Author Archives: Carlos

Grounds for Annulment of Marriage in the Philippines

Art. 45 of The Family Code of the Philippines states 6 grounds by which the court can annul a marriage.

The grounds for annulment of marriage are:

1. Absence of Parental Consent. A marriage was solemnized and one or the other party was eighteen (18) years of age or over but below twenty-one (21) and consent was not given by the parents, guardian or person having substitute parental authority. The Petition of Annulment must be filed within five (5) years of having attained the age twenty-one. However, if the parties freely cohabited with the other as husband and wife after having reached the age of twenty-one (21) a Petition of Annulment can no longer be filed.

2. Mental Illness. One or the either party was of unsound mind at the moment of the marriage. But if the parties freely cohabited with each other after he or she came to reason the law prohibits the filing of a Petition.

3. Fraud. That the consent of either party was obtained by fraud, unless such party once having knowledge of the fraud freely cohabited with the other as husband and wife. The petition must be filed within five (5) of finding out the facts of the fraud.

4. That the consent of either party was obtained by force, intimidation or undue influence. Except when the same has ceased and the party filing the petition freely cohabited with the other as husband and wife. The injured party must file within five (5) years from the point in time the force, intimidation or undue influence disappeared or came to an end.

5. One or the other party was physically incapable of consummating the marriage, and such incapacity continues and appears to be incurable. The filing of the Petition of Annulment must be filed within five (5) years after the marriage.

6. Either party was at the time of marriage afflicted with a sexually-transmitted-disease (STD) found to be serious and seems to be incurable. This may also constitute fraud. The filing of the Petition of Annulment must be filed within five (5) years after the marriage.

SEPARATION: being separated from your spouse with or without communication is not grounds for annulment. It does not matter how many years you are separated. There is no law that annuls or voids a marriage automatically. Only a judge in a court of law can annul, void or nullify a marriage.

INFIDELITY: is not grounds for annulment.

We file petitions for annulments only in Metro Manila.
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Presumption of Death and Remarriage

Many people ask us: I have not heard from my spouse in 7 years, can I remarry?

The answer is no. No matter how long spouses have been separated 2, 4, 7, 15 years or more, one can not remarry without the courts having issued a:

  • Decree of Annulment or Nullity
  • Judicial Decree of Absolute Divorce
  • Death Certificate of the Deceased Spouse

Article 41 of The Family Code of the Philippines states:

A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four (4) consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance, where there is danger of death under the circumstances set forth in the provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

Danger of Death pertains to:

  • A person who was on board a ship or airplane which has gone missing and who has not been heard of for 2 years
  • A person in one or the other branch of the military who has taken part in war or other military operations, and has been missing for 2 years
  • A person who has been abducted and there has been no news about them for 2 years
  • Or other situations where there is a high chance that death may have occurred within a 2 year period

Presumption of Death should not be used as a work around to be to remarry, as the law provides that if an affidavit of reappearance is recorded, the presumption of death is automatically terminated. If the presumption of death is terminated; any remarriage is immediately voided.

Marriage Annulment & Divorce in the Philippines

1 – My wife and I are Filipino citizens living overseas can we obtain a divorce in our country of residence?

Divorce is not acknowledged under the laws of the Philippines. Filipino citizens, no matter what their country of residence must follow the procedure indicated in the Family Code of the Philippines to have their marriage nullified or voided by filing a Petition of Annulment of Marriage before the pertinent Office of the Executive Clerk of Court of the Regional Court.

2- I am Filipina married to an American citizen. My husband obtained a divorce in the USA, am I now allowed to remarry?

No, divorce is not recognized in the Philippines. But this is a special circumstance which is covered by the Family Code of the Philippines:

ART. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and 38.

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.

Based on this the Filipino Citizen may now apply to have the foreign divorce validated by the courts of the Philippines and may marry again. To do this, the petitioner must show that the divorce was obtained in conformity of the foreign laws of the country of the foreign citizen.

Philippine Representative Office

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The procedure for obtaining a license from the SEC to operate a Foreign Company Representative Office in the Philippines is similar to that of the Foreign Company Branch Office.

