Article 40. absolute nullity of previous
Same Sex marriage
marriage may be invoked for purposes of
remarriage SOLELY of the final judgement
declaring it void.
*other than for remarriage, no judicial
action is needed to declare a marriage an
absolute nullity.
*for purposes of remarriage, the only
acceptable basis is final judgement
declaring the previous marriage as void.
SOLELY – final judgement declaring the
previous marriage as void NOT for
purposes of remarriage.
Article 40 in relation to article 50 applies
when a previous marriage suffers nullity
and the second marriage does not.
Article 35(36) in relation to article 53 and
52 where a previous marriage is either
void or voidable and that one party
obtains declaration of nullity but fails to
cause the recording.
*children born before the declaration of
nullity under article 53 are considered
legitimate.
* Property relations of void marriages are
governed by co-ownership
*Property relations of voidable marriages
are governed by absolute community or
conjugal partnership
Elements of bigamy:
1. Offender has been legally married
2. Marriage has not been legally
dissolved, or spouse not presumed
dead
3. Contracts a subsequent marriage
4. Second marriage has all the
essential requisites for validity.
*If subsequent marriage took place during
the FC, article 40 applies.
Examples of instances when Declaration
of nullity is not required:
1.
2. Identity-theft
3. Signs marriage contract without a
solemnizing officer
4. Proxy marriages
5. Termination of subsequent
marriage due to the reappearance
of the absentee spouse
*Void marriages can still have a legal
effect in case of bigamy,
*Penal Statutes are strictly construed
against the govt and in favor of the
accused
Article 41. Prior spouse had been absent
for 4 consecutive yrs. and the spouse
present has a well-founded belief that the
absent is already dead. In case of danger
of death under Article 391 of CC, absence
of only 2 yrs.
For remarriage, spouse must institute a
summary proceeding for declaration of
presumptive death without prejudice to
the reappearance of the absent.
Article 42. Subsequent marriage shall be
automatically terminated by RECORDING
OF THE AFFIDAVIT OF REAPPEARANCE of
the absent unless there is a judgment
annulling the previous marriage or
declaring it void.
Sworn Statement of reappearance
recorded in CIVIL REGISTRY OF THE
RESIDENCE OF THE PARTIES TO THE
SUBSEQUENT MARRIAGE, with due notice
to the subsequent spouses and without
prejudice to the fact of reappearance.
WHEN CAN A BIGAMOUS MARRIAGE BE
CONSIDERED VALID?
1. The prior spouse of the contracting
party has been absent as stated in
Article 391 of CC.
 2. Spouse present has a well-founded
belief that the absent is already
dead
3. There is a judicial declaration of
presumptive death of the
absentee.
REQUISITES FOR THE ISSUANCE OF
JUDICIAL DECLARATION OF
PRESUMPTIVE DEATH:
1. Absent spouse has been missing
for 4 consecutive yrs./2 yrs. in
cases when there is danger of
death.
2. Present spouse wishes to remarry
3. Present spouse has a well-founded
belief that the absentee spouse is
dead.
4. Present spouse files a summary
proceeding for declaration of
presumptive death.
WELL-FOUNDED Belief – honest to
goodness inquiries and efforts. Result of
diligent and reasonable efforts to inquire
and locate.
EFFECTS OF DECLARATION OF
PRESUMPTIVE DEATH:
1. Terminates the previous marriage
2. Dissolution of absolute
comm./conjugal part
3. Required to liquidate community
property within one year from the
issuance of presumptive death
prior to subsequent marriage.
Otherwise, mandatory separation
of property shall govern in the
subsequent marriage.
*The mere reappearance of the
previous absentee spouse does not
terminate the subsequent marriage.
CONDITIONS TO TERMINATE THE
SUBSEQUENT MARRIAGE UPON
REAPPEARANCE OF PREVIOUS
SPOUSE:
1. Non-existence of judgment
annulling the previous
marriage/declaring it void ab initio.
2. Recording in the civil registry of
the residence of the subsequent
parties of the sworn statement of
fact or circumstances of
reappearance.
3. Due notice to the subsequent
spouses of the fact of
reappearance
4. Fact of reappearance must be
undisputed/judicially determined.
*If the subsequent marriage is terminated
by death of the subsequent spouse before
the recognition of reappearance of the
previous spouse, the subsequent marriage
is considered as valid. The second spouse
is considered as the surviving spouse for
purposes of property.
Effects If Prior spouse has been presumed
dead thru extrinsic fraud:
**Annul the judgment and not to file
reappearance**
1. It carries an admission that the
previous marriage has been
terminated because of the
absence/presumption of death.
