Article 53 then allows either former spouse to marry again after compliance with Article 52, and makes the subsequent marriage null and void otherwise.
Children after separation
Article 213 governs custody where the parents separate.
The Court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise.
The children
Article 54 settles the question that worries people most.
Children conceived or born before the judgment of annulment or absolute nullity under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.
Legal separation
Article 55 opens the list of grounds with repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner, and continues through the other grounds Title II sets out.
Divorce, and the one exception
The Family Code provides no divorce for two Filipino citizens. Article 26 carries the single exception, added by Executive Order 227:
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 have capacity to remarry under Philippine law.
Every period in the Code, in one table
The Family Code writes its numbers as words. Collected here as figures, because in annulment the period is usually what decides whether a case can be filed at all.
| Period | What it governs | Article |
|---|---|---|
| No prescription | Action or defence for declaration of absolute nullity | 39 |
| 10 years | Prescription for Article 36 cases on marriages celebrated before the Code took effect | 39 |
| 5 years | Annulment for lack of parental consent, counted after the party turns 21 years | 47 |
| 21 years | Age up to which the parent or guardian may file instead | 47 |
| 18 years to 21 years | Age band creating the lack-of-consent ground | 45 |
| 4 years | Absence of a prior spouse, consecutive, before a subsequent marriage is valid | 41 |
| 2 years | Absence where there was danger of death under Civil Code Article 391 | 41 |
| 7 years | Age above which the child’s own custody choice is weighed | 213 |
| 7 years | Age below which a child is not separated from the mother, absent compelling reasons | 213 |
The contrast in the first two rows is the practical heart of it. A petition for nullity has no deadline, so delay costs nothing legally. An annulment ground has one, and once it passes the marriage stays valid however strong the facts.
Which court hears it
Family Code cases are not small claims and cannot be filed as such. The civil jurisdiction thresholds that separate the first level courts from the Regional Trial Courts were reset by Republic Act No. 11576, approved 30 July 2021.
| Threshold | Effect |
|---|---|
| Personal property, estate or demand over ₱2,000,000.00 | Regional Trial Court |
| The same at ₱2,000,000.00 or below | Metropolitan, Municipal or Municipal Circuit Trial Court |
| Real property with assessed value over ₱400,000.00 | Regional Trial Court |
Those figures matter here only for the property consequences Articles 50 to 52 attach to a decree, since the judgment must liquidate and partition the spouses’ property. The petition itself goes to the Family Court.
When the Code itself took effect
Article 39’s ten-year window runs from effectivity, and the Code does not print a calendar date for that. Article 265 says only that it takes effect 1 year after the completion of its publication in a newspaper of general circulation, as certified by the Executive Secretary. Article 255 then gives the Code retroactive effect, but only insofar as it does not prejudice or impair vested or acquired rights under the Civil Code or other laws.
One more period sits in the legal separation chapter and is easy to miss. Article 64 lets the innocent spouse revoke donations made to the offending spouse, and the action to revoke must be brought within 5 years from the time the decree of legal separation becomes final.
What this page does not cover
This page states no cost. The Family Code sets no fee, court filing fees are governed by the Rules of Court rather than the Code, and lawyers’ fees and psychological evaluations are private charges, so quoting a national figure would be inventing one. It also does not cover the procedural rules for these petitions, which live in separate Supreme Court issuances, nor church annulment, which is a different process with no civil effect on its own.
We publish figures only where an agency or a statute publishes them, and here neither does.
Related
The barangay protection order guide covers the same-day order available under RA 9262, whose grounds overlap with legal separation’s first listed ground. The civil wedding requirements guide covers the licence and the formal requisites whose absence can make a marriage void, the PSA marriage certificate guide covers the civil registry record, and the small claims guide covers the one civil proceeding the Supreme Court designed to be run without a lawyer.
Frequently asked questions
- What is the difference between annulment and nullity?
- A void marriage under Article 35 or 36 was never valid to begin with, and a declaration of nullity says so. A voidable marriage under Article 45 was valid when celebrated and stays valid until a court annuls it. The grounds and the prescriptive periods are different, and only annulment grounds prescribe.
- How much does annulment cost in the Philippines?
- The Family Code fixes no figure, and this page states none. Cost is driven by court filing fees, which scale with the relief sought, plus counsel's fees and any psychological evaluation, none of which the Code sets. Anyone quoting a single national price is quoting a practice, not a law.
- Is psychological incapacity an annulment ground?
- No, and this is the most common mix-up. Article 36 makes a marriage void, so the remedy is a declaration of absolute nullity, not annulment. It applies where a party was psychologically incapacitated to comply with the essential marital obligations at the time of the celebration, even if that incapacity only becomes manifest later.
- Do annulment grounds expire?
- Yes. Article 47 sets who may file and within what period. For lack of parental consent, the party whose parent did not consent has 5 years after turning 21 years, while the parent or guardian may file at any time before the party reaches 21 years. Other grounds have their own periods.
- Are the children illegitimate afterwards?
- Not in the cases Article 54 covers. Children conceived or born before a judgment of annulment or of absolute nullity under Article 36 becomes final and executory are considered legitimate, as are children of a subsequent marriage under Article 53.
- What does legal separation do?
- It separates the spouses without dissolving the marriage, so neither may remarry. Article 55 lists the grounds, beginning with repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner.
- Is there divorce in the Philippines?
- Not for two Filipino citizens under the Family Code. Article 26 has one narrow rule: where a Filipino marries a foreigner and the alien spouse validly obtains a divorce abroad capacitating them to remarry, the Filipino spouse also gains capacity to remarry under Philippine law.