I.

VOID MARRIAGES
General Rule:

Art. 4 of the Family Code: Art. 4. The absence of any of the essential or
formal requisites shall render the marriage void ab initio, except as stated
in Article 35 (2).

1. Kinds of void marriages

(a) Effect of absence of requisites

Art. 35 of the Family Code:

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. 234 of the Family Code:

Art. 234. Emancipation takes place by the attainment of majority. Unless

otherwise provided, majority commences at the age of twenty-one years.

RA 6809:
Section 1. Article 234 of Executive Order No. 209, the Family Code of the
Philippines, is hereby amended to read as follows:

    "Art. 234.Emancipation takes place by the attainment of

majority. Unless otherwise provided, majority commences at the age of
eighteen years."

Sec. 2. Articles 235 and 237 of the same Code are hereby repealed.
Sec.  3. Article 236 of the same Code is also hereby amended to read as
follows:

    "Art. 236.Emancipation shall terminate parental authority over the

person and property of the child who shall then be qualified and
responsible for all acts of civil life, save the exceptions established by
existing laws in special cases.

    "Contracting marriage shall require parental consent until the age of
twenty-one.
    "Nothing in this Code shall be construed to derogate from the duty or
responsibility of parents and guardians for children and wards below
twenty-one years of age mentioned in the second and third paragraphs of
Article 2180 of the Civil Code."

Sec.  4. Upon the effectivity of this Act, existing wills, bequests, donations,
grants, insurance policies and similar instruments containing references
and provisions favorable to minors will not retroact to their prejudice.

Sec.  5. This Act shall take effect upon completion of its publication in at
least two (2) newspapers of general circulation.

Approved: December 13, 1989

De Castro v. Assidao- De Castro

The validity of a void marriage may be collaterally attacked; Other than for
purposes of remarriage, no judicial action is necessary to declare a
marriage an absolute nullity.—The Court holds that the trial court had
jurisdiction to determine the validity of the marriage between petitioner and
respondent. The validity of a void marriage may be collaterally attacked.
Thus, in Niñal v. Bayadog, 328 SCRA 122 (2000), we held: However, other
than for purposes of remarriage, no judicial action is necessary to declare a
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 for that matter, the
court may pass upon the validity of marriage even in a suit not directly
instituted to question the same so 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 judgment declaring such previous marriage void” in
Article 40 of the Family Code connotes that such final judgment need not
be obtained only for purpose of remarriage.

Court may pass upon the validity of a marriage even in a suit not directly
instituted to question the validity of said marriage, so long as it is essential
to the determination of the case.—In Nicdao Cariño v. Yee Cariño, 351
SCRA 127 (2001), the Court ruled that it is clothed with sufficient authority
to pass upon the validity of two marriages despite the main case being a
claim for death benefits. Reiterating Niñal, we held that the Court may pass
upon the validity of a marriage even in a suit not directly instituted to
question the validity of said marriage, so long as it is essential to the
determination of the case. However, evidence must be adduced,
testimonial or documentary, to prove the existence of grounds rendering
such a marriage an absolute nullity.

Under the Family Code, the absence of any of the essential or formal
requisites shall render the marriage void ab initio, whereas a defect in any
of the essential requisites shall render the marriage voidable.—Under the
Family Code, the absence of any of the essential or formal requisites shall
render the marriage void ab initio, whereas a defect in any of the essential
requisites shall render the marriage voidable. In the instant case, it is clear
from the evidence presented that petitioner and respondent did not have a
marriage license when they contracted their marriage. Instead, they
presented an affidavit stating that they had been living together for more
than five years. However, respondent herself in effect admitted the falsity of
the affidavit when she was asked during crossexamination, thus—ATTY.
CARPIO: QBut despite of (sic) the fact that you have not been living
together as husband and wife for the last five years on or before March 13,
1995, you signed the Affidavit, is that correct? AYes, sir.

