Persons Family Code

Article 41
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 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 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 reappearances of the absent spouse.
Judicial declaration of Presumptive Death
- Not required to validly get married for the 2nd time in
case the first spouse has been absent for more than 4
consecutive years, or 2 years for case of disappearance
where there is danger of death
- Under Art. 349 of the RPC, for the spouse with the
previous marriage not to be guilty of bigamy, he/she
must first obtain a declaration of presumptive death of
the absent spouse
- In Re Szatraw: the Court will not issue a declaration of
presumptive death unless the case involves distribution
of property because:
o Such a presumption is already in the law
o Such judgment can never be final
o Such presumption might lead present spouse to
believe that she can get married again
Judicial Declaration of Absence
- For purposes of the civil marriage law, it is not necessary
to have the spouse judicially declared an absentee
- And even if declaration is made, the period of seven
years (4 yrs for new civil code) must be counted, from
the time the person was last heard from

*No marriage license shall be issued to a widow until after

three hundred days following the death of her husband, unless
in the meantime she has given birth to a child.
Issuance of Marriage License to a Widow
- Purpose: to prevent doubtful paternity
- Under Art 531 of RPC, on Premature Marriages: Any
widow will be punishable by arresto mayor and fined not
exceeding php500 if:
o she marries within three hundred and one days
from the date of the death of her husband
o OR before having delivered if she was pregnant at
the time of the death of her husband
- If marriage license was still obtained during the
prohibited period and she gets married, marriage would
still be valid without prejudice to crim liability
- NO even if wife was legally separated from her husband,
as long as 300 days has not yet passed
- NO even if she was annulled as long as the 300 day
waiting period has not yet passed. Exemptions:
o Unless in the meantime she has given birth to a
child
o Unless the first marriage had been annulled on
the ground of impotence42
Sterility
- People v. Masinsin: if deceased spouse was impotent,
widow may get married again even before the lapse of
the 300-day waiting period and will not be subject to
crim liability
- Reason: no question of doubtful paternity
Article 42
The Subsequent marriage referred to in the preceding Article
shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is
a judgment annulling the previous marriage or declaring it void
ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the

instance of any interested person, with due notice to the

spouses of the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined in case
such fact is disputed.
2 elements:
1. The subsequent marriage under Art.41
2. A sworn statement of the fact and circumstances of
reappearance
Article 43
The termination of the subsequent marriage referred to in the
preceding article shall produce the following effects:
1. The children of the subsequent marriage conceived prior
to its termination shall be considered legitimate and
their custody and support in case of dispute shall be
decided by the court in a proper proceeding
2. The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage
in bad faith, his or her share of the net profits of the
community property or conjugal partnership property
shall be forfeited in favor of the common children or, if
there are none, the children of the guilty spouse by a
previous marriage, or in default of children, the innocent
spouse;
3. Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad
faith, such donations made to said donee are revoked by
operation of law;
4. The innocent spouse may revoke the designation of the
other spouse who acted in bad faith as a beneficiary in
any insurance policy, even if such designation be
stipulated as irrevocable; and
5. The spouse who contracted the subsequent marriage in
bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession
Net profits increase in value between the market value of the
community property at the time of the celebration of the
marriage and the market value at the time of its dissolution.
Net profits do not refer to the capital contributed by each

spouse who retains his/her right thereto regardless of bad/good

faith.
Notes: Article 43 (2, 3, 4 and 5) and Article 44 apply to
marriages declared void ab initio or annulled by final judgment
under Arts. 40 and 45.
Article 44
If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one
in favor of the other are revoked by operation of law
-

Void marriage; Refers to the instance when both spouses

in the subsequent marriage act in bad faith.
There must be a judicial declaration of nullity as required
under Art. 40
Also required is the registration of said judgment in the
civil register (under Art. 52)