The required minimal inward remittance of funds for a Foreign Representative Office as working capital is US$ 30,000.00 as opposed to the minimum paid up capital of US$200,000.00 of a Foreign Branch Office as mandated by the SEC regulations. Every year the parent company must remit at least US$ 30,000.00 to cover operating expenses.

A Representative Office of a foreign corporation is not allowed to derive income from its operations in the Philippines. All of its expenses must be covered by remittances from the parent company.  Usual activities allowed are dissemination of information, promotion of company products and quality control of products for export. It is not allowed to offer services to 3rd parties.

A Representative Office is not subject to income taxes as none of its income is derived from the Philippines and is not qualified to register with the BOI or PEZA authorities.

BC Philippines Lawyers will assist you with the procedure and registration of your business with the pertinent government agencies for a quick opening of a representative office in Philippines.

Philippines Foreign Corporation Branch Office

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A branch office of a foreign corporation may start transacting business in the Philippines once it has been licensed by the SEC.

The corporation code of the Philippines in Title XV gives the definition and rights of a foreign corporation in the Philippines to conduct business.

Required documents needed to apply for a license to operate a foreign branch office:

1 – Name Verification Slip (A name search will be done at the SEC to determine if the corporate name has any similarity with an existing corporation already registered with the SEC).

2 – Certified copy of Board resolution authorizing the establishment of an office in the Philippines: designating the resident agent to whom summons and other legal processes may be served in behalf of the foreign corporation and stipulating that in the absence of such agent or upon cessation of its business in the Philippines, any summon of legal processes may be served to SEC as if the same is made upon the corporation at its home office.

3 – Financial statements for the immediately proceeding year at the time of filing the application, certified by an independent Certified Public Accountant of the home country.

4 – Certified copies of the Articles of Incorporation/By-laws/Partnership with an English translation thereof if in a foreign language.

5 – Proof of Inward Remittance such as bank certificate of inward remittance or credit advices.

6 – Resident Agent’s acceptance of appointment (not necessary if agent is the signatory in the application form.

7 – Copy of passports, names and addresses of the present Corporate Directors and Officers with English translation.

The foreign corporation must make an inward remittance of USD 200,000.00 as capital investment. Branches which use advanced technology or employ at least 50 direct employees may be allowed a reduced paid-in capital of USD 100,000.00. Companies which export more than 60% of their products or services may apply for an exemption.

The capital remittance should be registered with the Central Bank of the Philippines, Bangko Sentral ng Pilipinas.

A foreign corporation operating in the Philippines without having been licensed by the SEC does not have the right to file any action, suit or proceedings in Philippine courts of law.

Philippine tax incentives may be available by registering with the PEZA or BOI.

Philippines Business Registration

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Businesses may be registered in the Philippines as:

  • Foreign Branch
  • Foreign Representative Office
  • 100% Foreign Owned Domestic corporation
  • 60/40 Owned Domestic Corporation
  • Partnership
  • Sole Proprietorship

Foreign Branch Office, Foreign Representative Office, Partnerships and Domestic Corporations need to be registered with the Securities and Exchange Commission (SEC).

Sole Proprietorships are registered with the Department of Trade and Industry (DTI).

Philippines Incorporation

To incorporate or form a corporation in the Philippines it is a requirement to have a minimum of 5 incorporators (a corporation may not be an incorporator of another corporation). Each incorporator must hold at least one share in the corporation. Corporations must have a minimum of 5 directors and can have a maximum of 15. The majority of the Directors must be residents of the Philippines.

The Incorporation Procedure

  • Reservation of Company Name
  • Submission of Articles of Incorporation and Bylaws
  • Bank Certificate of Paid in Capital

The Foreign Investment Act as well as the Foreign Investment Negative List A and List B contain the restrictions on foreign ownership of corporations in the Philippines.

Minimum paid-up capital requirements vary according to the kind business the company engages in. For a Domestic Market Enterprise (DME) to be 100% foreign owned the minimum paid-up capital requirement is USD 200,000.00. DMEs which use advanced technology or employ at least 50 direct employees may be allowed a reduced paid-in capital of USD 100,000.00. Companies which export more than 60% of their products or services may apply for an exemption.

