Void Marriages

 Characteristics:
1] They are inexistent from the beginning. They are ipso facto void & therefore without need of a
judicial declaration of nullity.
EXCEPTION: For purposes of remarriage a declaration of nullity is necessary before the subsequent
marriage can be contracted.
2] A void marriage can be attacked collaterally
a] Marriages celebrated during the effectivity of the civil code (AM # 02-11-10 SC will not apply) the petition
for declaration of nullity may still be filed even after the death of either party to the marriage. (Ninal case)
b] Marriages covered by AM 02-11-10 can still be questioned (as void) even after the death of either party,
by way of collateral attack by compulsory or intestate heirs of the spouses; not by petition for declaration of
nullity,
3] A void marriage can be questioned even after the death of either party;

4] The action or defense for the declaration of absolute nullity of marriage is imprescriptible;
(Clarification: if covered by AM 02-11-10 can only be questioned during the life of the spouses;

5] Any proper interested parties may attack a void marriage

6]Void marriages have no legal effects except those expressly declared by law
 Personality to file Declaration of Nullity
 Rules FOR MARRIAGES COVERED BY AM 02-11-10 SC:
 Marriages celebrated after the effectivity of the FC but filed
after the effectivity of AM 02-11-10 on March 15, 2003
• A petition for declaration of absolute nullity of void marriage may be
filed solely by the husband or the wife
• Upon the death of either spouse, no more petition for declaration of
nullity may be filed
• However, upon the death of either spouse the compulsory or
intestate heirs can still question the validity of the marriage of the
spouses, IF VOID, not in a proceeding for declaration of nullity but
in a proceeding for the settlement of the estate of the deceased
spouse (filed in the regular courts)
• The heirs cannot question the validity of the marriage during the
lifetime of the spouses because their rights are in the meantime
inchoate.
 Personality to file Declaration of Nullity
 Rules FOR MARRIAGES NOT COVERED BY AM # 02-11-10 SC:
Marriages celebrated during the effectivity of the Civil Code
Those petition for nullity of marriages commenced prior to March 15,
2003, the effectivity of AM # 02-11-10
• If AM 02-11-10 SC is not applicable , the petition for declaration of
nullity of marriage , like any other actions, must be prosecuted &
defended in the name of the real party in interest & must be based
on a cause of action.
• The ruling of the SC in Ninal vs Bayadong allowing the children of a
former marriage to file a petition for declaration of nullity of their
father’s marriage, will apply.
VOID MARRIAGES:
1] Void marriages under Article 35
2] Void by reason of Psychological Incapacity (Article 36)
3] Incestous marriages (Article 37)
a] Between ascendants & descendants of any degree
b] Between brothers & sister, whether full or half blood
4] Void marriages by reason of Public Policy [Article 38]
5] Void second marriage for failure to secure judicial declaration of nullity of a
prior marriage (pursuant to Article 40)
6] Void marriages not expressly enumerated in the Family Code:
a] Same sex marriages
b] Marriages where the parties did not appear before the
solemnizing officer
c] Marriages where the parties merely signed the marriage
contract, without the presence of the solemnizing officer.
 Void Marriages
 Void Marriages under Art 35 FC:
1]Persons below 18 years (even with the consent of parents)
2] Those solemnized by any person not legally authorized to
perform marriages
Exception: When marriage contracted with either or both parties
believe in good faith that solemnizing officer had legal authority.
3] Those solemnized without license except those covered by
Chapter 2
4] Bigamous and polygamous marriage(even if celebrated abroad)
5]Those contracted through mistake of one contracting party as
to the identity of the other
6]Those subsequent marriages that are void under Article 52
 Void Marriages by reason of Public Policy