2. The children of the subsequent
marriage will be legitimate
3. Property relations will be the same
as valid marriage
4. Judgement against presumptive
death is a defense against
prosecution of bigamy.
Who can file for an affidavit of
reappearance?
1. Any interested person (1st and 2nd
marriage)
Article 43. Effects of terminating the
subsequent marriage.
1. Children of the subsequent
marriage prior to termination shall
be legitimate and custody shall be
decided by the court.
2. Absolute community or conjugal
part shall be dissolved and
liquidated.
a. In bad faith, his/her share
of the net profits shall be
forfeited in favor of
common children, or if
none children of the guilty
spouse by previous
marriage, or innocent
spouse.
3. Donations by reason of marriage
shall remain valid
a. If bad faith, shall be
revoked by operation of
law
4. Innocent spouse may revoke the
designation of the spouse who
acted in bad faith as beneficiary in
insurance policy EVEN IF
IRREVOCABLE.
5. Spouse in bad faith shall be
disqualified to inherit from the
innocent by TESTATE or
INTESTATE
Article 44. If both spouses of
subsequent marriage acted in bad
faith, marriage shall be VOID and all
donations shall be revoked by
operation of law.
BAD FAITH – a dishonest purpose or
some immoral obliquity.
ARTICLE 45. CAUSES for ANNULMENT
OF MARRIAGE:
1. 18 yrs. old – less than 21 marriage
without a parent’s consent.
Unless, after attaining 21, such
party freely cohabited with the
other and lived as H&W.
ART 47 WHO TO FILE &
PRESCRIPTION:
a. Parent/guardian- before
the party becomes 21.
b. Party – 5 years after
reaching the age of 21.
2. Either party was of unsound mind,
unless such party after coming to
reason freely cohabited with the
other as H&W.
ART 47 WHO TO FILE &
PRESCRIPTION:
a. Sane Spouse with NO
KNOWLEDGE any time
before death
If Sane spouse has
KNOWLEDGE
b. Any relative having
legal charge any time
before death
c. Insane Person during
lucid interval/regaining
sanity any time before
death
Notes:
a. Mental incapacity must
relate to the contract of
marriage.
b. Only the INSANE
person after regaining
sanity can RATIFY by
freely cohabiting.
3. Consent of either party was
obtained through fraud, unless
such party afterwards with full
knowledge of the fact freely
cohabited with the other as H&W.
ART 47 WHO TO FILE &
PRESCRIPTION:
a. By the injured party
within 5 yrs. after
discovery.
4. Consent of either party was
obtained through force,
intimidation or undue influence,
unless after disappearance freely
cohabited.
 ART 47 WHO TO FILE &
PRESCRIPTION:
a. Injured party within 5
yrs. after force,
intimidation etc.
ceased.
Notes:
4 Requisites for duress to
vitiate consent
1. It must be the
determining cause of
the contract
2. It must be unjust
3. It must be
grave/serious
4. Produced a reasonable
well-grounded fear
from the fact that the
person has the means
to inflict injury.
DURESS – party intimidated was
taken from her residence to the
intended place of marriage at a
very late hour or about 1 am and
was made to sign a marriage
contract due to fear of losing life.
It must dominate throughout the
transaction.
*If a man marries under a threat
of criminal prosecution, he cannot
use Duress as defense.
5. Either party was physically
incapable of consummating he
marriage and such is incurable.
ART 47 WHO TO FILE &
PRESCRIPTION:
a. Injured party within 5
yrs. after the marriage
NOT from discovery.
b. NO RATIFICATION
Notes:
*Must have existed at the time of
marriage. Impotency caused by
supervening infirmity does not
invalidate marriage.
IMPOTENCY – physical inability to
have sexual intercourse. It is not
synonymous with sterility (inability
to procreate).
Triennial Cohabitation – if a wife
remains a virgin for a period of 3
yrs., it is presumed as impotency
of the husband.
REQUISITES OF PHYSICAL
INCAPACITY:
1. Must be existing at the
time of marriage
2. Same continues up to
the filing of the action
for annulment
3. Appears to be incurable
4. Unknown to the other
contracting party
6. Either party was afflicted with STD
found to be serious and incurable.
ART 47 WHO TO FILE &
PRESCRIPTION:
a. Injured party within 5
yrs. after the marriage.
ARTICLE 46. What constitutes FRAUD?
1. Non-disclosure of a previous
conviction by final judgement of a
crime involving moral turpitude.
