REVIEWER
FAMILY CODE OF THE PHILIPPINES
Elmer Rabuya
CHAPTER 3 - VOID AND VOIDABLE MARRIAGES
Void Marriage
> is deemed never to have taken place at all and cannot
be the source of rights
> can never be ratified and is not subject to prescription
> can be attacked collaterally
> can be questioned even after the death of either party
> any proper iterested party may attack a void marriage
> have no legal effects except those declared by law
regarding co-ownership or ownership through actual
joint contribution and its effect on the children born to
such void marrriages as provided in Art 50 in relation to
Arts 43 and 44 as well as Arts 51, 53 and 54 of the FC
WHO MAY FILE?
ADMINISTRATIVE MATTER ( A.M No. 02-11-10-SC)
Rule on Declaration of Absolute Nullity of Void Marriages and Annullment of Voidable Marriages
> took effect on March 15, 2003
Voidable Marriage
> is considered valid and produces all its legal effects, until it is
set aside by a competent court in an action for annullment
> can be generally ratified or confirmed by free cohabitation
or prescription
> can only be assailed only in a direct proceeding for that
purpose and not collaterally
> can be assailed only during the lifetime of the parties and not
after death of either, in which case the parties and their offspring
will be left as if the marriage had been perfectly valid
> the action is prescribe
> only the parties to a voidable marriage can assail it
> the property regime governing voidable marriages is generally
absolute community or conjugal partnership and the children conceived
before its annullment are legitimate
> under the said rule, the petition for declaration of absolute nullity of void marriage may not be filed by any party outside of the
marriage. The rule made it exclusively a right of the SPOUSES
> a petition for declaration of absolute nully of void marriage may be filed solely by the husband or the wife

RATIONALE OF THE RULE:

1. Only an aggrieved or injured spouse may file petitions for annullment of voidable marriages and declaration of absolute
nullity of void marriages. Such petitions cannot be filed by the compulsory or intestate heirs of the spouses or by the State
(Section 2; Section 3, paragraph a)

The Committtee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only
inchoate rights prior to the death of their predecessors, and hence can only question the validity of the marriage of the spouses
upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spoused filed in the regular
courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.

APPLICABILITY OF A.M No. 02-11-10-SC

> Section 2, paragraph (a), of A.M. No. 02-11-10-SC explicitly provieds the limitation that a petition for declaration of absolute
nullity of void marriage may be filed soley by the husband and wife. Such limitation demarcates a line to distinguish
between marriage covered by the FC and those solemnized under the regime of the Civil Code
> extends only to marriages covered by the FC, which took effect on Aug 3, 1988, but, being a procedural rule that is
prospective in application, is confined only to proceedings commenced after March 15, 2003.

RULE FOR MARRIAGES CELEBRATED UNDER THE CIVIL CODE

> In CARLOS, the SC clarified thath the absence of a provision in the old and new Civil Codes cannot be construed as
giving a license to just any person to bring an action to declare the absolute nulliyt of a marriage. According to the
Court in the said case, citing the AMOR-CATALAN v. COURT OF APPEALS, the plaintiff must still be the party who
stands to be benefited by the suit, or the party entitled to the avails of the suit, for it is basic in procedural law that
every action must be prosecuted and defended in the name of the real party interest.

The Court explained in CARLOS:

 "The marriage having been solemnized prior to the effectivity of the FC, the applicable law is the CIVIL CODE
which was the LAW in EFFECT at the time of its celebration. But the Civil Code is silent as to who may bring
an action to declare the marriage void. Does this mean that any person can bring an action for the
declaration of nullity of marriage?

We respond in the negative. The absence of a provision in the CC cannot be construed as a license for any
person to institute a nullity of marriage case. Such person must appear to be the party who stands to be
benefited or injured by the judgement in the suit, or the party entitled to the avails of the suit. Elsewise stated,
plaintiff must be ther real party-in-interest. For it is basic in procedural law that every action must be
prosecuted and defended in the name of the real party-in-interest."

