Persons - Void and Voidable

CHAPTER III - VOID AND VOIDABLE MARRIAGES (insert article 35 here) A void marriage is that which is not valid from inception. Absence of any of the essential of formal requirements for a valid marriage as provided for in Articles 2 and 3 makes a marriage void. Articles 35-38, 40-41, 44, and 53 in relation to Article 52 of the Family Code enumerate marriages which are void. VOID AND VOIDABLE MARRIAGE Voidable Valid until otherwise declared by courts; May be ratified or confirmed by free cohabitation or prescription Cannot be assailed collaterally except in direct proceeding Can be assailed only during the lifetime of the parties and not after the death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid; Action prescribes Only parties to a voidable marriage can assail it Property regime governing voidable marriages is generally conjugal partnership (or absolute community) Children conceived before its annulment are legitimate

Void Marriage is considered as having never to have taken place and cannot be the source of rights; Cannot be cured Can be attacked collaterally Can be questioned even after the death of either party, or both; The action or defense for nullity is imprescriptible

Any proper interested party may attack a void marriage Property regime is co-ownership

Void marriages have no legal effect except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, and its effect on the children born to such void marriages as provided in Art. 50 in relation to Arts. 43 and 44 as well as Arts. 51, 53 and 54 of the Family Code.

BAD FAITH OR GOOD FAITH IN VOID MARRIAGES GENERAL RULE: Good faith and bad faith are immaterial in determining whether or not a marriage is null and void. The equitable doctrine of unclean hands where the court should not grant relief to the wrongdoer is not a rule as applied in nullity actions because it is merely judge-made and has no statutory basis. Nonetheless, the party who knew that he or she was entering a void marriage before its solemnization may be held liable for damages by the other contracting party under the provisions on Human Relations in the Civil Code, esp. Arts. 19-21thereof.

EXCEPTIONS: In the following cases, the good faith even of only one of the contracting parties shall make the marriage valid; if both are in bad faith, marriage is void. 1. Art. 35(2) states that if either of the contracting parties is in good faith in believing that a solemnizing officer has authority to solemnize a marriage though he or she actually has none, the marriage will be considered valid. 2. Art. 41, with regard to a person whose spouse disappears for four years or two years, in the proper cases, the present spouse may validly marry again if he or she: a. has a well-founded belief that his or her spouse is dead; b. procures a judicial declaration of presumptive death; and c. at the time of the subsequent marriage ceremony, is in good faith together with the subsequent spouse BAD FAITH AS AFFECTING PROPERTY DISPOSITION In determining the disposition of properties in a void marriage, good faith and bad faith of one of the parties at the time of the marriage ceremony are material. GENERAL RULE: In a void marriage, the property regime is one of co-ownership. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited:   

in favor of their common children; in case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants; in the absence of descendants, such share shall belong to the innocent party

EXCEPTION: If the subsequent void marriage is due to the failure of a party to get a prior judicial declaration of nullity of the previous void marriage, upon termination of the marriage, the absolute community of property or the conjugal partnership 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 shall be forfeited in favor of:   

the common children; if there are none, the children of the guilty spouse by a previous marriage; in default of children, the innocent spouse

COLLATERAL AND DIRECT ATTACK GENERAL RULE: A void marriage can be collaterally attacked, meaning, the nullity of a marriage can be asserted even if it is not the main or principal issue of a case and that no previous judicial declaration of nullity is required by law with respect to any other matter where the issue of the voidness of a marriage is pertinent or material, either directly or indirectly.