Failure to obtain and present a marriage license renders the marriage void
ab initio.—The falsity of the affidavit cannot be considered as a mere
irregularity in the formal requisites of marriage. The law dispenses with the
marriage license requirement for 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 marriage.
The aim of this provision is to avoid exposing the parties to humiliation,
shame and embarrassment concomitant with the scandalous cohabitation
of persons outside a valid marriage due to the publication of every
applicant’s name for a marriage license. In the instant case, there was no
“scandalous cohabitation” to protect; in fact, there was no cohabitation at
all. The false affidavit which petitioner and respondent executed so they
could push through with the marriage has no value whatsoever; it is a mere
scrap of paper. They were not exempt from the marriage license
requirement. Their failure to obtain and present a marriage license renders
their marriage void ab initio.

(b) Bigamous and polygamous marriages

Art. 35 of the Family Code.

The following marriages shall be void from the beginning:

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

Art. 41 of the Family Code

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.

b.1 Who may file and penalty

Art. 344 of the RPC

Prosecution of the Crimes of Adultery, Concubinage, Seduction, Abduction,

Rape and Acts of Lasciviousness. — The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.

The offended party cannot institute criminal prosecution without including

both the guilty parties, if they are both alive, nor, in any case, if he shall
have consented or pardoned the offenders.

The offenses of seduction, abduction, rape or acts of lasciviousness, shall

not be prosecuted except upon a complaint filed by the offended party or
her parents, grandparents, or guardian, nor, in any case, if the offender has
been expressly pardoned by the above named persons, as the case may
be.

In cases of seduction, abduction, acts of lasciviousness and rape, the

marriage of the offender with the offended party shall extinguish the
criminal action or remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to the co-principals,
accomplices and accessories after the fact of the abovementioned crimes.

Art. 349 of the RPC

Bigamy. — The penalty of prisión 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 judgment rendered in the
proper proceedings.

b.2 Old and new rules on the need to declare the first marriage void

Old rule: No judicial decree needed to declare a void marriage

People v Mendoza

BIGAMY; MARRIAGE CONTRACTED DURING THE EXISTENCE OF

THE FIRST MARRIAGE is VOID AB INITIO; No JUDICIAL DECREE is
NECESSARY TO ESTABLISH ITS INVALIDITY.—A subsequent marriage
contracted by any person during the lifetime of his espouse is illegal and
void from its performance, and no judicial decree is necessary to establish
its invalidity. A prosecution for bigamy based on said void marriage will not
lie.

New rule: Judicial decree is needed. Reasons.

Wiegel v. Sempio-Diy

Proof that first marriage was vitiated by force, not necessary in an action
for a declaration of nullity of marriage filed by the second husband;
Reason.—There is no need for petitioner to prove that her first marriage
was vitiated by force committed against both parties because assuming this
to be so, the marriage will not be void but merely voidable (Art. 85, Civil
Code), and therefore valid until annulled. Since no annulment has yet been
made, it is clear that when she married respondent she was still validly
married to her first husband, consequently, her marriage to respondent is
VOID (Art. 80, Civil Code).

Introducing evidence about existing prior marriage, not necessary as the

first marriage though void, still needs a judicial declaration of such fact;
Woman’s marriage to second husband void; Case at bar.—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 such a
marriage though void still needs according to this Court a judicial
declaration of such fact and for all legal intents and purposes she would still
be regarded as a married woman at the time she contracted her marriage
with respondent Karl Heinz Wiegel); accordingly, the marriage of petitioner
and respondent would be regarded VOID under the law.

Domingo v. CA

A marriage though void still needs a judicial declaration of such fact under
the. Family Code even for purposes other than remarriage.—Came the
Family Code which settled once and for all the conflicting jurisprudence on
the matter. A declaration of the absolute nullity of a marriage is now
explicitly required either as a cause of action or a ground for defense.
Where the absolute nullity of a previous marriage is sought to be invoked
for purposes of contracting a second marriage, the sole basis acceptable in
law for said projected marriage to be free from legal infirmity is a final
judgment declaring the previous marriage void.

—In fact, the requirement for a declaration of absolute nullity of a marriage

is also for the protection of the spouse who, believing that his or her
marriage is illegal and void, marries again. With the judicial declaration of
the nullity of his or her first marriage, the person who marries again cannot
be charged with bigamy.