Article 38:
1] Between collateral relatives up to the 4th degree
(whether legitimate or illegitimate)
2] Between step parents & step children
3] Between parents-in-law & their children in law
4] Between adopting parent & adopted child
5] Between the surviving spouse of the adopting parent & the
adopted child
6] Between the surviving spouse of the adopted & the adopter
7] Between the adopted child & the legitimate child of the adopter
8] Between the adopted children of the same adopter
9] Between parties where one, with the intention to marry the
other, killed the other person’s spouse or his or her own spouse
 Psychological Incapacity
 Psychological Incapacity:
• Concept: refers to no less than a mental (not physical) incapacity that
causes a party’s inability to understand the basic marital obligations as
opposed to a mere inability to comply with them.
 Characteristics:
• Gravity –the illness must be grave or serious enough to bring about the
disability of the party assume the essential obligations of marriage.
• Juridical antecedence – it must be rooted in the history of the party &
must be proven to be existing at the time of the marriage , although the
overt manifestation may emerge only during the marriage.
• Incurable –the incapacity must be incurable or even if it were otherwise
, the cure would be beyond the means of the party involve.
 Psychological Incapacity
 Jurisprudential guidelines in invoking & proving Psychological Incapacity:
1] Plaintiff has the burden of proof
2] Root cause of psychological incapacity must be:
a) medically or clinically identified
b) alleged in the complaint
c] sufficiently proven by experts
d] clearly explained in the decision
3] Incapacity proven to be existing at the time of the celebration
4] Incapacity must be permanent or incurable
5] Illness must be grave enough to bring disability to assume essential marital
obligations
6] Marital obligations refer to Art 68-71, 220, 221 & 225 FC
7] Interpretation of the NAMT of the Catholic Church of the Phils while not
controlling should be given great respect
8] The trial court must order the prosecutor or Sol Gen to appear for the state
 Valid Bigamous Marriage under Article 41
 APPLICABLE LAW:
• If the subsequent marriage took place prior to the effectivity of the
Family Code (August 3, 1988),apply the provisions of the civil code
which does not require a judicial declaration of presumptive death in
order for the marriage to be valid [Armas vs Calesterio [330 SCRA 201
(2001)
• If the subsequent marriage is celebrated during the effectivity of the
Family Code which now requires a judicial declaration of presumptive
death, the absence of a judicial declaration shall render the marriage
void for being bigamous (Art 41 in rel. to Art 35 FC)
• Otherwise stated under existing laws & jurisprudence , in a case where a
spouse is absent for the requisite period, the present spouse may
contract a subsequent marriage only after securing a judgment declaring
the presumptive death of the absent wife.
• Note that the petition must be based on a well founded belief that the
absent wife is already dead.
 Article 45: Voidable/Annullable Marriages

