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VOID AND VOIDABLE MARRIAGES

Nature Void marriage Voidable Marriage


without legal effect; deemed never to valid until annulled by competent court
have taken place at all
cannot be ratified or confirmed generally made perfectly valid by free
cohabitation
can be attacked collaterally can de questioned only in direct proceedings
may be questioned even after death of can no longer be attacked after death of one of
one of the parties the parties
may be challenged by any proper can be questioned only by a party to it
interested party
co-ownership exist absolute community of property in the absence
of marriage settlement adopting another regime
children are illegitimate children are legitimate if conceived before the
annulment of marriage
Art 35 1. Contracted by any below 18 yrs old - essential requisite of legal capacity is lacking
Marriages that even with parent consent
are void ab
initio
2. A marriage solemnize by a person not - valid if either or both of contracting parties
legally authorized to perform marriages believed in good faith that said person had the
legal authority to do so
3. Marriages without marriage license exemptions:
- marriage in articulo mortis (art 27)
- marriage in inaccessible parts (art 28)
- marriage by a ship captain or airplane chief (Art
31)
- marriage by a millitary commander (art 32)
- marriage by muslims or among members of
ethnic cultural communities (art 33)
- marriage by parties who have cohabited for at
least 5 years
4. Bigamous or polygamous marriages
not falling under art 41
5. Marriage through a mistake of identity
6. Subsequent marriages that are void - Art 53 provides "Either of the former spouses
under art 53 may marry again after complying with the
requirements of the immediately preceding
article (art 52, the requirement of recording in
the civil registry of property of the judgement of
annulment or absolute nullity of the marriage,
the partition and distribution of the properties of
the spouses, and the delivery of the children's
presumptive legitimes); otherwise the susequent
marriage shall be null and void.

Other void Art.4 - in the absence of any essential or - art 35 (see above - exemptions on marriage
marriages formal requisites shall render the license req)
marriage void ab initio except stated in
art 35
Art 36 - which provides that marriage
where any party is psychologically
incapacitated
3 basic requirements:
(1) gravity
(2) juridical antecedence
(3) incurability be present
Art 37- Incestous marriages, whether
relationship between parties be -marriage contracted by persons related by
legitimate of illegitimate; blood, even relations be illigitimate or only half-
(1) ascendants and descendants of blood
any degree and - incestous marriages contravene the voice of
(2) bothers and sisters, whether of nature, degrades the family, againts decency and
full or half blood morals, and absolutely prohibited
Art 38 - Void marriages by reason of
public policy:
(1) between fourth civil degree
relatives
(2) between step-parents and step-
children
(3) between parents-in-law and
children-in-law
(4) between the adopting parent and
the 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 the adopted child and a
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
that other person's spouse or his or her
own spouse
Action to Art 39 provides that "the action or
declare a void defense for the declaration of absolute -because a void marriage is deemed never to
marriage void nullity of a marriage shall not prescribe have taken place at all
is (as emended by RA 8533) - before the amendment, prescriptive period is
imprescriptible 10 yrs after the effectivity of Family Code

Judicial Art 40 - it is a requirement, for purposes -the reason is one cannotdetermine for himself
declaration of of remarriage, that a judicial declaration whether his marriage is valid or not and that a
Nullity of nullity of the marriage be secured, final judgment for the declaration of nullity of
required under otherwise,subsequent marriage is void marriage is needed
the family
code
Subsequent Art 41 - Subsequent marriage during the -valid subsequent marriage:
marriage - subsistence of a previous marriage shall 1. absent spouse must have been absent for four
Presumptive be null and void, unless before the or two consecutive yrs:
death celebration of the subsequent marriage, - if ordinary absence - for 4 consecutive yrs
the prior spouse had been absent for 4 - if due to extraordinary absence - missing for
consecutive yrs and spouse present had a 2 consecutive yrs where there is danger of death
well-founded belief that the absent attendant to the disappearance as when the
spouse was already dead. absent spouse was -
- on board a vessel lost during sea voyage,
For purposes of contracting a subsequent or an airplane which is missing
marriage, the spouse must institute a - in the armed forces and had taken part
summary proceeding for the declaration in the war
of presumptive death of the absentee - in danger of death under other
circumstances
2. the present spouse must not know the
-Four requisites for the declaration of whereabouts of the absent spouse
presumptive death: 3. there must be a well-founded belief that the
1. The absentee spouse had been missing absent sppouse was already dead
for 4 consecutive yrs, or 2 yrs if the 4. there must be institution of a summary action
disappearance occured where there is for the declaration of presumptive death of the
danger of death. absent spouse
2. the present spouse wishes to remarry, 5. there must be a final judgment declaring the
3. the present spuse had a well-founded absent spouse presumtivelly dead
belief that the absentee is dead
4. the present spouse files a summary
proceedings for the declaration of
presumptive death of the absent spouse

Effect of Art 42 - Subsequent marriage shall be


reappearance automatically terminated by the
of absent recording of the affidavit of
spouse reappearance of the absent spouse
Effect of Art. 43 provides the following effect:
termination of 1. on the children - conceived before
subsequent termination of marriage, are legitimate
marriage by 2. on poperty regime - absolute
reappearance community of property or the conjugal
partnership shall be dissolved and
liquidated. If one acted in bad faith, his
share shall be forfeited in favor of
common children, if there are none, to
the children of guilty spouse, if no
children, the innocent spouse
3. On donations by reason of marriage -
shall remain valid, if donee is in bad faith,
donations to donee are revoked by
operation of law
4. On insurance pplicy - innocent spouse
may revoke the designation of the guilty
spouse as beneficiarty, even if stipulation
is irrevocable
5. On succession - spouse acted in bad
faith shall be disqualified to inherit

Voidable Grounds for annulment of marriage - Art defect can be cured by free cohabitation
marriages 45 offended party can file the petition for
annulment
1. lack of parental consent, 18 to below - after attaining the age of 21, the party freely
21 cohabited with other as husband and wife, the
marriage is ratified
2. either party was of unsound mind - marriage can be ratified when such party after
(insanity) coming to reason, freely cohabited with other as
husband and wife
3. consent obtained by fraud -Art 46 provides circumstances that constitutes
fraud:
1. non disclosure of previous conviction
2. concealment of pregnancy
3. concealment of sexually transmissible disease
4. concealment of drug-addicition, habitual
alcoholism, homosexuality or lesbianism
4. consent obtained through force,
intimidation or undue influence
5. either of the party was physically
incapable of consummating the marriage
6. either of the party was afflicted of
sexually transmissible disease
Prescriptive Art 47 - provides who and when to file Who may file and when
period for annulment
filing of
annulment
1. lack of parental consent, 18 to below - the minor, within 5 yrs after reaching the age of
21 21
- the parent of guardian - before the minor reach
the age of 21
2. either party was of unsound mind - the sane spouse who had no knowledge of the
(insanity) others insanity any time before the death of any
party
- any relative, or guardian or person having legal
charge of the insane, at any time before the
death of any party
- insane spouse during lucid interval, or after
regaining sanity
3. consent obtained by fraud -injured party must file action within 5 years after
the discovery of fraud
4. consent obtained through force, -injured party must file action within 5 years from
intimidation or undue influence the time the force, intimidation or undue
influence disappeared or ceased
5. either of the party was physically -injured party must file the action within 5 years
incapable of consummating the marriage after the marriage
6. either of the party was afflicted of - the injured party must bring action 5 years after
sexually transmissible disease the marriage