Corporations who qualify may avail of tax incentives by registering with the BOI or PEZA.

Branch Office Registration

Foreign Ownership of Land in the Philippines

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Real Estate Ownership in the Philippines

Philippines real estate law does not allow outright ownership of real property by foreign nationals. Filipinos and former Filipino citizens and Philippine majority owned corporations (Take note of the Anti Dummy Law) are permitted to own land, buildings, condominiums and townhouses.

Foreign nationals may buy condominiums units in Philippine condos (shares in condominium corporations) as long as not more than 40% of the units in a project are acquired by foreigners (Republic Act No. 4726, otherwise known as the Condominium Act).

Exceptions to the 40% Foreign Ownership of Philippine Real Property

  • Land Aquired before the 1935 constitution
  • Acquisition through hereditary succession if the foreigner is a legal or natural heir
  • Foreigners who acquired Philippine property when they used to be Filipino citizens, will maintain ownership of those properties even after their change of citizenship.
  • Former natural-born Filipino citizen subject to the limitations prescribed by Law (Batas Pambansa 185 and R.A. 8179)

    • 1 – For residential purpose – 1,000 square meters of urban land or one (1) hectare of rural land (BP 185)
    2 – Cannot own both urban and rural land. Choose one type only.
    3 – Previous ownership (when still a Filipino citizen) of residential urban or rural land will lower the 1,000 sq meter and 1 hectare limits above.
    4 – Can own a maximum of two (2) lots only.
    5 – Those lots must be in different cities or municipalities in the Philippines.
    6 – A transferee of residential land acquired under Batas Pambansa Blg. 185 may still avail of the privileges granted under R.A. 7042 as amended by R.A. 8179.
    For business or other commercial purpose – 5,000 square meters of urban land or three hectares of rural land. Section 5 of Rule XII states: “the land should be primarily, directly and actually used in the performance or conduct of the owner's business or commercial activities in the broad areas of agriculture, industry and services including the lease of land but excluding the buying or selling thereof.”
    – Ownership (when still a Filipino citizen) of urban or rural land used for business purposes will lower the 5,000 square meter and 3 hectare limits.
    – Ownership of only one type of land is allowed either urban or rural not both.
    – Ownership is restricted to 2 lots. Each lot must be in a different municipality.


Ownership Of Houses or Buildings by Foreigners in the Philippines

Foreigners my own buildings or houses in the Philippines legally; as long as they do not own the land on which it is built.

Foreign individuals, corporations or associations may lease land for a period of 25 years renewable for another 25 years. (P. D. No 471, Fixing a Maximum Period for the Duration of Leases or Private Lands to Aliens)

Companies or individuals investing in the Philippines may receive government permission to lease land for up to 50 years renewable for another 25 years. (Republic Act No. 7652, otherwise know as the Investors’ Lease Act)

Philippine Economic Zone Authority Tax Incentives

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Philippines PEZA – Philippine Economic Zone Authority

Companies that register and locate within an area that is under the Philippine Economic Zone Authority (PEZA) are entitled to various tax incentives and other advantages.

Usually enterprises located in a PEZA approved ecozone are required to export 100% of their production.

Incentives for Ecozone and IT Locators

100% foreign ownership allowed except in activities which are limited by the Foreign Investment Negative List

Income Tax Holiday (ITH) or exemption from corporate income tax for 4 years, extendable to a maximum of 8 years; after which a special 5% tax on gross income (sales less direct costs) shall be paid in lieu of all national and local taxes.  The income tax holiday is not available for locators in the Subic Bay Metropolitan Authority (SBMA) and Clark Freeport Zone, they are entitled to the special 5% tax on gross income as described above.

Exemption from duties and taxes on imported capital equipment, spare parts, supplies, raw materials. Tax credits will issued on breeding stocks or genetic materials when they are sourced locally.

PEZA may grant the right to the locator on a case to case basis the sale of up to 30% of production to the domestic market.

Exemption from wharfage dues and export taxes, imposts and fees.

Permanent resident status for foreign investors and immediate family members.