EXCEPTION: There are three cases where a direct attack, not a collateral attack, on the nullity of marriage must first be undertaken: 1. If a person has a void marriage and wants to remarry, he or she must first file a civil case precisely to obtain a judicial declaration of nullity of the first marriage before he or she could remarry; 2. For the purposes other than remarriage, i.e. determination of heirship, legitimacy or illegitimacy of the child, settlement of estate, dissolution of property regime, or a criminal case for that matter; 3. If a donor wants to revoke a donation propter nuptias (in consideration of marriage) given to one or both of the married couple on the ground that the marriage is void, it is important that a judicial declaration of nullity of the marriage must first be obtained BELOW EIGHTEEN YEARS OF AGE An individual below eighteen years of age is declared by law as not possessing the legal capacity to contract marriage. The consent of the parents is immaterial. Neither can a subsequent parental consent ratify a void marriage. The legal capacity for both male and female is 18 years of age. NON-AUTHORITY OF SOLEMNIZER If a person is not among those enumerated under Article 7, or if he or she is among those enumerated but does not comply with the specific requirements for his or her authority to vest on him or her as also provided by law, or he or she is not the mayor or, at least, a person empowered by law to act as mayor when the latter cannot perform his or her duties, he or she has no authority to solemnize a marriage. GOOD FAITH MARRIAGE If the marriage were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so when in fact he or she has none, then the marriage shall be considered valid. Good faith is always presumed until the contrary is shown. NO MARRIAGE LICENSE A marriage license is a formal requisite the absence of which makes a marriage void. Exceptions, however, are provided for in Arts. 27-34 of the Family Code. BYGAMOUS OR POLYGAMOUS MARRIAGE Except those allowed under special laws such as the Muslim Code or under Art 41 of the Family Code, the law prohibits a married man or woman from contracting another bond of union as long as the consort is alive. NOTE: In bigamous marriage, the first marriage must have been valid. If the first marriage is in itself void and a subsequent marriage is contracted without a prior judicial declaration of the nullity of

the first marriage, the subsequent marriage is also void because it violates Article 40 in relation to Articles 52 and 53 of the Family Code. A judicial declaration of the nullity must first be obtained before any of the contracting parties is to remarry, such judicial declaration of nullity must be recorded with the local civil registrar also before any subsequent marriage. MISTAKE OF IDENTITY Mistake in identity is a ground for the nullity of marriage. There is complete absence of consent, thereby rendering the marriage void ab initio. The contracting party absolutely did not intend to marry the other, as the same is not the person he or she actually knew before the marriage. Mistake in identity as a ground for nullity covers only those situations which there has been a mistake on the part of the party seeking the nullification of marriage as to the actual physical identity of the other party and does not include mistake in the name, the character of the person, or in his or her attributes, his or her age, religion, social standing, pedigree, pecuniary means, temperaments, acquirements, condition in life or previous habits. VOID UNDER ARTICLE 53 For persons whose marriages have been annulled or declared null and void to be able to validly marry again, they must undertake the liquidation, partition, and distribution of their properties, if any, and, only in proper cases, the delivery of the children’s presumptive legitimes and thereafter all these requirements, including the decree of annulment of nullity, should be recorded in the appropriate civil registry and registries of property. Non-compliance with these requirements will render any subsequent marriage void. 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. PSYCHOLOGICAL INCAPACITY The law does not define what psychological incapacity is and therefore, the determination is left solely with the courts on a case-to-case basis. It should not be equated with insanity or a total mental inability to function in all aspects of human life. The malady or mental disposition of one or both of the spouses must be such as to seriously and effectively prevent them from having a functional and normal marital life clearly conducive to bringing up a healthy personal inter-marital relationship within the family which is necessary for its growth. It must be a psychological illness afflicting a party even before the celebration of the marriage. It involves a senseless, protracted, and constant refusal to comply with the essential marital obligations by one or both of the spouses although he, she or they are physically capable of performing such obligations. It is considered a ground to nullify a marriage. Such a marriage cannot be cured by cohabitation considering that it is void, and therefore ratification cannot apply. Requisites of Psychological Incapacity:

1. Gravity – Must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in a marriage; 2. Juridical Antecedence – Must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and 3. Incurability – Must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved PROVING PSYCHOLOGICAL INCAPACITY Psychological incapacity is psychosomatic and deals with a state of mind and thus, can only be proven by indicators or external manifestations of the person claimed to be psychologically incapacitated, i.e. : 

 

Failure to comply with the rights, duties and liabilities of parents relative to their parental authority over their children is good indicator of psychological incapacity to perform the essential marital obligation. Procreation is likewise an essential obligation; the fear of a wife to engage in sexual intercourse is an indicator of psychological incapacity. Unreasonable attachment by the spouse to his or her family (i.e. his/her mother, father) or to the spouse’s friends or “barkada” such that the importance and devotion which should be given to his or her own spouse and children are subordinated to the said attachment is also a good indicator of psychological incapacity.

Essential Elements: 1. 2. 3. 4. 5. 6. 7. 8.