Moral Turpitude – contrary to
justice, honesty, principle or good
morals
2. Concealment by the wife that at
the time of marriage she was
pregnant by another man.
*Does not include false
representation as to chastity.
3. Concealment of STD regardless of
nature existing at the time of
marriage.
*must be serious and incurable.
Otherwise, not a ground unless
concealed at the time of marriage.
 4. Concealment of drug addiction,
habitual alcoholism or
homosexuality or lesbianism
existing at the time of marriage.
*If not concealed, not a ground.
VOIDABLE – defect in consent; valid until
annulled.
 Annulment does not destroy the
juridical consequences which the
marital union produced in its
continuance.
ANNULL – reduce to nothing
NULLIFY – to abolish
NULL & VOID – does not exist from the
beginning
CHARACTERISTICS OF VOIDABLE
MARRIAGE:
1. Valid unless declared by court
2. The defect to be a ground for
annulment must be present at the
time of marriage.
3. Cannot be assailed collaterally
except in direct proceeding
4. Can be assailed only during the
lifetime of the parties and not after
death.
5. Only the parties can assail it
6. Subject to prescription
7. Generally subject to ratification
except par 5 & 6
RATIFICATION or CONFIRMATION – act
or means by which efficacy is given to
contract which suffers from vice of curable
nullity.
- Act of the person entitled to bring
the annulment with knowledge of
the cause and after it ceased
validates the contract either
express or implied.
REQUISITES OF RATIFICATION:
1. Contract should be tainted with
vice susceptible of being cured
2. Ratification should be effected by
person who is entitled to do so
3. Effected with knowledge of the
vice or defect of the contract
4. Cause of nullity or defect should
have already disappeared
*ACTION to annul a voidable contract is
extinguished by ratification.
FRAUD IN ANNULMENT OF MARRIAGE VS
FRAUD IN ANNULMENT OF ORDINARY
CONTRACTS
1. MC – non-disclosure/concealment
of some facts deemed material to
the marital relations.
OC – insidious words/machinations
employed by one to induce the
other to enter into contract.
Effects of Final Judgment of Annulment:
1. Termination of marital bond as
if it was never entered but the
effects are not totally wiped
out.
2. Children conceived before
annulment are legitimate.
3. Absolute Community/Conjugal
Partnership is dissolved and
shall be liquidated.
a. If in bad faith, the
forfeiture in favor of the
common children,
children of guilty
spouse, innocent
spouse.
4. Must provide for the custody
and support of the common
children and deliver
presumptive legitime.
5. Donations by reason of
marriage shall remain valid
except if in bad faith.
6. Innocent spouse may revoke
the designation of insurance
 policy of the other spouse who
acted in bad faith.
7. The spouse in bad faith shall
be disqualified to inherit from
innocent spouse.
8. If wife is the guilty party, she
shall resume her maiden name
and surname. If in good faith,
she may continue using the
husband’s surname except: the
court orders or former husband
remarries.
9. The parties are free to remarry
after compliance with article
52.
Article 48. Prosecuting Attorney or fiscal
assigned to appear on behalf of the state
to prevent collusion and take care that the
evidence is not fabricated or suppressed.
No judgement shall be based on facts or
confession of judgement.
Article 49. During pendency and absence
of written agreement, the court shall
provide for support of the spouses and
custody of common children.
Jurisdiction: Family Court of the province
or city where the petitioner/respondent
has been residing for at least 6 months
prior to the filing or for non-resident
where he may be found in the Phil.
CONTENTS and FORM of PETITION:
1. The petition shall allege the
complete facts constituting the
cause of action.
2. Shall state the names and ages of
the common children of the parties
and the regime.
3. Petition must be verified and
accompanied by a certification
against forum shopping. Must be
signed personally by the petitioner.
No petition may be filed solely by
counsel or atty-in-fact. If in foreign
country, authenticated by the
authorized officer of Phil. Embassy,
consul-general…
4. Filed in 6 copies. Petitioner shall
serve a copy to OSG and office of
city or provincial prosecutor within
5 days from filing and submit to
court proof of such service within
the same period.
SERVICE OF SUMMONS
1. Residence of the respondent. If
unknown and cannot be located,
Publication in newspaper of
general circulation once every
week for 2 consecutive weeks. In
addition, copy of summon shall be
served in the respondent’s last
known address by registered mail
or other means court deems app.
2. Summon must contain the ff:
a. Title of the case
b. Docket number
c. Nature of the petition
d. Principal grounds of the
petition and reliefs prayed
for;
e. Directive to respondent to
answer within 30 days from
last issue of publication.