Employment of foreign nationals.

Simplified import and export procedures.

Other incentives under Executive Order 226 (Omnibus Investment Code of 1987), as may be determined by the Philippine Economic Zone Authority Board.

For companies that will not avail of PEZA incentives see the rules on foreign ownership of Philippine companies

Tax incentives by the Philippines Board of Investments

Foreign Ownership of Corporations in the Philippines

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The Foreign Investment Act (R.A. 7042, 1991, amended by R.A. 8179, 1996) liberalized the entry of foreign investment into the Philippines. Under the Act, foreign investors are generally treated like their domestic counterparts and must register with the Securities and Exchange Commission (SEC) (in the case of a corporation or partnership) or with the Department of Trade and Industry’s Bureau of Trade Regulation and Consumer Protection (in the case of a sole proprietorship).

Businesses with Foreign Investment Restrictions

Within the 1991 Foreign Investment Act (FIA) there are two negative lists also know as the “Foreign Investment Negative List” which defines the foreign investments which are limited or restricted by the constitution and specific laws. Negative List A & Negative List B

Domestic Corporations

The general rule of ownership for a Philippine Domestic Market Enterprise is 60% Filipino ownership and 40% foreign ownership of a business.**

More than 40% and up to 100% foreign ownership of a Domestic Market Enterprise is allowed as long as the paid-in capital is a minimum of USD 200,000.00. Employing a minimum of 50 direct employees or using advanced technology may allow a paid-in capital of less than USD 100,000.00 (R.A. 7042 as amended by R.A. 8179).**

Retail Trade Enterprises

100% foreign ownership is allowed for Philippine retail trade enterprises: (a) with paid-up capital of USD 2,500,000.00 or more provided that investments for establishing a store is not less than USD 830,000.00; or (b) specializing in high end or luxury products, provided that the paid-up capital per store is not less than USD 250,000.00 (Sec. 5 of R.A. 9762). No foreign equity is allowed in Retail Trade Enterprises with less than the above mentioned capital.

Export Businesses

An export enterprise is defined as a business who exports at least 60% of its output.
Export Business Enterprises may be 100% fully foreign owned and may file with the SEC for an exemption of the paid-up capital requirement of USD 200,000.00.

KPO, BPO, Back Office and call centers are considered Export Enterprises.

** Unless otherwise indicated in the Philippine Foreign Investment Negative List

Annulment in the Philippines

Q: What documents do I need to give BC Philippines Lawyers to start the case for Annulment of Marriage?

A: You will have to obtain the following documents:

a) An authenticated copy of your marriage certificate; and
B) An authenticated copy of the birth certificate/s of your children (if any) from the National Statistics Office (NSO)

Q: Both my husband and I are Filipino citizens living overseas. Can we file for an annulment in the Philippines?

A: Yes, the rules of court now allow for non-resident Filipinos to file petitions of annulment of marriage in the Philippines.

Q: What is the best city in the Philippines for me to file my petition of annulment?

A: You, as the petitioner have the choice to file in the Family Court of the province or city where you or your husband/wife has been residing for at least 6 months prior to the of filing of the petition, or in the case of a non-resident respondent, where he/she may be found in the Philippines.

Q: Do we need to go back to the Philippines to proceed with an annulment of marriage case?

A: Yes, you will have to come to the Philippines. You will have to appear at least twice in court once for the Pre-trial and once to Testify. If you do not appear in court your petition will be dismissed. You can be excused from appearing at the pre-trial for valid reasons such as illness.

Some Judges allow the non- appearance of the Petitioner in cases of Annulment of Marriage where the ground cited is Bigamous Marriage under Article 35 of the Family Code of the Philippines.

Q: How long does it take to get an annulment?

A: If the proceedings go smoothly, at least 6 months but there is no guarantee to that. There are factors that need to be taken into consideration that could delay the procedure such as but not limited to court-sanctioned postponement of hearings, and justifiable absences of State Prosecutor, if any.

Marriage Annulment & Divorce in the Philippines
Presumption of Death and Remarriage

We file petitions for annulments only in Metro Manila.
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