Mental condition Applies to a person who is martially contracted to another Marriage entered in to with volition Failure to perform or comply with the essential obligations in marriage Failure to perform is chronic Cause is psychological in nature Cause is serious, with juridical antecedence, and must be incurable Incapacity results in the failure of the marriage

JURISPRUDENTIAL GUIDELINES (Molina Doctrine) In Republic v. Molina, the Supreme Court enumerated the guidelines invoking and proving psychological incapacity under Article 36. They are as follows: 1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2. The root cause of the psychological incapacity must be: a. Medically or clinically identified b. Alleged in the complaint c. Sufficiently proven by experts, and

3. 4. 5. 6.

7. 8.

d. Clearly explained in the decision The incapacity must be proven to be existing at “the time of the celebration” of the marriage. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. The essential marital obligations must be those embraced by Article 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state.

DAMAGES Petitioner is not entitled to moral damages based on declaration of psychological incapacity because the award of moral damages should be predicated, not on the mere act of entering marriage, but on specific evidence that it was deliberately and with malice by a party who had known of his or her disability and yet wilfully concealed the same. Article 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: 1) Between ascendants and descendants of any degree; and 2) Between brothers and sisters, whether of the full or half-blood. REASONS FOR PROHIBITION OF INCESTUOUS MARRIAGE 1. They are abhorrent to the nature, not only of civilized men, but of barbarous and semi-civilized peoples; 2. Tend to the confusion of rights and duties incident to family relations; 3. Science and experience have established beyond cavil that such intermarriages very often result in deficient and degenerate offsprings; 4. Social prohibitions against incest promote the solidarity of the nuclear family. Article 38. The following REASONS FOR THE PROHIBITION OF VOID MARRIAGES Void marriages are against public policy. It is the policy of the State to foster a normal, peaceful, and wholesome integral nuclear family unit which would constitute the very foundation of society. COLLATERAL BLOOD RELATIVES BY CONSANGUNUITY

Marriage between collateral blood relatives up to the fourth civil degree may disturb the policy of the state as it may likely result though not of the same gravity, in the dangers and confusion attendant in incestuous marriages under Article 37. Relationship by consanguinity is in itself not capable of dissolution. Hence, the death of a common ascendant, a grandfather for example, does not severe the blood relationship of his or first cousin. COLLATERAL HALF-BLOOD RELATIVES BY CONSAGUINITY The law does not provide that marriages between collateral blood relatives by the half-blood consanguinity are prohibited. RELATIONSHIP BY AFFINITY Step-parents and step-children as well as parents-in-law and children-in-law are related by affinity. The doctrine of affinity grew out of the canonical maxim that marriage makes husband and wife one. The husband has the relation, by affinity, to his wife’s blood relatives as she has to them by consanguinity and vice versa. Step-brothers and step-sisters can, however, marry each other as this relationship by affinity is not included in the prohibition. EFFECT OF TERMINATION OF MARRIAGE ON THE “AFFINITY PROHIBITION” In the event that the marriage is annulled or nullified in accordance with law, there can be no question that the relationship by affinity between step-parents and step-children as well as parents-inlaw and children-in-law is terminated. In case a marriage is terminated by the death of one of the spouses, if the spouses have no living issues or children, the relationship by affinity is dissolved; if there are living issues or children of the marriage, the relationship is continued, “since the relationship of affinity was continued through the medium of the issue of the marriage.” ADOPTIVE REALTIONSHIP The relationship created in adoption is merely limited to one of the parent and child. The void marriages in an adoptive relationship are specifically and expressly limited by law to those mentioned in Articles 37. The adopter cannot marry the adopted and the surviving spouse of the adopted. The adopted cannot marry any of the following:    

The adopter The surviving spouse of the adopter The legitimate child of the adopter The other adopted children of the adopter