Void Marriages: Art 35, 36, 37, 38, 44 and 53

Article 45
The marriage may be annulled for any of the following causes
existing tat the time of the marriage:
1. That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in
that order, unless after attaining the age of twenty-one,
such party freely cohabitated with the other and both
lived together as husband and wife;
2. That either party was of unsound mind, unless such
party, after coming to reason, freely cohabitated with
the other as husband and wife;
3. That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the
other as husband and wife;
4. That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having

disappeared or ceased, such party thereafter freely

cohabitated with the other as husband and wife;
5. That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
6. That either party was afflicted with a sexuallytransmissible disease found to be serious and appears to
be incurable
This article discusses the grounds for annulment which must
exist at the time of the celebration of the marriage
A voidable marriage is valid until it is annulled; before
annulment, a voidable marriage is valid
1. Non-age (below 18)
2. Unsoundness of Mind
o Parties MUST posess mental capacity required by
law to make a will
o True test = whether party could intelligibly give
consent; knew what contract he was entering
into
o Intoxication, somnambulism and drug addiction
are equivalent to unsoundness of mind because of
the lack of mental capacity to give consent
3. Fraud
o A party is induced to enter into a contract
through the insidious words or machinations
of the other; which without them, he would not
have agreed to the marriage
o Only those types of fraud in Art 46 make
marriage voidable
o May be RATIFIED through free cohabitation after
full knowledge of the facts constituting the fraud
4. Force, intimidation, or undue influence
o Force of violence: when in order to wrest
consent, serious or irresistible force is employed
o Intimidation: when one of the contracting parties
is compelled by a reasonable and well-grounded
fear of an imminent and grave evil upon his
person or property, or upon the person or property

of his spouse, descendents or ascendants, to give

his consent
o Undue influence: control over ones will
o A threat to enforce ones legal or just claim does
not vitiate consent.
5. Impotence
o Impotence: lack of power of copulation and not to
mere sterility; sterile person is not necessarily
impotent
o If known by the impotent person, then he
committed fraud and injury. If unknown, there is a
violation of an implied warranty??
o Burden of proof of impotency is upon the
complainant or the potent spouse.
Complainant/potent spouse must prove that
impotency existed at the time of the wedding, is
still existing at the time of complaint and is
incurable
o Proof is needed because presumption is in favor of
the marriage. Impotency, an abnormal
condition, is not presumed.
6. Sexually-transmitted disease, if incurable
o Includes AIDS, herpes, syphilis, gonorrhea,
hepatitis and the like
o Must be serious
Voidable marriages may be ratified by: Free and voluntary
cohabitation
1. Need not be long
2. Must be something more than mere living together
3. Parties must live together as husband and wife,
including sexual relations
Annulment vs. Legal separation
ANNULMENT
LEGAL SEPARATION
1. Defective from the
1. No defect at the
beginning
beginning
2. Cause must already be
2. Cause arises the
existing at the time of
marriage celebration
the celebration of
marriage

3. Seven grounds for

annulment (6 above +
psycho incapacity)
4. Dissolves the marriage
bond; parties free to
marry again
5. Private International
Law: based on lex loci
celebrationis

3. 10 grounds for legal

separation

4. Marriage remains;
parties cannot remarry

5. Private international
Law: based on National
Law because the
validity is not
questioned in legal
separation

Article 46
Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
1. Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving moral
turpitude
2. Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than her
husband
3. Concealment of a sexually-transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
4. Concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, existing at the time of the
marriage
No other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give
grounds for action for the annulment of marriage
Fraud in marriage: the list in Art 46 is exclusive; there is no
other kind of fraud that may be a ground for annulment
- Premarital relations with another woman is not a ground
for annulment
Concealment of wife of being pregnant
- pregnancy must be before or at the time of marriage,
even if wife does not know;

if pregnancy occurs after the marriage, marriage is not

annullable even if the pregnancy was caused by another
man other than the husband
if husband knows about the pregnancy at the time the
marriage was celebrated , especially if 90 days after
wedding child is born (means that the pregnancy is
already evident), marriage cannot be annulled