*No motion to dismiss the petition except
for lack of jurisdiction over the subject or
parties.
*Respondent to file an answer within 15
days or 30 days after publication. Verified
by himself not by counsel or atty-in-fact.
*Order of default NOT ALLOWED if the
respondent fails to answer.
*Dismissal upon NOTICE of Plaintiff - may
file a notice of dismissal at any time
before service of an answer, motion for
summary judgment. Court shall issue an
order confirming.
*Dismissal upon MOTION of Plaintiff –
complaint shall not be dismissed at the
plaintiff’s instance.
*if respondent fails to answer, court to
order prosecuting atty to investigate
collusion and evidences.
* SG and prosecuting atty shall submit to
the court certification of agreement or
disagreement within 15 days from the
date the case is deemed submitted for
resolution of the court.
ROLE OF THE PUBLIC PROSECUTOR (if no
answer from respondent):
1. Within 1 month after receipt of
court order, public prosecutor
shall submit a report to the
court stating whether the
parties are in collusion and
serve the parties and counsel
copies.
2. If with collusion, prosecutor
states in his report.
3. Parties shall file their
respective comments on the
finding of collusion within 10
days from receipt.
4. Court shall set the report for
hearing
5. If convinced of collusion,
dismiss the case
6. If public prosecutor reports
that no collusion exists, court
sets for pre-trial
In case of declaration of nullity and the
respondent did not answer – prosecutor
on behalf of SG during EX PARTE
presentation of evidence be present and
cross examine the expert witness.
*Failure of the RTC to require the
appearance of the prosecutor will not
nullify the compromise agreement on their
properties.
PRE-TRIAL STAGE:
- Mandatory
- If petitioner fails to appear, case is
dismissed unless counsel or
authorized representative appears
with valid reason
- If respondent has filed an answer
but fails to appear, court to
proceed with the pre-trial and
require prosecutor to investigate
non-appearance of respondent.
- Respondent to submit within 15
days a report to the court stating if
the non-appearance is due to
collusion.
- If there is no collusion, court to
require the public prosecutor to
intervene during the trial
- Failure to file the pre-trial brief or
comply with its required contents
shall have the same effect as
failure to appear in pre-trial.
PROHIBITED COMPROMISE:
1. The Civil Status of persons
2. The validity of marriage or
legal separation
3. Any ground for legal separation
4. Future Support
5. Jurisdiction of the courts
6. Future legitime
DECISION:
- If court grants the petition, it shall
do only after compliance with
article 50 & 51 of FC
- Parties, SG, public prosecutor shall
be served with copies of the
decision personally or through
registered mail
- If summoned through publication
and failed to appear, the decision
should be published once in a
newspaper of GC.
- Decision becomes final upon
expiration of 15 days from notice
to the parties.
 - Entry of judgment should be made
if no appeal
- Upon Finality, court to issue the
decree if no properties
- If with properties, observe the
procedure prescribed on liquidation
etc.
- Entry of judgment shall be
registered in the civil registry
where the marriage was recorded
& civil registry where family court
granting the petition is located.
*Marriages declared as void under article
36 need not wait for liquidation of
properties before being declared as void.
APPEAL:
- No appeal shall be allowed unless
appellant filed a motion for
reconsideration/new trial within 15
days from notice of judgment.
- Aggrieved party or SG may appeal
by filing a notice of appeal within
15 days from denial.
COMPLIANCE ON THE REQUIREMENTS
FOR DECLARATION OF ABSOLUTE
NULLITY:
1. Registration of the entry of
judgment granting the petition in
the civil registry where the
marriage was celebrated and the
family court which granted.
2. Registration of approved partition
and distribution of properties in
the Register of Deeds where the
real property is located.
3. Delivery of children’s presumptive
legitime
REGISTRATION & PUBLICATION OF
DECREE:
- Prevailing party to cause
registration in civil registry of
residence, family court granting &
NSO
- Shall report to the court
compliance with the requirement
within 30 days from receipt of
copy.
REGISTERED DEGREE – best evidence of
declaration of absolute nullity or
annulment
PROVISIONAL PROTECTION ORDERS:
- Court may grant after receipt of
verified petition with or without
hearing.
