Void and Voidable Marriages

Void and voidable marriages may be distinguished

necessity of a marriage license and shall remain valid even if

from each other in the following ways:

the ailing party subsequently survives. (Art. 27, Family Code) Marriage in inaccessible place

1. As to nature: A void marriage is inexistent from the time

If the residence of either party is so located that there is no

of its performance, whereas a voidable marriage is valid and

means of transportation to enable such party to appear

binding until it is annulled by a competent court.

personally before the local civil registrar, the marriage may

2. As to susceptibility of convalidation: A void marriage

be solemnized without necessity of a marriage license. (

is not

Duty of solemnizing officer in case of articulo mortis

susceptible of convalidation, whereas a voidable

marriage may be convalidated either by prescription or by

or remote places

cohabitation.

In the cases provided for in the two preceding articles, the

3. As

to

effect

void

solemnizing officer shall state in an affidavit executed before

are

the local civil registrar or any other person legally authorized

governed by the rules of co-ownership, whereas in a voidable

to administer oaths that the marriage was performed

marriage, the property relations are, as a general rule,

inarticulo mortis or that the residence of either party,

governed by therules on absolute community unless another

specifying the barrio orbarangay, is so located that there is

system is agreed upon in marriagesettlement.

no means of transportation to enable such party to appear

marriage, the property

4. As

to

upon

property:

relations

effect

In a

between the parties

upon children: In a

void

personally before the local civil registrar and that the officer

marriage, the children are considered illegitimate under Art.

took the necessary steps to ascertain the ages and

165 of the FC (subject to exceptions), whereas in a voidable

relationship of the contracting parties and the absence of

marriage, the children

legal impediment to the marriage. (Art. 29, FC)

conceived

before the decree

of

annulment are considered legitimate.

Affidavit to be sent to the civil registrar

5. As to how marriage may be impugned: The defect of

The original of the affidavit required in the last preceding

a void marriage may be attacked either directly or

article, together with the legible copy of the marriage

collaterally, whereas in a voidable marriage, a judicial

contract, shall be sent by the person solemnizing the

declaration is necessary.

marriage to the local civil registrar of the municipality where

6. As to who may impugn marriage: The validity of a

it was performed within the period of thirty days after

void marriage may be impugned by anyone who is directly

the performance of the marriage. (Art. 30, FC)

affected, whereas the validity of a voidable marriage can be

Marriage solemnized by ship captain or airplane

impugned only as a general rule by one of the contracting

pilot

parties.

A marriage in articulo mortis between passengers or crew

7. As to when marriage may impugned: A void

members may also be solemnized by a ship captain or by an

marriage may be impugned even after the death of one

airplane pilot not only while the ship is at sea or the plane

of the contracting parties, whereas a voidable marriage can

is in flight, but also during stopovers at ports of call.

no

Marriage solemnized by military commander

longer

be

impugned

after the

death

of one

of the contracting parties.

A military commander of a unit, who is a commissioned

8. As to necessity of judicial declaration: In a void

officer, shall likewise have authority to solemnize marriages

marriage, a judicial declaration is not necessary to establish

in articulo mortis between persons within the zone of

its invalidity but for purpose of remarriage, there must be a

military operation, whether members of the armed forces or

judicial declaration of nullity, wheres in a voidable marriage,

civilians. (Art. 32, FC)

a judicial declaration is not necessary. (Desiderio P. Jurado,

Marriage by Muslims or cultural communities

Civil LawReviewer, 2006 ed., pp. 81-82)

Marriages among Muslims or among members of the ethnic

Marriage in articulo mortis

cultural communities may be performed validly without the

In case either or both of the contracting parties are at the

necessity of marriage license, provided they are solemnized

point of death, the marriage may be solemnized without

in accordance with their customs, rites or practices.

Marriage by parties who have cohabited for 5 years

each other. The contracting parties shall state the foregoing

No license shall be necessary for the marriage of a man and a

facts in an affidavit before any person authorized by law to

woman who have lived together as husband and wife for at

administer oaths. The solemnizing officer shall also state

least five years and without any legal impediment to marry

under oath that he ascertained thequalifications of the

each other. The contracting parties shall state the foregoing

contracting parties and found no legal impediment to the

facts in an affidavit before any person authorized by law to

marriage.

administer oaths. The solemnizing officer shall also state

Requisites:

under oath that he ascertained thequalifications of the

In order that Art. 34 of the Family Code regarding legal

contracting parties are found no legal impediment to the

ratification of marital cohabitation may apply, the following

marriage. (Art. 34, FC)

requisites must concur:

A valid marriage license is a requisite of marriage under, the absence of which renders the marriage void ab initio. The Constitution considers marriage a an “inviolable social institution”, and is the foundation of family life which shall be protected by the State. This is why the Family Code considers marriage as “a special contract of permanent union” and case law considers it not just an adventure but a lifetime commitment.” (Niñal, et al. vs. Bayadog, G.R. No.

1. The man and woman must have been living together as husband and wife for at least five years before the marriage 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have

133778, March 14, 2000 [328 SCRA 122])

lived together for at least five years [and are without legal

However, there are several instances wherein a marriage

impediment to marry each other]; and

license is dispensed with, one of which is that provided in Article 34 of the Family Code, referring to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least five years before the

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. (Manzano vs. Judge Sanchez, A.M. No. MTJ-00-1329, March 8, 2001)

marriage. Rationale:

Reckoning of 5-year period

The rationale why no license is required in such case is to

This 5-year period should be the years immediately before

avoid exposing the parties to humiliation, shame and

the day of the marriage and it should be a period of

embarrassment

with

cohabitation characterized by exclusivity – meaning no third

thescandalous cohabitation of persons outside a valid

party was involved at any time within the 5 years and

marriage due to the publication of every applicant’s name for

continuity – that is unbroken. Otherwise, if that continuous

a marriage

themarriage

5-year cohabitation is computed without any distinction as to

license may discourage such persons from legitimizing their

whether the parties were capacitated to marry each other

status. To

during the entire five years, then the law would be

concomitant

license.

The publicity attending

preserve

peace

in

the

family,

avoid

the peeping and suspicious eye of public exposure and

sanctioning

contain the source of gossip arising from the publication of

have common law relationships and placing them on the

their names, the law deemed it wise to preserve their privacy

same footing with those who lived faithfully with their

and exempt them from that requirement. (Niñal, et al. vs.

spouse. It should be in the nature of a perfect union that is

Bayadog, ibid.)

valid under the law but rendered imperfect only by the

Art.

34

of

the

Family

Code

provides:

No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry

immorality

and

encouraging

parties

to

absence of the marriage contract. (Niñal, et al. vs. Bayadog, ibid.)