IF GROUND IS BIGAMY
> In JULIANO-LLAVE v. REPUBLIC, the Court held that the rule in Section 2(a) of A.M. No. 02-11-10-SC that only the
husband or wife can file a declaration of nullity or annullment of marriage does not apply if the reason behind the
petition is bigamy. The ruling was reiterated and further clarified in FUJIKI v. MARINAY, where the court explained:
"Section 2(a) of A.M. No. 02-11-10-SC doses not preclude a spouse of a subsisting marriage to question the
validity of a subsequent marriage on the ground of bigamy. On the contrary, when Section 2(a) states that
" a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the
wife" - it refers to the husband or the wife of the subsisting marriage. Under the Art. 35 (4) of the FC,
bigamous marriage are void from the beginning. Thus, the parties in a bigamous marriage are neither the
husband no the wife under the law. The husband of the wife of the prior subsisting marriage is the one
who has the personality to file a petition for declaration of absolute nullity of void marriage under
Section 2(a) of A.M. No. 02-11-10-SC"

RULE 108 OF RULES OF COURT

Rule 1, Section 3 of Rules of Court provides that "a special proceeding is a remedy by which a pary seeks
to establish a status, a right, ar a particular fact"

> Rule 108 creates a remedy to rectify facts of a person's life which are recorded by the State pursuant to the
Civil Register Law or Act No. 3753. These are fats of public consequence such as birth, death or marriage,
which the State has an interest in recording. As noted by SG, in CORPUZ v. STO TOMAS this Court has declared
that " the recognition of the foreign divorce degree may be made in a Rule 108 proceeding itself, as the object
of special proceedings (such as that in Rule 108 of the Rules of Court) is precisely to establish the status or
right of a party or a particular fact"

RULE 108, Section 1 of the Rules of Court:

Section 1: Who may file petition - any person interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the civil register, may file a verified petition for
the cancellation or correction of any entry relating thereto, with the Regional Trial Court of the province
where the corresponding civil registry is located (emphasis supplied)

See Fujiki case

ARTICLE 35: The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with consent of parents or guardians
> a marriage contracted by any party below 18 years of age is void from the beginning. This RULE is ABSOLUTE
and does not admit of any exception, regardless of the celebration of the marriage. As such, even if the marriage
is with the consent of the parents or guardian, the same is still void ab initio. There is here an absence of legal
capacity, which is the essential requisite of marriage

(2) Those solemized by any person not legally authorized to perform marriages unless such marriages were
contracted with either or both parties believing in good faith that the solemizing officer had the legal
authority to do so
> marriages solemnized by any person not authorized to perform marriage are generally void ab initio. Under the
existing laws, only the following persons are authorized to solemnize marriages (1) incumbent members of
judiciary within the court's jurisdiction; (2) priest, rabbi, imaam or minister of a church or sect subject to the
conditions laid down in Art 7(2); (3) ship captain or airplane chief in cases mentioned in Art 31; (4) military
commander of a unit subject to the conditions mentioned in Art 7 (4) and 32; (5) consul-general, consul or
vice-consul in the cases provided in Art 10; and (6) mayors.

CONCEPT OF GOOD FAITH

> the good faith referred to in Art 35 (2) must necessarily be one that is base on a mistake or ignorance of
facts and not based on ignorance of law, following the principle enunciated in Art 3 of the new CC that
"ignorance of the law excuses no one from compliance therewith"

Example cases involving ignorance of the law

(1) if the judge solemnized the marriage outside of the court's jurisdiction, even if the parties believed in good
faith that he is authorized to perform marriages outside courts jurisdiction;
(2) if none of the parties to a marriage solemnized by a religious solemnizer belong to the solemnizer's
church or sect
(3) if the marriage solemnized by a ship captain or airplane chief in not between passengers or crew members
even if the marriage is in articulo mortis
(4) a marriage solemnized by a military commander of a unit if the chaplain is not absent, even if the marriage
is in articulo mortis
(5) a marriage solemnized by a military commande unit outside fo the zone of military operations, even if
the marriage is in articulo mortis
(6) a marriage solemnized by a consul-general, consul or vice-consul between a Filipinos if the marriage is
celebrated in the Philippines
(7) a marriage solemnized by a consul-general, consul or vice-consul between a Foreigner and a citizen of the
Philippines, if not recognized a valid in the place of celebration