1. Spousal Support
-from the common properties
-court may award support to
either spouse it deems just
- court to consider the ff
factors:
a. The spouse seeking support
is the custodian of the child,
circumstances made it difficult
for him/her to seek
employment
b. time necessary to acquire
education and future earning
capacity
c. duration of the marriage
d. comparative financial
resources of spouses
e. needs and obligations of
each spouses
f. contribution of each spouse
to the marriage
g. age and health of spouses
h. physical & emotional
conditions of spouses
i. ability of the supporting
spouse to give support
 j. any other factor the court
deem just
- Family court may direct deduction
from salary of the spouse
CHILD SUPPORT
Factors in giving provisional
support
1. Financial resources of custodial
& non-custodial parent
2. Physical & emotional health of
the child & special needs
3. Lifestyle the child is
accustomed to
4. Non-monetary contributions of
parents to well-being
CHILD CUSTODY
*paramount consideration to the
material and moral welfare of the child.
Factors in determining child
custody:
1. Agreement
2. Desire and ability of each parent to
foster a loving relationship b/w the
child and the other parent
3. Child’s health, safety & welfare
4. History of the child or spousal
abuse by the person seeking
custody (including those courting
the parent)
5. Nature & frequency of contact with
both parents
6. Habitual use of alcohol/regulated
substances
7. Marital misconduct
8. Most suitable physical,
emotional…environment
9. Preference of the child if over 7
yrs. old unless the parent chosen
is unfit.
ORDER OF PROVISIONAL CUSTODY:
1. Both parents jointly
2. Either parent taken all
considerations
3. Surviving grandparent; if several to
the choice of the child is above 7
unless unfit
4. Eldest brother/sister over 21 y/o
unless unfit
5. Child’s actual custodian over 21
y/o unless unfit
6. Any other person deemed by the
court suitable to provide care &
guidance.
*custodian designated by court shall give
the court and parents 5-day notice of any
plan to change the residence of the child
or take the child out of residence for more
than 3 days without prejudice to the
visitation rights.
HOLD DEPARTURE ORDER
- No child be brought out of the
country without prior order from
the court
- Family court to furnish DFA & BOI
copy within 24 hrs. from issuance
- Information: complete name
(w/middle name) date & place of
birth, residence; docket number
and case title; nature of the case;
date of hold departure order. And
recent photo if available
- Court may recall upon verified
motion after summary proceeding
for the interest of the child
ORDER OF PROTECTION
1. Stay away from
home/school/business of the
child
 2. Refrain from harassing the
person in custody of the child
3. Refrain from acts of
commission or omission with
risk to health, safety, welfare
4. Permit the parent entitled to
visitation to visit
5. Permit designated party to
enter the residence to take
personal belongings not part of
proceedings
6. To comply with other orders
necessary for the child
ADMINISTRATION OF COMMON
PROPERTY
- If the other spouse abandons, the
other spouse upon oath may be
issued provisional order as
appointed to solely administer the
common properties.
- Administrator may not dispose any
common property or specific
separate prop of either spouse
without authority of court.
- Provisional order shall be
registered in registry of deeds and
annotated.
ARTICLE 50. Final Judgment shall provide
for liquidation, custody and support of
common children and delivery of
presumptive legitime.
All creditors shall be notified of
liquidation proceedings
Conjugal dwelling and lot shall be
adjudicated under art 102 & 129
Article 51. value of presumptive legitime
computed as of the date of final judgment
shall be delivered in cash, property.
The children or guardian or trustee
may ask for enforcement of judgment
The delivery of presumptive
legitime shall not prejudice succession and
must be treated as advances of their
legitime.
PROPERTY RELATIONS
Void Marriages:
a. No impediments and
subsequently declared void –
Art 147 FC on co-ownership.
Equally divided.
b. With legal impediments – Art
148 FC proportionate to their
contribution. On bigamous
marriage, the married party’s
share shall be forfeited to the
common properties of the 1st
first marriage.
VALID & VOIDABLE – Absolute community
or conjugal partnership
ARTICLE 52. Judgment, distribution of
property and presumptive legitime shall
be recorded in civil registry and registry of
properties otherwise will not affect 3rd
persons.
ARTICLE 53. either of the former spouses
may remarry complying with the
requirements. Otherwise, subsequent
marriage is void.
ARTICLE 54. Children conceived under art
36 and 53 are legitimate.
REQUIREMENTS OF REGISTRATION TO
BE ISSUED WITH DECREE OF ABSOLUTE
NULLITY
1. Registration of entry of judgment
granting the petition for
declaration of nullity or annulment
in the civil registry where the
family court is located.
2. Registration of approved partition
and distribution of properties in
the registry of deeds where the
property is located.
3. Delivery of children’s presumptive
legitime in cash, property or sound
securities.