—That Article 40 as finally formulated included the significant clause

denotes that such final judgment declaring the previous marriage void need
not be obtained only for purposes of remarriage. Undoubtedly, one can
conceive of other instances where a party might well invoke the absolute
nullity of a previous marriage for purposes other than remarriage, such as
in case of an action for liquidation, partition, distribution and separation of
property between the erstwhile spouses, as well as an action for the
custody and support of their common children and the delivery of the
latters’ presumptive legitimes. In such cases, evidence needs must be
adduced, testimonial or documentary, to prove the existence of grounds
rendering such a previous marriage an absolute nullity. These need not be
limited solely to an earlier final judgment of a court declaring such previous
marriage void. Hence, in the instance where a party who has previously
contracted a marriage which remains subsisting desires to enter into
another marriage which is legally unassailable, he is required by law to
prove that the previous one was an absolute nullity. But this he may do on
the basis solely of a final judgment declaring such previous marriage void.

Declaration of nullity of marriage carries ipso facto a judgment for the

liquidation of property, custody and support of children, etc. There is no
need of filing a separate civil action for such purposes.—Based on the
foregoing provisions, private respondent’s ultimate prayer for separation of
property will simply be one of the necessary consequences of the judicial
declaration of absolute nullity of their marriage. Thus, petitioner’s
suggestion that in order for their properties to be separated, an ordinary
civil action has to be instituted for that purpose is baseless. The Family
Code has clearly provided the effects of the declaration of nullity of
marriage, one of which is the separation of property according to the
regime of property relations governing them. It stands to reason that the
lower court before whom the issue of nullity of a first marriage is brought is
likewise clothed with jurisdiction to decide the incidental questions
regarding the couple’s properties. Accordingly, the respondent court
committed no reversible error in finding that the lower court committed no
grave abuse of discretion in denying petitioner’s motion to dismiss SP No.
1989-J.

VITUG, J., Concurring:

Certain effects of a valid marriage can flow out of a void marriage.—A void
marriage, even without its being judicially declared a nullity, albeit the
preferability for, and justiciability (fully discussed in the majority opinion) of,
such a declaration, will not give it the status or the consequences of a valid
marriage, saving only specific instances where certain effects of a valid
marriage can still flow from the void marriage. Examples of these cases are
children of void marriages under Article 36 (due to psychological
incapacity) and Article 53, in relation to Article 52 (due to failure of partition,
delivery of presumptive legitimes of children and recording thereof following
the annulment or declaration of nullity of a prior marriage), conceived or
born before the judicial declaration of nullity of such void marriages, who
the law deems as legitimate (Article 54, Family Code).
Marbella-Bobis v. Bobis

Bigamy; Family Code; Article 40 of the Family Code requires a prior judicial
declaration of nullity of a previous marriage before a party may remarry.—
Article 40 of the Family Code, which was effective at the time of celebration
of the second marriage, requires a prior judicial declaration of nullity of a
previous marriage before a party may remarry. The clear implication of this
is that it is not for the parties, particularly the accused, to determine the
validity or invalidity of the marriage. Whether or not the first marriage was
void for lack of a license is a matter of defense because there is still no
judicial declaration of its nullity at the time the second marriage was
contracted. It should be remembered that bigamy can successfully be
prosecuted provided all its elements concur—two of which are a previous
marriage and a subsequent marriage which would have been valid had it
not been for the existence at the material time of the first marriage.