Example cases involving ignorance of the fact

(1) where a person posed as a priest and either or both of the parties are not aware of the deception
(2) where a religious solemnizer is not duly authorized by his church or sect to perform marriages but
either or both of the parties are not aware of such fact
(3) where a religious solemnizer is not duly registered with the Civil Registrar General but either or both
of the parties are not aware of such fact
(4) where the religiuos solemnizer acted beyond the limits of his written authority but either or both
of the parties are not aware of such fact

(3) Those solemnized without a licensed, except those covered by the preceding Chapter
> a marrage license is a formal requisites/requirment; its absence renders the marriage void ab initio

SY v. COURT OF APPEALS
" Considering that the marriage licensed was issued almost one year after the marriage ceremony, the
Court concluded that the marriage was indeed contracted without a marriage license. Thus, the Court
declared the marriage between the parties vod ab initio for lack of a marriage license at the time of
its celebration"

SEVILLA v. CARDENAS
"the Court clarified that to be sufficient proof of the non-issuance of a marriage license, the certification
to be issued by the Local Civil Registrar must categorically state that the document does not exist in his
office or the particular entry could not be found in the register despite diligent search. If there is no showing
that the LCR exerted diligent efforts to locate the records of the said marriage license, the marriage
cannot be declared void by reason of absence of marriage license"

ABBAS v. ABBAS
"the CA reversed the decision of RTC declaring the marriage void on the ground of absence of marriage license.
Here, the Municipal Civil Registrar of Carmona, Cavite, where the marriage license was issued, and that the serial
number of the marriage license appearin in the couple's marriage certificate pertained to another couple. The
CA held that the certification of the MCR failed to categorically state that a diligent search for the marriage
license of the couple was conducted, and thus held that said certification could not be accorded probative value.
In reversing the decision of CA, the SC held that proof does exist of a diligent search conducted by the MCR as the
marriage license appearing in the marriage contract was indeed located an submitted to the court, except that
the same was issued to some other couple. Based form the certification issued by the MCR, the Court concluded
htat no marrigae license was proven to have been issued to the couple"
(4) Those bigamous and polygamous marrigage not failing under Article 41
> a marriage contemplated in Art 35(4), of FC, refers to a subsequent marriage contracted during the subsistence of a
previous marriage. The previous marriage must be either valid or at leaset voidable. Here, the subsequent marriage
is bigamous and, therefore, void pursuant to Art 35(4), regardless of the place of celebration of the subsequent
marriage.
> bigamous marriage contemplated in Art 35(4), of FC, must not be confuse with the subsequent marriage contemplated
in Art 40 of the same code. Art 40 refers to the declaration of nullity of a subsequent marriage contracted by a spouse
of a prior void marriage before the latter is judicially declared void.
> in Art 40, unlike Art 35(4), the prior marriage must be void ab initio. Under Art 40 of the FC, for purpose of remarriage
there must first be a JUDICIAL DECLARATION OF NULLITY of a previous marriage, though VOID, before a party can enter
into a second marriage, otherwise, the second marriage would also be void

As explained by Justice Carpio in his concurring opinion in ABUNADO v. PEOPLE

"Art 40 of the FC applies only to a situation where the previous marriage suffers from nullity while the second
marriage does not. Under Art 40, what requires a judicial declaration of nullity is the previous marriage, not
the subsequent marriage. Art 40 does not apply to a situation where the first marriage does not suffer any
defect while the second is void"

EXCEPTION TO THE RULE

An exception to the rule is the subsequent marriage contemplated under the provisions of Article 41 of the FC which is
considered a valid marriage when both parties thereto did not act in bad faith. In marriage contemplated in Art 41,
even if the presumptively dead spouse turns out to be alive and files the required affidavit of reappreance, the subsequent
marriage does not become void but is simply terminated and the effects of dissolution of a valid marriage shall rise.

