Void Marriages

What marriages are void?

The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized 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 solemnizing officer had the legal authority to do so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53. (Art. 35, FC)

(7) Those marriages contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage even if such incapacity becomes manifest only after its solemnization. (Art. 36, FC)

(8)  Incestuous marriages, whether the relationship between the parties be legitimate or illegitimate. (Art. 37, FC)

(9)  Those which are declared void because they are contrary to public policy. (Art. 38, FC)

Psychological incapacity

Art. 36. A marriage contracted by any party who, at the time of the 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 Executive Order 227)

What marriages are incestuous and void from the beginning?

Art. 37. Marriages between the following are incestuous and void from the beginning, whether 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.

What marriages are void for reasons of public policy?

Art. 38. The following marriages 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;

(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 an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

Does the action or defense for the declaration of absolute nullity of marriage prescribe?

Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe. (As amended by R.A. No. 8533)

When may the absolute nullity of a previous marriage be invoked?

Art. 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. 

Subsequent marriage terminated by recording of affidavit of reappearance 

Art. 41. A marriage contracted by any person during 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 has 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 reappearance of the absent spouse. 

How shall the subsequent marriage referred to in Art. 41 covering absent spouses be automatically terminated?

Art. 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. 

What are the effects of termination of the subsequent marriage referred to in Art. 42 of the FC covering absent spouses?

Art. 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;

(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 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.

What are the effects of termination of the subsequent marriage referred to in Art. 42 of the FC where both spouses acted in bad faith?

Art. 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.

What is the reason behind the rule that a void marriage must be declared void?

The reason behind the rule is to do away with continuing uncertainty on the status of the second marriage.

Under the FC, the following can nor marry:

1. Brother-in-law and sister-in-law

2. Stepbrother and stepsister

3. Guardian and ward

4. Adopted and illegitimate child of the adopter

5. Adopted son of the husband and adopted daughter of the wife

6. Parties who have been convicted of adultery or concubinage

Is a marriage between a father-in-law and his daughter-in-law or between a mother-in-law and her son-in-law valid? How about between an adopted son and an adopted daughter of the same adopting parent?

If the marriages were celebrated before the effectivity of the FC, both marriages are valid. Under the NCC, such marriages are neither void nor voidable. 

If the marriages were celebrated after the effectivity of the FC, both marriages are void for reasons of public policy. 

A was convited of killing B, husband of C. Can A get married to C?

It depends. If the killing was for the purpose of removing B as an obstacle to A's marriage to C, then the answer is no; if not, then the answer is yes.

(Desiderio P. Jurado, Civil Law Reviewer, 2006 ed., pp. 91-92)

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Voidable Marriages

Grounds for annulment of marriage (voidable marriage)

A marriage may be annulled for any of the following causes, existing at 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 cohabited 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 cohabited 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 cohabited 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 sexually-transmissible disease found to be serious and appears to be incurable. (Art. 45, Family Code)

What are the different circumstances or cases of fraud which will serve as a ground for the annulment of a marriage?

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 sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or 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. (Art. 46, FC)

In actions for annulment of a voidable marriage, who are the parties who may commence the action and within what period?

The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(1) For causes mentioned in 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 twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or 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 Articles 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 number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (Art. 47, FC)

Rules in actions for annulment or declaration of absolute nullity of marriage  

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. (Art. 48, FC)

Support and custody during pendency of cases 

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 to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (Art. 49, FC)

What issues shall be provided in the final judgment of annulment or declaration of nullity of marriage, unless previously adjudicated in a previous judicial proceeding?

Unless such matters had been adjudicated in previous judicial proceedings, the final judgment of annulment or declaration of nullity of marriage shall provide for the following issues:

1. The liquidation, partition and distribution of the properties of the spouses. In the proceedings for liquidation, all creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified and allowed to intervene to protect their interests.

