Family Code
VOID MARRIAGES Type of Void Marriages
(1) Absence of any formal/essential requisites (2) Psychologically Incapacitated spouse (3) Incestuous Marriages
(4) Marriages contrary to public policy (5) Void subsequent marriages Absence of Requisites
Art. 4(1): The absence of any essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (a).
Art. 5: Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage.
Void from the Beginning [Art. 35]. –
(1) Marriage where any party is below eighteen years of age even with the consent of parents or guardians
(2) Marriage 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.
Note: One’s belief in good faith that the solemnizing officer has the required authority is a mistake of fact, and not of law.
(3) Marriage solemnized without a valid marriage license, except in marriages under exceptional circumstances
(4) Bigamous or polygamous marriages not falling under Article 41 (Art. 41: subsequent marriage by present spouse who obtained a declaration of presumptive death for absent spouse prior to the subsequent marriage)
(5) There is a mistake as to the identity of the other contracting party
(6) Subsequent marriages that are void under Article 53 (Non-compliance with Art. 52)
Psychological incapacity
Contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization [Art. 36]
Republic v. Molina, (1997):
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
(2) The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by the experts, (d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage. (4) Such incapacity must also be shown to be
medically or clinically permanent or incurable. (5) Such illness must be grave enough to bring about
the disability of the party to assume the essential obligations of marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling/decisive, should be given great respect by our courts.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall be handed down unless the Solicitor General issues a certification.
Santos v. Bedia-Santos, (1995):
Laid down 3 characteristics for determining psychological incapacity: gravity, antecedent, and incurability.
Tsoi v. CA, (1997):
Refusal of husband to have sex was interpreted to be PI. “A man who can but won’t is PI”
Marcos vs. Marcos (2000):
Psychological incapacity maybe established by the totality of the evidence presented. Personal medical examination could be dispensed with.
Republic vs. San Jose (2007):
There is no requirement that the respondent be medically examined first.
Antonio v. Reyes, (2006):
“Pathological liar” considered as psychological incapacity, Molina guidelines met.
Incestuous marriages Article 37 (Incestuous):
(1) Between ascendants and descendants of any degree, legitimate or illegitimate
(2) Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate
Against Public Policy
Article 38 (Against Public Policy):
(1) Between collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree.
(2) Between step-parents and step-children. Note: Stepbrothers and stepsisters can marry because marriages between them are not among those enumerated in Article 38.
(3) Between parents-in-law and children-in-law.
(4) Between adopting parent and 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.
(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.
Relationships outside of Art. 37 and 38 which are not impediments to marriage: brother-in-law with sister- in-law, stepbrother with stepsister, guardian with ward, adopted with illegitimate child of the adopter, adopted son of the husband with adopted daughter of the wife, parties who have been convicted of adultery
Void subsequent marriages
Article 40 (No Judicial Declaration of Nullity)
A person entered into a subsequent marriage without first getting a judicial declaration of nullity of the first void marriage
Article 41 (Presumptive Death)
Failure of the present spouse to obtain a judicial declaration of presumptive death before entering a subsequent marriage
Article 44 (Bad Faith of both spouses)
Both spouses entering a subsequent marriage after presumptive death, who acted in bad faith
Article 53 (Non-Recording):
Subsequent marriage of spouses, where the requirements of recording under Art. 52 have not have been complied with, shall be null and void. Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. Previous marriage declared void ab initio or annulled Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.
In order to have a subsequent marriage:
(1) The previous marriage should be judicially declared void or annulled (final judgment) (Terre v. Terre (1992), Atienza v. Brillantes (1995)) (2) Must comply with the requirements of Art. 52 Under the Civil Code (superseded by the Family Code), there was no need for a judicial declaration of nullity of a previous marriage for a subsequent marriage to be valid [People v. Mendoza (1954)] Terre v. Terre, (1998):
A lawyer was disbarred for grossly immoral conduct by convincing the other party that a judicial declaration of nullity was not required and subsequently contracting another marriage while his first marriage was subsisting.
If there is no Judicial Declaration of Nullity, subsequent marriage void for being bigamous.
Atienza v. Brillantes, (1995):
Even if the judge’s first marriage contracted in 1965 was void for not having a marriage license, the requirement for a judicial declaration of nullity in Art. 40 still applies for his subsequent marriage contracted in 1991.
UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION
Apiag v. Cantero, (1997):
Where both marriages were contracted prior to the effectivity of the FC, the requirement of Art. 40 does not apply to the second marriage where a right is already vested and which the FC cannot have retroactive effect.
Domingo v. CA, (1993):
The judicial declaration of nullity can be invoked for purposes other than remarriage. Article 40 was interpreted as being a requirement for purposes of remarriage but not limited for that purpose. Separation of property is also a valid purpose for filing for a judicial declaration of nullity.