(5) Those contracted through mistake of one contracting party as to the identity of the other
> a marriage contracted through mistake of one contracting party as to the identity of the other is void from the
beginning. For the marriage to be rendered void, it is important that the mistake in identity must be with reference
to the ACTUAL PHYSICAL IDENTITY of the other person/party, not merely a mistake in the name, personal qualifications,
character, social standing, etc. There is here an absence of REAL CONSENT,, which is an essential requisites of a valid
marriage, thereby rendering the marriage void ab initio

(6) Those subsequent marriages that are void under Article 53

> If a previous marriage has been annulled or declared a nullity in a final judgement, the effects therefore includes
liquidation, partition and distribution of their properties, if, any, and, in proper cases, the delivery of the children's
presumptive legitimes. The law further requires the recording and registration of the following in the appropriate
civil registry and registries of property; (1) the judgment of annulment or of absolute nullity of the marriage; (2)
the partition and distribution of the properties of the spouses; and (3) the delivery of the children's presumptive
legitimes. Only after complying with the foregoing requirement may either of the former spouses be allowed to
contract another marriage. If these requirements are not complied with and either of the former spouses contracts
amother marriage, the subsequent marriage is void ab initio

ARTICLE 36. A MARRIAGE CONTRACTED BY ANY PARTY WHO, AT THE TIME OF CELEBRATION, WAS PSYCHOLOGICALLY
INCAPACITATED TO COMPLY WITH THE ESSENTIAL MARITAL OBLIGATIONS OF MARRIAGE, SHALL LIKEWISE BE VOID
EVEN IF SUCH INCAPACITY BECOMES MANIFEST ONLY AFTER ITS SOLEMNIZATION (as amended by EO No. 227)

Source of Article 36
> it was taken by the Family Code Revision Committee form Canon 1095 fo the New Code of Canon Law, which reads:
"Canon 1095. They are incapable of contracting marriage:
1. who lack sufficient use of reason;
2. who suffer form a grave defect of discretion of judgment concerning essential matrimonial rights and duties
to be given and accepted mutually;
3. who for causes of psychological nature are unable to assume the essential obligations of marriage
> the purpose of including the provision in our FC is to harmonize our civil laws with the religious faith of our people
it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such
appellate tribunal
> a unique feature of this law, therefore, is its intended open-ended application, as it merely introduced an abstract concept
psychological incapacity that disables compliance with the contractual obligations of marriages without any concrete
definition or, at the very least, an illustrative example. The law must be applied therefore based on how the concept of
psychological incapacity was shaped and developed in jurisprudence

In 1995, the SC promulgated SANTOS v. COURT OF APPEALS, the fist landmark case on psychological incapacity where the
Court declared that psychological incapacity must be CHARACTERIZED by:
(a) GRAVITY - The term psychogical incapacity to be a ground for the nullity of marriage under Art 36 of the FC, refers to
a serious psychological illness afflicting a party even before the celebration of marriage. To qualify as psychological
incapacity as a ground for nullification of a marriage, a person's psychological affliction must be grave and serious as to
indicate an utter incapacity to comprehend and comply with the essential objects of marriage, inluding the rights and
obligations between the husband and wife.

In ANTONIO v. REYES, for example, where it was shown that the respondent was a pathological liar and had difficulty
distinguishing truth from fiction,or at least abide by the truth, the Court held that the respondent is psychologically
incapacitated because a person who is unable to distinguish between fantasy and reality would similarly be unable to
comprehend the legal nature of the marital bond, much less its psychic meaning, and the corresponding obligations
attached to marriage

(b) JURIDICAL ANTECEDENCE - the incapacity must be rooted in the history of the party antedating the marriage, although
the overt manifestations may emerge only after the marriage. The incapacity must be proven to be existing at the time
of the marriage. The evidence must show that the illness was existing when the parties exchange their " I do's". The manifes
tation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or
prior thereto.

© INCURABLE - the incapacity must be incurable or, even if it were otherwise, the cure would be beyond the means of the party
involved. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be
absolute or even relative only in regards to the other spouse, not necessarily absolutely against everyone of the same sex.
Futhermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related
to marriage., like the exercise of profession or employment in a job.
> the incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required
in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may
emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means
of the parrty involved

See cases of SANTOS v. CA; REPUBLIC OF THE PHILS v. CA AND MOLINA; TORING v. TORING; BARCELONA v. CA

EVIDENTIARY REQUIREMENTS
(a) Burden of proof - the burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be
resolved in favor of the existence and continuation of the marriage and against its dissollution and nullity. This is rooted in
the fact that both our Constituiton and our laws cherish the validity of marriage and unity of the family. But while the plaintiff
carried the burden to prove the nullity of the marriage, the respondent, as the defendant spouse, could establish the psycholo-
gical of his/her husband because he/she raised the matter in his/her answer. The courts are justified in declaring a marriage
null and void under Art 36 of the FC regardless of whether it is the petitioner or the respondent who imputes the psychological
incapacity to the other as longa s the imputation is fully substantiated with proof.