An adopted can validly marry the following: the parents, illegitimate child, and other relatives, whether by consanguinity of affinity, of the adopter. On the other hand, the adopter can validly marry

the legitimate, illegitimate, or adopted child, the natural parent, and other relatives whether by consanguinity or affinity, of the adopted. Article 38 qualifies the spouse of either the adopted or the adopter as a surviving spouse, which can only imply that the marriage between the surviving spouse of either the adopted and the adopter has been terminated by the death. Hence, if the marriage of the adopter and his or her spouse is judicially nullified or annulled and barring any other ground to make the marriage void, the adopted can validly marry the previous spouse of the adopter because such spouse is not a surviving spouse as contemplated by law but a former spouse, who after the finality of the nullity or annulment decree, has become complete stranger to the adopter. Likewise, the adopter can marry the spouse of the adopted and his or her spouse is severed by a final judicial nullity or annulment decree. INTENTIONAL KILLING OF SPOUSE The situation described therein is highly criminal, involving as it does, grave moral turpitude, destructive not only of the family but the whole society itself. It must be noted that, in killing his or her spouse, the guilty party must be animated by an intention to marry another person. No prior criminal conviction by the court for the killing is required by law. It can be a unilateral intention and need not be shared by the other spouse so that even the unknowing party will be affected by the void character of the marriage. The reasons for a spouse killing his or her own spouse to marry another and thus making the subsequent marriage void likewise apply to a person who kills the spouse of another to marry the latter. Article 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. PRESCRIPTIVE PERIOD There is no prescriptive period to file an action for the declaration of nullity of a marriage or to invoke such nullity as a defense, whether in a direct or collateral manner. Judicial decree of nullity merely declares or confirms the voidness, non-existence, or incipient invalidity of a marriage. All void marriages under the Family Code do not prescribe. PARTIES Only the husband or the wife can file a court case declaring the marriage void. Either of the parties in a void marriage can file a nullity case even though such party is a wrongdoer. However, a void marriage can still be collaterally attacked by any interested party in any proceeding where the determination of the validity of marriage is necessary to give rise to certain rights or negate certain rights, i.e. in an intestate proceeding where the certain heirs can attack the validity of the marriage of the deceased parent so that the children of the deceased parent can be considered illegitimate for the purpose of inheritance.

Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. JUDICIAL DECLARATION OF NULLITY A judicial declaration of nullity of the previous marriage must be obtained and registered, and the liquidation, partition, and distribution of the properties, as well as the delivery of presumptive legitime are essential to make the subsequent marriage valid. ARTICLE 40 AND CRIMINAL BYGAMY The crime of bigamy under our law is committed by any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceeding. It contemplates a situation where the first marriage is not void but completely valid or at least annullable. If the second marriage is void because of legal grounds other than bigamy, there can be no crime of bigamy. Good faith in contracting the second marriage is a defense in the crime of bigamy. (Insert Articles 41 and 42 here) BIGAMOUS MARRIAGE GENERAL RULE: A marriage contracted during the lifetime of the first spouse is null and void. For as long as the first void marriage is not judicially declared void, any subsequent marriage is also bigamous. EXCEPTION: A “bigamous” marriage may be considered valid if, prior to the subsequent marriage and without prejudice to the effect of the reappearance of the other spouse, the present spouse obtains a judicial declaration of presumptive death via a summary proceeding in a court of competent jurisdiction. Before such declaration can be obtained, it must be shown that the prior spouse had been absent for four consecutive years (2 years in case of disappearance where there is danger of death under the circumstances set forth in Article 391 of the Civil Code) and the present spouse had a well founded belief that the absent spouse is dead. TERMINATION OF THE SUBSEQUENT MARRIAGE Unless there is a judgment annulling the previous marriage or declaring it void ab initio, automatic termination of the subsequent marriage can be obtained by the recording of the affidavit of reappearance of the absent spouse in the civil registry of the residence of the parties to the subsequent marriage pursuant to Article 42. This is the only instance where a marriage is terminated extra-judicially. In case the reappearance is disputed, the same shall be subject to judicial determination.

