COMPARISON AMONG VOID, VOIDABLE, LEGAL SEPARATION, DE FACTO SEPARATION
DETAILS VOID VOIDABLE LEGAL SEPARATION DEFACTO SEPARATION
Nature No legal effect Valid until annulled Marriage bonds subsist; separation by a mensa No legal
recognition
et thoro (bed and board)
Means of Impugning Declaration of nullity Petition for annulment Petition for legal separation None
Manner/Kind of attack Direct or Collateral Direct Direct None
Who may file action Anyone Only Spouses Only Spouses None
Article 47
1. The parents, guardian, person having legal charge of party who contracted marriage without parental consent before party reaches 21. The party within 5 years after reaching 21 years old
2. The guardian or person with legal charge of the insane party; the sane party, if insanity was not known; the insane upon regaining sanity or in a lucid Interval
3. Person subjected to fraud within 5 years from discovery of fraud 4. Person subjected to force within 5 years from cessation of the said force 5. For physical incapacity to
consummate and sexuality
transmissible disease, five years from marriage
Prescription Article 39 – Action or defense Normally five years(refer to Article 47) Article 57 None is imprescribtible Five years from the date of occurrence
of cause
Property Regime Co-ownership ACP or CPG ACP or CPG ACP or CPG
Children Illegitimate except those Article 54 Legitimate Legitimate
Conceived per Article 36 Legitimate (Psychological incapacity)
And Article 53 (Allowed Subsequent marriage)
Grounds/action A. Article 35 Article 45 Article 55
1. Those married below 18 1. Marriages of those 18 but 1. Repeated physical violence or grossly Even if with parental consent without parental consent abuse conduct against petitioner, common 2. If solemnizing officer did not 2. Unsound mind children, children of petitioner
Except marriage which are entered 3. Contracted through fraud 2. Physical violence or mental duress to By one or either spouse where they 4. Contracted through force, petitioner, children or children of petitioner to
That solemnizing officer had authority intimidation, duress change religious or political affiliation 3. No valid marriage license except 5. Incapacity to consummate 3. Attempt to corrupt or induce petitioner, as allowed by: 6. Transmittal Sexual Disease petitioner’s children, common children
a. Article 27 (in articulo that is serious and incurable to prostitution or
mortis), 4. Imprisonment by final judgment of more b. Article 28 (residence is Article 46 - Fraud than six years, even if pardoned
such that there is no transportation 1. Non disclosure of conviction 5. Drug addiction or habitual drug use to o to Civil Registrar), by final judgment of moral turpitude 6. Homosexuality or lesbianism
c. Article 34 (Muslim or 2. Concealment of pregnancy by man 7. Sexual infidelity or perversion or other indigenous tribes where other than husband 8. Unjustified abandonment of one year ceremony is held under their custom 3. Concealment of alcoholism or 9. Attempt to kill the petitioner
and tradition) drug addiction, homosexuality or 10. Contracting of another marriage, locally 4. Bigamous or polygamous lesbianism or abroad
Marriages 4. Concealment of sexually 5. Marriage by mistake of identity transmissible disease 6. Void subsequent marriages under
Article 53
B. Article 36 (psychological incapacity) C. Article 37 (Incestuous Marriages) 1. Between ascendants & descendants 2. Between brothers & sisters D. Article 38 (Marriages void by public Policy)
1. Between step parents and step children
2. Between parents-in-law & children-in-law 3. Between adopted children &
adopting parents 4. Between surviving spouse of
adopted child and adopting parent
5. Between surviving adopting parent and adopted child 6. Between adopted children &
legitimate children
7. Between adopted children of same adopting parent
8. Among blood relatives up to 4th degree
9. Between parties where one, with the the intention to marry the other killed the other’s spouse or his or her own spouse
DEFENSES/ NONE Article 45 (Exist at marriage) Article 56
RATIFICATON 1. No parental consent - cohabit 1. Condonation of acts by aggrieved party freely after attaining 21 2. Consent of acts of aggrieved party 2. Unsound mind – party of 3. Connivance
unsound mind after coming to 4. Mutual fault (clean hands) reason cohabit freely 5. Collusion to obtain legal separation 3. Fraud or force – freely cohabit 6. Barred by prescription
after knowledge of fraud or cessation
WHILE PENDING NONE Article 49 Article 61
In the absence of any written 1. Live separately
agreement, Court shall provide for 2. In the absence of written agreement the support of the spouses and the care Court shall appoint either spouse or a third of the common children. Court shall party to administer the ACP or CPG priority to the moral and material well- Article 62
being of the children and choice of In the absence of a written agreement, parent they would prefer to remain Court shall provide for the care of the spouse with. Court will provide appropriate and the care and support of the children. The visitation rights Court shall give priority to the moral and material
Article 48 well being of the children and their choice as to 1. The court shall order the prosecuting which parent they wish to remain. Appropriate attorney or fiscal assigned to appear rights will be given to the other parent. on behalf of the State to take steps Article 58
to prevent collusion or fabrication An action for legal separation shall in no case or suppression of evidence. be tried before six months shall have lapsed 2. No judgment shall be based since the filing of the petition
upon stipulation of facts or Article 59
confession of judgment No legal separation may be decreed unless the court has taken steps toward reconciliation of the spouses and is fully satisfied that, despite such efforts, reconciliation is high improbable.