(b) Need for expert opinion - the presentation of an expert witness to prove psychological incapacity has its origin in MOLINA
One of the guidelines set forth therein states:
the root cause of psychological incapacity must be (a) medically and clinically identified ; (b) alleged in the complaint;
© sufficiently proven by experts, and; (d) clearly explained in the decision

© No award of Moral damages in pyschological incapacity -

DISTINGUISH FORM DIVORCE AND LEGAL SEPARATION

> Art 36 of the FC must not be confused with a divorce law that cuts the marital bond at the time the causes therefore manifest
themselves
> Art 36 refers to a serious psychological illness afflicting a party even before the celebration of the marriage; it is a malady so
grave and so permanent as to deprive one of awareness of the duties and responsibilites of the matrimonial bond is aboubnt to
assume
> Art 36 of the FC does not really dissolve a marriage; it is simply recognizes that there never was any marriage in the first place
because the affliction already then existing was so grave and permanent as to deprive the afflicted party of awareness of the
duties and responsibilities of the matrimonial bond he or she was to assume or had assumed. Hence, the marriage is void
ab initio

In DIVORCE, all the requisites of a VALID MARRIAGE are PRESENT. The authorized causes of grounds for the termination of the
marital bond occur only after the celebration of the marriage. Similarly, in LEGAL SEPARATION, the marriage is VALID and
the grounds for legal separation occur only after the celebration of the marriage. In legal separation, however, the marital
bond is not broken.

(d) Not subject to prescription - when the FC took effect on Aug 3, 1988, Art 39 thereof reads as follows:
"Art 39. The action of defense for the declaration of absolute nullity of a marriage shall not prescribe.
However, in the case of marriages celebrated before the effectivity of this Code and failing under Art 36
such aciton or defense shall prescribe in ten years after this Code shall have taken effect"

In 1998, Congress enacted RA No. 8533 fo the purpose of removing the prescriptive period for the filling of a petition for
declaration of nullity of marriage based on Art 36 of the FC. RA No. 8533 amended Art 39 of the FC, to read as follows:
"Art 39. The action or defense for the declaration of absolute nullity of a marriage shalll not prescribe"
(as amended by RA No.8533)

ARTICLE 37. MARRIAGES BETWEEN THE FOLLOWING ARE INCESTUOUS AND VOID FROM THE BEGINNING, WHETHER
RELATIONSHIP BETWEEN PARTIES BE LEGITIMATE OF ILLEGITIMATE:
(1) Between ascendants and descendants of any degree; and
> Incestuous marriages are void from the beginning even if the marriage is solemnized abroad in accordance with the laws
in force in the country where they are solemnized, and valid there as such, such incestuous marriage is not recognized as
valid in the Philippines
> a series of degrees form a line, which may be either direct or collateral. A direct line is that constituted by the series of
degrees among ascendants and descendants. In counting the degrees in the direct line, ascent is made to the common
ancestor. Thus, the child is one degree removed from the parent, two from the grandparent, and three form the great grand
parent. Under FC, marriages between ascendants and descendants of any degree are incestuous, hence void,, whether
the relationship between then is legitimate or illegitimate

(2) Between brothers and sisters, whether full of half blood

> full blood relationship is that existing between persons who have the same father and same mother. Halfblood relationship
is that existing between persons who have the same father but not the same mother or the same mother but not the same
father

ARTICLE 38. THE FOLLOWING MARRIAGE SHALL BE VOID FROM THE BEGINNING FOR REASONS OF PUBLIC POLICY
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree
> a collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but
who come form a common ancestor
The ff marriage are void undert Art 38(1)
(1) between uncle and niece
(2) between aunt and nephew
(3) between first cousins. Note that while brothers and sisters are collateral relatives within the second civil degree, marriages
between them are not void by reason of public policy under Art 38(1) but void for being incestuous under Art 37(2)