The word “solely” in Art. 40 referred to validating subsequent marriages but NOT to limiting the purposes for which a judicial declaration of nullity can be invoked.
Borja-Manzano v. Sanchez, (2001):
Legal separation does not severe marital bonds. Cohabitation under Art. 34 merely exempts the spouses from obtaining a marriage license, and is not met when there exists legal impediment to marry during the period of cohabitation.
Subsequent Marriage when one spouse is absent Requirements for Subsequent Marriage to be Valid When Prior Spouse is Absent [Art. 41]:
(1) Subsequent marriage due to ordinary absence where:
(a) Absent spouse had been absent for 4 consecutive years;
(b) The spouse present had a well-founded belief that absent spouse is dead; and
(c) Judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse).
(2) Subsequent marriage due to extraordinary absence where:
(a) Absent spouse had been missing for 2 consecutive years;
(b) There is danger of death under the circumstances set forth in the provisions of Art. 391 CC attendant to the disappearance; (c) The spouse present had a well-founded belief
that the missing person is dead; and
(d) Judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse).
Extraordinary circumstances [Art. 391, CC]:
(a) ON BOARD VESSEL lost at sea voyage, airplane, (b) ARMED FORCES in war, or
(c) DANGER OF DEATH under other circumstances, existence not known
Notes:
(1) Institution of a summary proceeding is not sufficient. There must also be a summary judgment. (Balane)
(2) Only the deserted/present spouse can file or institute a summary proceeding for the declaration of presumptive death of the absentee. (Bienvenido case)
(3) There must have been diligent efforts on the part of the deserted spouse to locate the absent spouse. These diligent efforts correspond to the requirement of the law for a well-founded belief. Effect of Reappearance of Absent Spouse
General Rule: The subsequent marriage remains valid.
Exception: It is automatically terminated by the recording of the affidavit of reappearance of the absent spouse at the instance of any interested person, with due notice to the spouses of the subsequent marriage. [Art. 42]
Note: It is the recording of the affidavit of reappearance that automatically terminates the subsequent marriage. Hence, if absentee spouse reappears without recording affidavit of reappearance, then there is no legal effect. Meanwhile, absentee spouse cannot remarry. (Tolentino)
Exception to the exception: If there is a judgment annulling the previous marriage or declaring it void ab initio. [Art. 42]
Good Faith: PERIOD of absence for PRESUMPTIVE DEATH is MANDATORY thus cannot be shortened by good faith and if be done so will be VOID.
Burden of Proof: Two successive marriages, presumption of validity on 2nd marriage and burden on party ATTACKING VALIDITY OF 2ND MARRIAGE. PRESUMPTION in favor of INNOCENCE prevails over PRESUMPTION of CONTINUANCE OF LIFE OF 1ST SPOUSE & MARITAL RELATIONS.
Difference between Absence in the Civil Code and Family Code
Family Code Civil Code
As to period 4 years under normal
circumstances; 2 years under extraordinary
Absent for at least 7 years;
4 years under extraordinary
Family Code Civil Code circumstances circumstances As to remarriage In order to remarry, summary proceeding is necessary Declaration of
presumptive death is not necessary
As to who can institute the action Can be instituted by the
present spouse, any interested party, and the subsequent spouse
The spouses themselves
As to effect on subsequent marriage Subsequent marriage is
automatically terminated by the recording of an affidavit of reappearance of the absent spouse
Upon reappearance, judicial proceeding is necessary to declare marriage null and void As to ground
Well founded belief that
the absent spouse is dead Generally believed to be dead Connected Provisions
Art. 390, Civil Code. After an absence of 7 years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of 10 years. If he disappeared after the age of 75 years, an absence of 5 years shall be sufficient in order that his succession may be opened.
Art. 391, Civil Code. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (SAAD)
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Notes:
Although 7 years is required for the presumption of death of an absentee in the Civil Code, Art. 41 of the
Family Code makes an exception for the purpose of remarriage by limiting such requirement to 4 years. Article 43 and 44 (Effects of Termination of Bigamous Marriage under Art. 42)
Art. 43:
(1) Children of subsequent marriage – conceived prior to its termination considered legitimate; custody and support decided by court in a proper proceeding
(2) Property Regime – dissolved and liquidated (party in bad faith shall forfeit his/her share in favor of the common children or if there are none, children of the guilty spouse by a previous marriage, and in case there are none, to the innocent spouse) (3) Donation propter nuptias – remains valid, (but if
the donee contracted marriage in bad faith, donations will be revoked)
(4) Insurance benefits – innocent spouse may revoke designation of guilty party as beneficiary, even if such designation is stipulated as irrevocable (5) Succession Rights – Party in bad faith disqualified
to inherit from innocent spouse, whether testate or intestate
Article 44:
Donations: If both parties of subsequent marriage acted in bad faith, any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked
ACTION OR DEFENSE OF NULLITY