Article 47
The action for annulment of marriage must be filed by the
following persons and within the periods indicated herein:
1. For causes mentioned n Number 1 of Article 45 by the
party whose parent or guardian did not give his or her
consent, within five years after attaining the age of 21;
or by the parent or guardian or person having legal
charge of the minor, at any time before such party
reached the age of 21;
2. For causes mentioned in Number 2 of article 45, by the
sane spouse who had no knowledge of the others
insanity; by any relative, guardian or person having
legal charge of the insane, at any time before the death
of either party; or by the insane spouse during a lucid
interval or after regaining sanity;
3. For causes mentioned in Number 3 of Article 45, by the
injured party, within five years after the discovery of the
fraud;
4. For causes mentioned in Number 4 of Article 45, by the
injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;
5. For causes mentioned in Numbers 5 and 6 of Article 45,
by the injured party, within 5 years after the marriage
This article enumerates the persons who may sue for
annulment of the marriage and the prescriptive periods:
PERSONS
PERIOD
Non-age
1. before 21 - His Within 5 years after
or her parent
reaching 21
2. after 21
party himself or
herself
Unsoundness Spouse who did
Anytime before the

of Mind

Fraud

not know of the

others insanity;
OR relatives or
guardians of the
insane

Injured party

Force or
Intimidation
or Undue
Influence
Impotence

Injured party

Sexually
transmitted
disease

Injured party

Injured party

death of either party;

When a man marries an
insane girl, marriage
may still be annulled
not by the man
because of his prior
knowledge, but by the
relatives of the insane
Within 5 years after the
discovery of the fraud;
But if both committed
fraud, neither can sue
Within 5 years from the
time the force or
intimidation or undue
influence ceased
Within 5 years from the
time the force or
intimidation or undue
influence ceased
Within 5 years after the
celebration of the
marriage

*general period is 5 years

Article 48
In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take
steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment.
Rationale for the rule on Stipulation of Facts or Confession of
Judgment
- Court will refuse to render judgment when the parties
only submit a stipulation of facts (agreed upon by
husband and wife) or a confession by the erring spouse

and that he or she is not against annulment, instead of

proving theses causes
Court will then proceed to Art 60 paragraph 2, which
provides: in any case, the court shall order that
prosecuting attorney or fiscal assigned to take steps to
prevent collusion between the parties and to take care
that the evidence is not fabricated or suppressed.
Marriage cannot be annulled by means of summary
judgment

Confession of Judgment
1. Confession of judgment by warrant of attorney
defendant gives authority to plaintiffs attorney to tell
the court that the defendant confesses or admits the
plaintiffs claim as true and just; done even before
action is actually filed.
2. Confession of judgment or judgment by confession
cognovit actionem defendant chooses to
acknowledge the rightfulness of plaintiffs action
When a marriage is annulled, obligation to give mutual support
between the spouses ceases
Attorneys fees in annulment cases may be paid by:
- Absolute community property if the action prospers
(annulment is granted)
- Whoever brought the action if the marriage is not
annulled
Damages may be awarded when the marriage is judicially
annulled or declared void ab initio when:
1. there has been fraud, force or intimidation in
obtaining consent of one of the contracting parties
2. either party was impotent at the time of the marriage
and the other did not know
3. One party was insane and the other was aware at the
time of marriage
4. Person solemnizing marriage was not legally authorized
and that was known by one of the parties but concealed
it from the other
5. Bigamous or polygamous marriage and was concealed
by the disqualified party

6. Incestuous marriage or other marriage prohibited by

article 32 when only 1 of the parties knew of the
relationship and not disclosed to the other.
Article 49
During the pendency of the action and in the absence of
adequate provisions in a written agreement between the
spouses, the court shall provide for the support of the spouses
and the custody and support of their common children. The
court shall give paramount consideration to the moral and
material welfare of said children and their choice of the parent
with whom they wish to remain as provided for in Title IX. It
shall also provide for appropriate visitation rights of the other
parent.
Article 50
The effects provided for in Paragraphs (2) (3) (4) and (5) of
Article 43 and in Article 44 shall also apply in proper cases to
marriages which are declared void ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children, and
the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community of the conjugal partnership shall be notified or the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions
of Articles 102 and 129.
Note: The termination of a subsequent marriage shall apply to
final judgments annulling a voidable marriage or declaring the
latters nullity.