2. The custody and support of the common children.

3. The delivery of presumptive legitimes of the common children. (Art. 50, FC)

How shall the conjugal dwelling and the lot on which it is situated be adjudicated in case the final judgment of annulment or declaration of nullity of marriage provide for the partition of the property of the spouses?

In the partition of the properties of the spouses, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with the provisions of Articles 102 and 129 of the FC

1. The conjugal dwelling shall be adjudicated to the spouse with whome majority of the common children should choose to remain. 

2. Children below 7 years are deemed to have chosen the mother, unless the court decides otherwise.

3. In case there is no majority of the common children, the court shall decide, taking into account the best interest of the children. (Art. 102 [6], Art. 129 [9], FC)

Delivery of presumptive legitimes 

In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (Art. 51, FC)

Registration of final judgment of annulment or declaration of absolute nullity 

The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (Art. 52, FC)

Effects of subsequent marriage without registration of final judgment 

Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. (Art. 53, FC)

Legitimacy of children of voidable or void marriages

Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. (Art. 54, FC)

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Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage

Can there be separation of property between the spouses during the marriage?

In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (Art. 134, FC)

System of complete separation of property

The system of complete separation of property shall govern the property relation of the spouses only in the following cases:

1. When it expressly provided for in the marriage settlements;

2. When it is so declared by the court;

3. When the surviving spouse contract a subsequent marriage without first liquidating the community or conjugal partnership property, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (Art. 103 par. 3, FC and Art 130 par. 3, FC)

Sufficient cause for judicial separation of property

Any of the following shall be considered sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (Art. 135, FC)

Steps in voluntary separation of property.

The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. 

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (Art. 136, FC)

Liquidation upon separation of property; support

Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.

During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (Art. 1374, FC)

Regime after dissolution

After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (Art. 138, FC)

Recording of requirements

The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (Art. 139, FC)

Protection to creditors

The separation of property shall not prejudice the rights previously acquired by creditors. (Art. 140, FC)

How and when may the spouses terminate the judicial separation of property? What is the effect of such termination?

The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances:

(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;

(3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration;

(4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other;

(5) When parental authority is judicially restored to the spouse previously deprived thereof;

(6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or

(7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted.

The revival of the former property regime shall be governed by Article 67. (Art. 141, FC)

Transfer of administration 

The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or

(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. (Art. 142, FC)

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Should the spouses, H and W, decide to separate their properties during the marriage, how could they validly perfect the separation of such properties?

Spouses H and W have to secure judicial approval. Said separation of property may either be voluntary (by agreement) or for sufficient cause. (Art. 134, FC)

H and W, after 10 years of unhappy marital life, signed a formal agreement whereby they shall divide, share and share alike, all their conjugal properties. State your opinion as to the legal effect of such agreement. 

The agreement is void. According to Art. 134 of the FC, "in the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. This principle declares as void and no effect every extrajudicial agreement, during marriage, for the dissolution of the conjugal partnership or the absolute community of property between husband and wife. 

What are the causes for judicial separation of property?

It depends.

1. If the judicial separation of property is voluntary, then mere agreement by both spouses will be sufficient.

2. If it is involuntary, any of the causes mentioned in Art. 135, FC shall be considered sufficient.

What are the effects of a decree of separation of property between the spouses?

Once the separation of property has been decreed:

1. The absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.

During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (Art. 137, FC)

2. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (Art. 138, FC) 

3. The rights previously acquired by creditors are not prejudiced. (Art. 140, FC) Also the spouses shall continue to be solidary liable with their separate properties to creditors (Art. 121, last sentence, FC)

4. Notwithstanding the separation of property between the spouses, the spouses shall continue to be jointly liable for the support of the children. (Art. 195 [3], FC). Likewise, the spouses shall continue to be mutually obliged to support each other unless a final judgment granting a petition for legal separation or for annulment of marriage or declaration of nullity of marriage has been obtained, in which case, the obligation of mutual support between the spouses ceases. (Arts. 195 and 198, FC)

How does an instance where the assumption of sole administration by either spouse of the absolute community or conjugal partnership property differ from a cash where administration of all classes of exclusive property of either spouse are transferred by the court to the other spouse?