(2) Between step-parents and step-children

> they are relatives by affinity - a relation formed by reason of marriage
> prior to the efffectivity of the FC, step-brothers and step-sisters are prohibited from marrying each other. This prohibition,
however, was eliminated under the FC since they are not related at all, either by blood or by affinity. Consequently, marriages
between step-brothers and step-sisters are now valid

(3) Between parents-in-law and children-in-law

> they are relatives by affinity. It is scandalous for parents-in-law to marry their children-in-law because it is more in keeping
with the Philippine customs and traditions that parents-in-law treat children-in-law like their own children and vice-versa

(4) Between adopting parent and adopted child

> under the law, the adopted child is considered the legitimate son or daughter of the adopter for all intents and purposes

(5) Between the surviving spouse of adopting parent and the adopted child
> For purpose of marriage, the law makes an express declaration that the adopted child cannot marry the surviving spouse of
the adopter, although the latter is not, by law, related to the former

(6) Between the surviving spouse of the adopted child and the adopter
> the relationship created by adoption is exclusive between the adopter and the adopted and does not extend to the relatives
of either. The FC, however, expressly declares as void the marriage between the surviving spouse of the adopted child and the
adopter. This is another situation where the law expressly extends the relationship created by adoption beyond the adopter
and the adopted child

(7) Between the adopted child and legitimate child of the adopter
> marriages between an adopted child and a legitimate child of the adopter are considered void ab initio by reason of public policy
Note, however, that the adopted child is prohibited from marrying only the "legitimate child" of the adopting parent. The prohibition
does not extend to the adopter's illegitimate children. This being the case, the marriage between an adopted child and an illegitimate
child of the adopter is a valid marriage

(8) Between the adopted children of the same adopter

> are likewise declared void by reason of public policy. Thus, as far as the ADOPTED CHILD is concerned, he or she is prohibited from marrying
the following: (1) adopter; (2) the surviving spouse of the adopter; (3) the legitimate child of the adoter; (4) the other adopted children of
the same adopter. The ADOPTER, on the other hand, is prohibited form marrying the following: (1) the adoted child; (2) the surviving spouse
fo the adopted child

(9) Between parties where one, with the intention to marry the other, killed the other person's spouse, or his or her own spouse
> compare with counterpart provision under CC, the new law no longer requires a prior criminal conviction for the killing. Note that under
Art 80 (6) of the CC,, it is required that the author of the killing must "have been found guilty of the killing" This requirement was deliberately
deleted under the new law. This being the case, a prior criminal conviction for the killing is no longer necessary to render the marriage void
under the FC. What has been emphasized under the new law is that the killing, whether perpetrated by the spouse or by another person,
must be animated primarily by the intention or desire to do away with the victim, who is an obstacle to a contemplated marriage, for the
purpose of contracting a marriage with the surviving spouse, the marriage will be void ab initio even if the surviving spouse is not aware
of such plan

ARTICLE 39. THE ACTION OR DEFENSE FOR THE DECLARATION ON ABSOLUTE NULLITY OF A MARRIAGE SHALL NOT PRESCRIBE (As amended by
RA No. 8533)
> the rule is now ABSOLUTE that an action or defense based on the absolute nullity of the marriage is IMPRESCRIPTIBLE. In fact VOID marriages can be
questioned even AFTER THE DEATH of either party

If A.M No. 02-11-10-SC Applies

> the rule is that a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or wife, but the term "husband or wife"
also refers to a spouse of the subsisting marriage questioning the validity of the subsequent marriage on the ground of bigamy.
> the rule futher states that if the petition is filed, the case shall be close and terminated upon the death of eighter parties at any stage of the proceeding
prior to entry of judgement. Hence, it appears that under A.M. No. 02-11-10-SC, a direct action questioning the validity of the marriage can only be
maintained during the lifetime of both spouses
> while A.M No. 02-11-10-SC declares that a petition for declaration of absolute nullity of void marriage may be solely filed by husband and wife, it does
not mean that the compulsory or intestate heirs are already without any recourse under the law. They can still protect their successional right, for, as stated
in the Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional
Orders, compulsory or intestate heirs can still question the validity of the marriage of the spouse, not in a proceeding for declaration of nullity, but UPON
THE DEATH OF THE SPOUSE IN A PROCEEDING FOR THE SETTLEMENT of the ESTATE of the deceased spouse filed in the regular court