1] Where either party is 18 years of age or over but below 21 and the
marriage was solemnized without the consent of the parents;
2] When either party is of unsound mind unless ratified by cohabitation after
coming to reason.
3] When the consent of either party was obtained by fraud unless the party
with full knowledge of the facts of the fraud freely cohabited with the other, as
husband & wife.
4] When the consent of either party was obtained by force, intimidation or
under influence, unless the same having disappeared or ceased, such party freely
cohabited.
5] That either party was incapable of consummating the marriage with the
other, & such incapacity continues and appears incurable.
6] That either party was afflicted with a sexually transmissible disease found
to be serious & appears to be incurable.
 Grounds for Annulment:
1]Lack of parental consent (father,mother, legal guardian, or person
having legal charge in the order mentioned) of the party 18 & above but
under 24;
2] Insanity
3] Consent obtained through fraud;
4] Consent obtained through force, intimidation or undue
influence;
5]Either party was physically incapable of consummating the
marriage;
6] Either party was afflicted with a sexually transmissible disease
found to be serious & appears to be incurable.
Prescription & who files for annulment:
1] Marriage without parental consent
a] if filed by the party, WITHIN 5 YEARS, after attained the age of 21;
b] by the parents at any time before such party reach age 21;
2] Insanity
a] by the sane spouse who had no knowledge of the insanity
b] by the relative, guardian or person who having legal charge of the
insane, AT ANY TIME before the death of either party
c] by the INSANE SPOUSE, during lucid interval or after gaining sanity
3] Consent obtained through FRAUD by the injured party w/in 5 years from
discovery
4] Consent vitiated by force, intimidation, undue influence; FILED BY THE
INJURED PARTY within 5 years from the time the force, intimidation or undue
influence ceased or disappeared;
5] When either party is “physically incapable” or afflicted with sexually
transmissible disease; BY THE INJURED PARTY w/in 5 years after the marriage
 CHARACTERISTICS OF VOIDABLE MARRIAGE:
1] They are considered VALID & produces civil effects until set aside:
a] Children of voidable marriage are legitimate
b] The property relations of the spouses during the period of
cohabitation shall be community or conjugal partnership of gains as the
case may be
2] The defects of a voidable marriage can generally be RATIFIED OR
CONFIRMED by FREE COHABITATION or by PRESCRIPTION
EXCEPTION: a] If the ground is physical incapacity to consummate marriage
b] If the ground is Sexually Transmissible Disease (STD)
3] A voidable marriage can be assailed only in a direct proceeding for that
purpose but not collaterally.
4] Can be questioned only during the lifetime of either of the parties.
5] The ground must be in existence at the time of the celebration of marriage
 EFFECTS OF ANNULMENT DECREE
1] Termination of the marital bond but the former spouses must
comply with the requirements of Article 52 FC if any of them wants to
remarry; otherwise the subsequent marriage will be void.
2] Children are considered legitimate, if conceived prior to the finality
of the judgement, but parental authority & custody shall be exercised by
the parent designated by the court.
3] Dissolution & liquidation of the absolute community or conjugal
partnership off gains as the case may be.
4] Generally donation propter nupias shall remain valid, but may be
revoked if the donee is in bad faith.
5] The innocent spouse may revoke the designation of the other
spouse who acted in bad faith.
6] The spouse who contracted the marriage in bad faith is disqualified
to inherit from the innocent spouse.
 Legal Separation
 Concept:
The remedy available to parties in a valid but failed marriage for the
purpose of obtaining a decree from court entitling him or her to certain
reliefs such as:
a] the right to live separately from each other without affecting the
marital bond;
b] the dissolution & liquidation of their absolute community or
conjugal partnership property regime; &
c] the custody of their minor children
 Distinction with Annulment & absolute divorce:
A] In legal separation the marriage bond is not severed, in the latter it is
severed & terminated;
B] In legal separation & in absolute divorce the cause/ground exists after
the celebration of marriage; In annulment the ground must exist at the
time of the marriage
 Legal Separation
GROUNDS FOR LEGAL SEPARATION:
1] Repeated physical violence against the petitioner, a common child or child of the
petitioner;
2] Grossly abusive conduct against the petitioner etc.
3] Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation;
4] Attempt to corrupt or induce the petitioner, a common child or child of petitioner to
engage in prostitution, or in connivance in such corruption or inducement
5]Final judgement sentencing sentencing respondent to 6 years imprisonment;
6]Drug addiction, habitual alcoholism, homesexuality & lesbianism;
7] Contracting a bigamous marriage whether abroad or in the Phils;
8]Sexual infedility or perversion
9] Attempt against the life of the petitioner
10] Abandonment for more than 1 year without justifiable cause
• Grosslly Abusive Conduct:
Violence as a ground for legal separation, need not be physical in view of the phrase
“grossly abusive conduct”, as a ground for legal separation under par 1.Rabuya
opines that psychological and sexual violence and repeated verbal abuse may likewise
qualify as a ground for legal separation under par 1.
• Moral pressure:
If the moral pressure is resorted to in order to compel petitioner to change his or her
religious or political affiliation, it is also a ground under par 2 of Art 55
Promotion of Prostitution:
• An attempt of the respondent to corrupt or induce the petitioner or a common child , or
child of petitioner to engage in prostitution, or connive in such corruption or
inducement is a ground for legal separation under par 3 Art 55. “
• Abandonment:
Abandonment is not mere physical estrangement but also financial and moral
desertion. There must be an absolute cessation of marital relations, duties, and rights
with the intention of perpetual separation.
Drug addiction, habitual alcoholism, lesbianism and homosexuality:
To be a ground for legal separation, the drug addiction, habitual alcoholism,
lesbianism & homosexuality must arise only after the celebration of marriage.
If they are already present during the celebration of marriage but they were
cancelled from the other party, there is FRAUD which is a ground for ANNULMENT
 Contracting of subsequent Bigamous Marriage:
Contracting a second a subsequent bigamous marriage is a ground to
declare the second marriage VOID AB INITIO, but it does not affect the validity of
the prior marriage. The remedy of the aggrieved party in the prior marriage is to
file for LEGAL SEPARATION. The mere act of contracting a second is a ground for
Legal Separation even if 2nd marriage is VOID OF INITION on grounds other than
the existence of the first marriage.
 Final Judgment of more than Six Years imprisonment:
Conviction of a crime by final judgment of imprisonment of more than
6 years is a ground for Legal Separation, regardless of the nature of the
crime and even if the respondent is pardoned .
 Sexual Infidelity:
Under par 8 Article 55, this is a ground for legal separation. The
sexual infidelity need not be in the form of adultery or concubinage. Thus a
single act of sexual intercourse on the part of both the husband or wife with
a person other that their spouse will now be a ground for Legal Separation.
 Sexual Perversion ;
According to Tolentino sexual perversion includes all unusual or
abnormal sexual practices which may be offensive to the feelings or sense
of decency of either husband & wife.
 Attempt on the life of the spouse:
Under this ground, there is no need for conviction. But the obvious
intent of the law is to require the presence of “intent to kill”
 Article 56. The petition for legal separation shall be denied on any of the
following grounds:
1] Where the aggrieved party has condoned the offense or act
complained of.
2] Where the offended party has consented to the commission of the
offense or act complained of;
3] Where there is connivance between the parties in the commission
of the offense or act constituting the ground for legal separation;
4] Where both parties have given ground for legal separation .
5] Where there is collusion between the parties to obtain the decree of
legal separation.
 Article 57. An action for legal separation shall be filed within five years
from the time the occurrence of the cause
Defenses in Legal Separation:
1] Condonation –is the conditional forgiveness or remission of the
matrimonial offense which the other has committed. Condonation may either be
express or implied. The general rule is that any cohabitation with the guilty party,
after the commission of the offense will amount to condonation.
2] Consent is agreement or conformity in advance of the commission of the
act. This may also be express or implied.
3] Connivance implies agreement, express or implied, by both spouses to the
ground for legal separation.
4] Collusion means the agreement between husband and wife for one of
them to commit orth to appear to commit , or be represented in court as having
committed a matrimonial offense or to suppress evidence of a valid defense.
5] Recrimination or mutual guilt – when both parties have given ground for
legal separation.
6] Prescription – the action must be filed within 5 years from the time of
 EFFECTS OF LEGAL SEPARATION:
1] The spouses shall be entitled to live separately;
2] Dissolution & liquidation of the absolute community or conjugal property;
3]The custody of minor children shall be awarded to the innocent spouse;
4] Disqualification of the offending spouse to inherit by intestate succession
from the innocent spouse;
5] Provisions made in the will in favour of the offending spouse shall be
revoked by operation of law;
6]After the finality of the decree of legal separation the innocent spouse
may revoke the donations he/she made in fovour of the offending spouse, as well
as the designation of the latter as beneficiary.
NOTE: The action to REVOKE the donation must be brought within FIVE YEARS from
the finality of the decree of legal separation.
 Effects of Reconciliation
A] Joint custody of the children is restored.
B]. The right to succeed by the guilty spouse from the
offended spouse is restored – compulsory only.
C]. With regard testamentary spouse in the will of the
innocent spouse.
D] If the donation propter nuptias succession, reconciliation
will not automatically revive the institution of the guilty were
revoked, the same is not automatically restored.
NOTE: Articles 65 and 66 always allow reconciliation even after
the decree.
 Art. 65. If the spouses should reconcile, a corresponding
joint manifestation under oath duly signed by them shall be filed
with the court in the same proceeding for legal separation.