One spouse may assume the sole administration of the absolute community or conjugal partnership property in the event that the other spouse is incapacitated or otherwise unable to participate in the administration of the common properties. Said spouse can assume administration without seeking court authorization. This is so because the administration of the absolute community or conjugal partnership property belong to both spouses jointly. (Arts. 96 and 94, FC)

On the other hand, administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or

(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. (Art. 142, FC)

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Donations by Reason of Marriage

Donations propter nuptias

Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (Art. 82, FC)

What rules govern the form of donation of propter nuptias?

The form of donation propter nuptias is governed by the rules on ordinary donations established in Title III of Book III of the Civil Code (on donations), insofar as they are not modified by the subsequent provisions of the FC on donations by reason of marriage (Art. 83, FC)

One-fifth limitation on present property

If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (Art. 84, FC)

What is the effect of donations by reason of marriage of property which is subject to encumbrance?

Donations by reason of marriage of property subject to encumbrances shall be valid. In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the deficiency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess. (Art. 85, FC)

Grounds for revocation of donation propter nuptias

A donation by reason of marriage may be revoked by the donor in the following cases:

(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;

(2) When the marriage takes place without the consent of the parents or guardian, as required by law;

(3) When the marriage is annulled, and the donee acted in bad faith;

(4) Upon legal separation, the donee being the guilty spouse;

(5) If it is with a resolutory condition and the condition is complied with;

(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general.  (Art. 86, FC)

Are donations made by either spouse in favor of the other, directly or indirectly, during the marriage valid?

Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (Art. 87, FC)

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Rights and Obligations Between Husband and Wife

What are the personal obligations of spouses to each other?

The husband and wife are obliged to 

1.     live together

2.     observe mutual love, respect and fidelity, and 

3.     render mutual help and support (Art. 68, FC)

Who shall fix the family domicile? In case of disagreement, who shall decide?

The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family (Art. 69, FC).

Who shall be responsible for the support of the family? How shall the expenses for such support and other conjugal obligations be paid?

The spouses are jointly responsible for the support of the family. 

The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (Art. 70, FC)

1.     From the community property or conjugal property

2.     From the income or fruits of their separate properties

3.     From the separate properties of the spouses

Who has the right and duty to the management of the household? Who shall pay for the expenses incurred for such management

The management of the household shall be the right and the duty of both spouses Art. 71, FC)

The expenses for such management shall be paid in accordance with the provisions of Article 70. 

1.     From the community property or conjugal property

2.     From the income or fruits of their separate properties

3.     From the separate properties of the spouses

Relief from the courts in case of disagreement

When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief (Art. 72, FC)

May a spouse exercise any legitimate profession, occupation, business or activity without the consent of the other? On what grounds may a spouse object to such exercise? In case of disagreement, who shall decide on such objection?

Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.

In case of disagreement, the court shall decide whether or not:

(1) The objection is proper, and

(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.

The foregoing provisions shall not prejudice the rights of creditors who acted in good faith (Art. 73, FC)

What properties shall be liable for the transactions of the spouse who acted without the consent of the other? 

It depends.

If the benefit redounded to the family prior to the objection, the absolute community or conjugal partnership properties shall be liable for the obligation resulting from the transactions of the spouse who acted without the consent of the other. This is because such benefits in the form of profits or income have become part of the absolute community or conjugal partnership properties.

However, if the profits or income have accrued after the objection, the resulting obligations shall be enforced against the separate properties of the souse who has not obtained consent.

But the rights of the creditors who acted in good faith in transacting with the spouse who acted without the consent of the other spouse shall not be prejudiced in their rights. Thus, they may go after and hold the absolute community or conjugal partnership properties or the separate properties of the spouse with whom the creditors contracted (Art. 73, FC).

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