If A.M No. 02-11-10-SC Does not Applies

> does not apply to: (1) nullity of marriage cases commenced before the effectivity of A.M. No. 02-11-10-SC, even if marriage was celebrated during the
effectivity of the FC; (2) marriages celebrated during the effectivity of the Civil Code
> petition to declare nullity of marriage, like any other actions, must be prosecutd or defended in the name of the real party-in-interest and must be based
on a cause of action. One having no material interest to protect cannot invoke the jurisdiction of the court as plaintifff in an action
> when plaintiff is not the real party-in-interest,, the case is dismissible on the ground of lack of cause of action. Thus, in Ninal, the Court held that the
children have the personality to file the petition to declare the nullity of marriage of their deceased father to their step-mother as it affects their
successional rights. In Carlos v. Sandoval, and Ablaza v. Republic, the Court likewise recognized the right of the heirs of the deceased spouse to bring a
nullity of marriage case against the surviving spouse for marriages celebrated under the regime of the Civil Code.

DIRECT ACTION AND COLLATERAL ATTACK

> a direct action to question the validity of a void marriage is done through the filing of petition for declaration of its absolute nullity. With the advent of
A.M. No. 02-11-10-SC, it appears that the court is emphasizing on the necessity of a direct action in cases where the validit of a void marriage covered by
the said RULE is put in question.
> a direct action is necessary to prevent circumvention of the substantive and procedural safeguards of marriage under the FC, A.M No. 02-11-10-SC and
other related laws. Among safeguards are the requirement of proving the limited grounds for the dissolution of marriage, support pendente lite of the
spouses and children, the liquidation, partition and distribution of the properties of the spouses, and the investigation of the public prosecutor to determine
collusion
> a direct action for declaration of nullity or annulment off marriage is also necessary to prevent circumvention of the jurisdiction of the Family Courts under
the Family Courts Act of 1997 (RA No. 8369)

(a) Direct action after death of one of the spouses

> for marriages covered by A.M. No. 02-11-10-SC, courts are directed to order the closure and termination of the petition in case a party dies at any stage of
the proceeding before the entry of judgment. Thus, a direct action is no longer allowed for marriages covered by A.M. No. 02-11-10-SC upon the death of one
of the spouses. However, the heirs of the deceased spouse may still collaterally attack the marriage by raising it as an issue in a proceeding for the settlement
of the estate of the deceased spouse.
For marriages that were solemnized during the regime of the Civil Code, the cases Ninal, Carlos and Ablaza are authorities confirming the right of the
heirs fo a deceased spouse to bring a nullity of marriage case against the surviving spouse, in addition to their right to raise and said issue collaterally
in a proceeding for the settlement of the estate of the deceased spouse

(b) Collateral attack

> the validity of a void marriage may be collaterally attack. This is the rule. Thus, in Ninal v. Badayog it was held:
"However, other than for purpose of remarriage, no judicial action is necessary to declare the marriage an absolute nullity. For other purposes, such
as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal
 case that matter, the court may pass upon the validity of marriage even in a suit not directly instituted to question the same as long as it is essential
to the determination of the case. This is without prejudice to any issue that may arise in the case. When such need arises, a final judgment of
declaration of nullity is necessary even if the purpose is other than to remarry. The clause on the basis of a final judgement declaring such previous
marriage void in Art 40 of the FC connotes that such final judgement need not to obtained only for the purpose of remarriage

DECLARATION OF NULLITY OF MARRIAGE AND RULE 108

>

ARTICLE 40. THE ABSOLUTE NULLITY OF A PREVIOUS MARRIAGE MAY BE INVOKED FOR PURPOSE OF REMARRIAGE ON THE BASIS SOLELY OF A FINAL
JUDGEMENT DECLARING SUCH PREVIOUS MARRIAGE VOID