Art. 66. The reconciliation referred to in the preceding

Articles shall have the following consequences: (1) The legal
separation proceedings, if still pending, shall thereby be
terminated at whatever stage; and (2) The final decree of legal
separation shall be set aside, but the separation of property and
any forfeiture of the share of the guilty spouse already effected
shall subsist, unless the spouses agree to revive their former
property regime. The court's order containing the foregoing shall
be recorded in the proper civil registries.
 ACTS OF VIOLENCE ACCORDING TO RA 9262
(1) Causing physical harm to the woman or her child ;
(2) Threatening to cause the woman or her child physical harm;
(3) Attempting to cause the woman or her child physical harm;
(4) Placing the woman or her child in fear of imminent physical harm;
(5) Inflicting or threatening to inflict physical harm on oneself for the purpose of
controlling her actions or decisions;
(6) Causing or attempting to cause the woman or her child to engage in any
sexual activity which does not constitute rape, by force or threat of force, physical
harm, or through intimidation directed against the woman or her child or her/his
immediate family;
(7) Causing mental or emotional anguish, public ridicule or humiliation to the
woman or her child, including, but not limited to, repeated verbal and emotional
abuse, and denial of financial support or custody of minor children of access to the
woman's child/children.
 ACTS OF VIOLENCE ACCORDING TO RA 9262

(8) Engaging in purposeful, knowing, or reckless conduct, personally or through

another, that alarms or causes substantial emotional or psychological distress to
the woman or her child. This shall include, but not be limited to, the following acts:
(a) Stalking or following the woman or her child in public or private places;
(b) Peering in the window or lingering outside the residence of the woman
or her child;
(c) Entering or remaining in the dwelling or on the property of the woman or
her child against her/his will;
(d) Destroying the property and personal belongings or inflicting harm to
animals or pets of the woman or her child; and
(e) Engaging in any form of harassment or violence;
 (9) Attempting to compel or compelling the woman or her child to engage in conduct
which the woman or her child has the right to desist from or desist from conduct which
the woman or her child has the right to engage in, or attempting to restrict or restricting
the woman's or her child's freedom of movement or conduct by force or threat of force,
physical or other harm or threat of physical or other harm, or intimidation directed
against the woman or child. This shall include, but not limited to, the following acts
committed with the purpose or effect of controlling or restricting the woman's or her
child's movement or conduct:
(a) Threatening to deprive or actually depriving the woman or her child of custody
to her/his family;
(b) Depriving or threatening to deprive the woman or her children of financial
support legally due her or her family, or deliberately providing the woman's children
insufficient financial support;
(c) Depriving or threatening to deprive the woman or her child of a legal right;

(d) Preventing the woman in engaging in any legitimate profession, occupation,

business or activity or controlling the victim's own money or properties, or solely
controlling the conjugal or common money, or properties;
 Art. 41. A marriage contracted by any person during 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 consecutive years and the spouse present has 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 provisions of Article 391 of the Civil
Code, an absence of only two years shall be sufficient. For the purpose
of contracting the subsequent marriage under the preceding paragraph
the spouse present must institute a summary proceeding as provided
in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.
For the purpose of contracting the subsequent marriage under
the preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance
of the absent spouse.