However, if the spouse reappeared and he or she or any interested party does not file an affidavit or sworn statement with the civil register of the fact or reappearance, there will technically exist two valid marriages, making the subsequent a valid “bigamous” marriage. LIQUIDATION OF THE PROPERTIES OF THE FIRST MARRIAGE If the marriage to be liquidated is valid, the properties of the first marriage should be liquidated using by analogy the provisions of Articles 103 and 130 of the Family Code. If there is no liquidation and the present spouse immediately remarries, the property regime that will apply in the subsequent marriage will be the complete separation of property. If there were a liquidation, the parties may agree in the settlement as to what type of property regime will govern their marital relationship and, in the absence of such marriage settlement or when the latter is void, the spouses shall be governed by the absolute community of property regime. If the marriage is void, then the rules of co-ownership will apply and the properties will be liquidated in accordance with the said rules. WELL-FOUNDED BELIEF OF DEATH Under Article 41 of the Family Code, the time required for the presumption to arise has been shortened to 4 years; however, there is a need for a judicial declaration of presumptive death to enable the spouse to remarry. The Family Code prescribes a “well-founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted. JUDICIAL DECLARATION OF PRESUMPTIVE DEATH In Article 41 of the Family Code it is provided that a judicial declaration of presumptive death is mandatorily required by law to be obtained by the present spouse only for the purpose of capacitating the present spouse to remarry. For the purpose of remarriage, the period of absence to be able to presume an absentee dead has been shortened to a normal period of 4 consecutive years and 2 consecutive years, if the disappearance occurred under circumstances described in Article 391 where the danger of death is high. Such judicial declaration of presumptive death is the best evidence of the “well-founded belief” on the part of the present spouse that the absent spouse is dead. It immunizes the present spouse from being charged of bigamy, adultery or concubinage. SWORN STATEMENT OF REAPPEARANCE If the absent spouse reappears, he or she can easily terminate the subsequent marriage by executing a sworn statement or affidavit of the fact and circumstance of such reappearance and recording the same in the civil registry of the residence of the parties to the subsequent marriage, with due notice to them. Also, any interested party may file this sworn statement of reappearance (i.e. their parents, their children, the present spouse and even the subsequent spouse of the present spouse). The presumption of death will subsist upon the appearance of the absentee prior to the filing of the sworn statement of reappearance; if the reappearance is authentic, the judicial declaration of presumptive death is immediately rendered functus offio. If the reappearing spouse or any interested party does not file any sworn statement of reappearance, the subsequent marriage remains validly

subsisting, while the first marriage is likewise considered subsisting not having been judicially nullified or annulled. CRIMINAL LIABILITY Article 349 of the Revised Penal Code provides that the penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgement rendered in the proper proceeding. (insert Art. 43 and 44) STATUS OF CHILDREN Children conceived during the subsequent marriage contemplated in the Art. 41 in cases of presumptive death of one of the spouses and before termination of the same shall be considered legitimate, even if one of the contracting parties is in bad faith; because they have been conceived either inside a valid bigamous marriage or inside a valid marriage despite the non-observance of Articles 40, 52 and 53. EFFECT OF TERMINATION ON THE PROPERTY REGIME The property regime shall be dissolved and liquidated. If either of the spouse acted in bad faith, the guilty spouse shall not get his share in the net profits of the property regime, it shall be forfeited in favor the common children, the children by a previous marriage of the guilty spouse, or in favor of the innocent spouse. For the purpose of computing the net profits subject to forfeiture, the said profits shall be the 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. DONATIONS BY REASON OF MARRIAGE If both parties are in good faith, the donation by reason of marriage shall be valid even in the event that the subsequent marriage has been terminated. It shall also be valid even if the donor acted in bad faith in contracting the marriage. If either party, or both parties, acted in bad faith in contracting the marriage, the donation by reason of marriage ipso jure is terminated by operation of law. Moreover, a donation made between persons who are guilty of adultery or concubinage at the time of the donation is void. Where both parties are in bad faith, testamentary dispositions made by one in favor of the other are revoked by operation of law. DESIGNATION OS BENEFICIARY IN INSURANCE POLICY

The innocent spouse has the choice of revoking or maintaining as beneficiary in an insurance policy the other spouse who acted in bad faith. If the innocent spouse opts to revoke, he can do so even if the designation as beneficiary is irrevocable. DISQUALIFICATION AS TO INHERITANCE The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. If both parties in the subsequent marriage are in bad faith, such marriage is void and testamentary dispositions made by one in favor of the other are revoked by operation of law, and they cannot likewise inherit by intestate succession because no legal relation binds them. MARRIAGE CONTRACTED IN BAD FAITH If the subsequent marriage were contracted where only one of the parties, whether the present spouse or the new spouse, to the subsequent marriage was in bad faith, the said marriage is still valid. The marriage shall be considered void only if both spouses in the subsequent marriage are in bad faith. The good faith of the present spouse must be present up to the time of the celebration of the subsequent marriage.