Article 60
No decree of separation shall be based on stipulation of facts or confession of judgment.
EFFECTS OF ACTION Article 43 (termination of Article 50 Article 63 Article 100 & 127
subsequent marriage) 1. The ACP or CPG will be dissolved 1. Marriage bonds subsist but couple 1. No support to spouse who 1. Children conceived prior to and liquidated except that the guilty will live separately leaves conjugal home without termination are legitimate and their will forfeit his/her share of the net 2. The ACP or CPG shall be dissolved & justification
care and support, in case of dispute profit in favor of common children or liquidated but guilty spouse shall forfeit any 2. Judicial authorization shall shall be decided in proper proceedings in default, the innocent spouse share in the net profit in favor of the common shall be obtained in summary 2. The ACP or CPG shall be 2. Donations proter nuptias are valid children or in default, the innocent spouse proceedings when the liquidated and distributed except except if the donee is the guilty party, 3. Custody of children shall be awarded to consent of spouse to any the spouse who contracted marriage then the donation is revoked by innocent spouse transaction is required by law in bad faith shall forfeit his/her share operation of law. 4. Guilty spouse shall be disqualified from 3. If common property is not to the common children or to guilty 3. Innocent spouse may revoke design- inheriting from innocent spouse by intestate not enough, then the separate spouse’s children, or in default to ation of guilty as beneficiary in succession. Provision in the will in favor of properties of both spouse the innocent wife insurance policy, even if designation guilty spouse shall be revoked by law shall be solidarily liable for 3. Donations propter nuptias are valid is irrevocable Article 64 the support of the family. The except if donee is guilty then 4. The guilty party cannot inherit from 1. Donations to the offending spouse may be present spouse shall in a donations are revoked by operation innocent spouse by testate or intestate revoked by the innocent spouse as well as summary proceeding be of law. 5. Final judgment shall provide for the the designation in the insurance policy. given judicial authority to 4. The innocent spouse shall revoke liquidation, partition, distribute of the 2. The revocation shall be registered in the administer or encumber any the designation of the guilty party as ACP or CPG, the care and support of registries of property in the place where the specific separate property insurance beneficiary common children and the delivery of properties are located. and use fruits to satisfy the 5. Guilty party is disqualified from the presumptive legitimes. 3. Registered alienations, lien, or share of guilty spouse. inheriting by testate or intestate 6. The creditors of the spouse and the encumbrances shall be respected.
succession. ACP or CPG will be notified of 4. Change in beneficiary to take effect
Article 44(Subsequent marriage) proceedings for liquidation upon written notification If both are guilty of bad faith, then 7. In the partition, the conjugal Article 379 of the Civil Code
donations to each other and dwelling shall go to the spouse with When legal separation is granted, the testamentary disposition in favor with whom children will live with. wife may continue to use the surname she of each other are revoked by law (Articles 102 & 129) employed before the legal separation.
Article 371 of Civil Code Article 51
In annulment of marriage, if wife In the partition, the value of the is guilty spouse, then she resumes presumptive legitimes of the using maiden name. If innocent she children shall be delivered in may at her option go back to using cash, securities, or properties, her maiden name or use married name unless the parties have by unless court decrees otherwise or mutual agreement judicially she or her husband marries to approved provided for such another. matter. Children may ask for
enforcement.
Delivery of the legitime shall be be considered as advances on their legitime. They are in no way prejudiced with regard to ultimate successional rights of children upon death of parents.
Article 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 legitimes shall be recorded in the appropriate registry of properties or the civil registry
Article 371 of Civil Code
In annulment of marriage, if wife is guilty party, then she goes back her maiden name. Otherwise she has option unless there is court decree or she or her husband remarries another
Article 53
Either of the former spouses may marry again after complying with the requirements. Otherwise, the subsequent marriage shall be null and void
Convalidation/Reconciliation Article 45 Article 65
Except for physical incapacity to If the couple reconcile, then a joint consummate and the sexual disease, manifestation under oath signed by the marriage contrated for the others the couple will be filed with the can be convalidated by offended party court in the same proceeding for legal continuing to live as husband and wife separation.
Article 66
Effects of reconciliation are as ff: 1. Legal proceedins shall be terminated whatever stage
2. The final decree shall be set aside but the separation of the properties and the forfeiture of the share of the guilty spouse already effected shall subsist, unless the agree to revive their former property regime
3. The Court order shall be recorded in the proper civil registries.
Article 67
The agreement to revive and shall be executed under oath and shall specify the ff:
1. The properties to be contributed 2. Properties to be retained by each 3. The names, addresses and amounts owed to the known creditors
The agreement and the motion for revival shall be filed with the court with copies to all creditors. The Court, after hearing, shall take measures to protect the creditors and such order shall be recorded in the proper
registries of property.
The recording shall not prejudiced creditors not included or notified, unless the separate properties of spouse shall be enough to satisfy the creditor’s claims.