NEED FOR JUDICIAL DECLARATION OF NULLITY OF A VOID MARRIAGE

> the Civil Code contains no express provision that a judicial declaration of nullity of a void marriage is necessary. Jurisprudence prior to the effectivity of the FC on
the matter, however, appears to be conflicting
Originally in PEOPLE v. MENDOZA and PEOPLE v. ARAGON, the SC held that no judicial decree is necessary to establishe the nullity of a void marriage. Both cases
involved the same factual milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death of the first wufe, accused
contracted a third marriage. The second wife initiated a complaint for bigamy. The court acquitted the accused on the ground that the second marriage is void,
having been contracted during the exsistence of the first marriage. The court held that there is no need for a judicial declaration that the said second marriage
is void. Since the second marriage is void and the first one terminated by the death of his wife, there is no two subsisting valid marriages. Hence, there can be no
bigamy. Justice Alex Reyes dissented in both caes stating that:
"Though the logician may say that where the former marriage was void there would be nothing to dissolve, still it is not for the spouses to judge whether
that marriage was void or not. That jugement is reserved to the courts"

In WIEGEL v. SEMPIO-DY, the Court reverted to the CONSUEGRA case and held that there is a need for a judicial declaration of nullity of a void marriage. In Wiegel
Lilia married Maxion in 1972. In 1978, sher remarried another man,, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriag
to Lilia as void on the ground of her previous valid marriage. The Court, expressly replied to CONSUEGRA, concluded that:
"There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then suc
marriage though void still needs according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents and purposes
she would still be regarded as a married woman at the time she conracted her marriage with respondent Karl Henz Wiegel; accordingly, the marriage of
 petitioner and respondent would be regarded VOID under the law"

ARTICLE 40, EXPLAINED

> under Art 40 fo the FC, the absolute nullity of prevous marriage may be invoked for purpose of remarriage on the basis soley of a final judgment declaring such
prevous marriage void. Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purpose of contracting a second marriage, the sole
basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgement declaring the previous marriage void.
> for other purposes such as but not limited to determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime
or a criminal case for that matter, the court may pass upon the validity of marriage even in suit not directly instituted to question the same so long as it is essential
to the determination of the case
> for purpose of remarriage, however, the only legally acceptable basis for declaring a previous marriage an absolute nullity is a final judgment declaring the
previous marriage void

SUBSEQUENT MARRIAGE WITHOUT JUDICIAL DECLARATION OF NULLITY OF PREVIOUS MARRIAGE, VOID AB INITIO
> a marriage though void still needs a judicial declaration of such fact before any party thereto can marry again; otherwise, the second marriage will also be void
As amended by

riages can be

sband or wife"

the proceeding

d wife, it does
ght, for, as stated
and Provisional
llity, but UPON

ed during the

d must be based
held that the

use to bring a

h the advent of
age covered by

-11-10-SC and
nte lite of the
utor to determine

mily Courts under

ies at any stage of

pon the death of one
g for the settlement

rming the right of the

said issue collaterally

other purposes, such

regime, or a criminal
ong as it is essential
l judgment of
aring such previous

S SOLELY OF A FINAL

he effectivity of the FC on

id marriage. Both cases

e first wufe, accused
cond marriage is void,
aid second marriage
Hence, there can be no

pouses to judge whether

void marriage. In Wiegel,

ourt to declare his marriage

d each other, for then such a

ents and purposes
rdingly, the marriage of
udgment declaring such
econd marriage, the sole

tion of property regime

so long as it is essential

ment declaring the

rriage will also be void

VOIDABLE MARRIAGES

ARTICLE 45. A MARRIAGE MAY BE ANNULLED FOR ANY OF THE FOLLOWING CAUSES, EXISTING AT THE TIM
(1) That the party on whose behalf it is sought to have the marriage annulled was eighteen years of age or over but
and the marriage was solemnized without the consent of the parents, guardians or person having substitute parenta
party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both
as husband and wife
> in general the marriage is voidable if there is a defect in consent that was given. A voidable marriage is considere
all its civil effects until it is set aside by final judgement of a competent court in an action of annulment. A marriage
presupposes that it subsists but later ceases to have legal effects when it is terminated through a court action. While
the special contract as if it had never been entered into, the law makes express provisions to prevent the effects of th
being totally wiped out.
XISTING AT THE TIME OF THE MARRIAGE
ars of age or over but below twenty one,
ving substitute parental authority ovet the
with the other and both lived together

marriage is considered valid and produces

nnulment. A marriage that is annuled
h a court action. While annulment dissolves
prevent the effects of the marriage from