Parties to a marriage should not be permitted to judge for themselves its

nullity, only competent courts having such authority.—Respondent’s clear
intent is to obtain a judicial declaration of nullity of his first marriage and
thereafter to invoke that very same judgment to prevent his prosecution for
bigamy. He cannot have his cake and eat it too. Otherwise, all that an
adventurous bigamist has to do is to disregard Article 40 of the Family
Code, contract a subsequent marriage and escape a bigamy charge by
simply claiming that the first marriage is void and that the subsequent
marriage is equally void for lack of a prior judicial declaration of nullity of
the first. A party may even enter into a marriage aware of the absence of a
requisite—usually the marriage license—and thereafter contract a
subsequent marriage without obtaining a declaration of nullity of the first on
the assumption that the first marriage is void. Such scenario would render
nugatory the provisions on bigamy. As succinctly held in Landicho v.
Relova: (P)arties to a marriage should not be permitted to judge for
themselves its nullity, only competent courts having such authority. Prior to
such declaration of nullity, the validity of the first marriage is beyond
question. A party who contracts a second marriage then assumes the risk
of being prosecuted for bigamy.
Elements.—People v. Dumpo, 62 Phil. 246 (1935). The elements of bigamy
are: (1) the offender has been legally married; (2) that the first marriage has
not been legally dissolved, or in case his or her spouse is absent, the
absent spouse has not been judicially declared presumptively dead; (3) that
he contracts a subsequent marriage; (4) the subsequent marriage would
have been valid had it not been for the existence of the first. The exception
to prosecution for bigamy are those covered by Article 41 of the Family
Code and by PD 1083 otherwise known as the Code of Muslim Personal
Laws of the Philippines, which provides that penal laws relative to the crime
of bigamy “shall not apply to a person married x x x under Muslim Law”
where the requirements set therein are met.

The pendency of a civil case for declaration of nullity of marriage is not a

prejudicial question in a prosecution for concubinage or bigamy.—Parties
should not be permitted to judge for themselves the nullity of their marriage,
for the same must be submitted to the determination of competent courts.
Only when the nullity of the marriage is so declared can it be held as void,
and so long as there is no such declaration the presumption is that the
marriage exists. No matter how obvious, manifest or patent the absence of
an element is, the intervention of the courts must always be resorted to.
That is why Article 40 of the Family Code requires a “final judgment,” which
only the courts can render. Thus, as ruled in Landicho v. Relova, he who
contracts a second marriage before the judicial declaration of nullity of the
first marriage assumes the risk of being prosecuted for bigamy, and in such
a case the criminal case may not be suspended on the ground of the
pendency of a civil case for declaration of nullity. In a recent case for
concubinage, we held that the pendency of a civil case for declaration of
nullity of marriage is not a prejudicial question. This ruling applies here by
analogy since both crimes presuppose the subsistence of a marriage.

A marriage though void still needs a judicial declaration of such fact before
any party can marry again, otherwise the second marriage will also be
void.—In the light of Article 40 of the Family Code, respondent, without first
having obtained the judicial declaration of nullity of the first marriage, can
not be said to have validly entered into the second marriage. Per current
jurisprudence, a marriage though void still needs a judicial declaration of
such fact before any party can marry again; otherwise the second marriage
will also be void. The reason is that, without a judicial declaration of its
nullity, the first marriage is presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes regarded as a married
man at the time he contracted his second marriage with petitioner. Against
this legal backdrop, any decision in the civil action for nullity would not
erase the fact that respondent entered into a second marriage during the
subsistence of a first marriage. Thus, a decision in the civil case is not
essential to the determination of the criminal charge. It is, therefore, not a
prejudicial question. As stated above, respondent cannot be permitted to
use his own malfeasance to defeat the criminal action against him.

Teves v. People

Declaration of Nullity of Marriage; Where the absolute nullity of a previous

marriage is sought to be invoked for purposes of contracting a second
marriage, the sole basis acceptable in law for said projected marriage to be
free from legal infirmity is a final judgment declaring the previous marriage
void.—It is evident therefore that petitioner has committed the crime
charged. His contention that he cannot be charged with bigamy in view of
the declaration of nullity of his first marriage is bereft of merit. The Family
Code has settled once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a marriage is now explicitly
required either as a cause of action or a ground for defense. Where the
absolute nullity of a previous marriage is sought to be invoked for purposes
of contracting a second marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final judgment
declaring the previous marriage void.

The finality of the judicial declaration of the nullity of previous marriage of

the accused cannot be made to retroact to the date of the bigamous
marriage.—Settled is the rule that criminal culpability attaches to the
offender upon the commission of the offense, and from that instant, liability
appends to him until extinguished as provided by law, and that the time of
filing of the criminal complaint (or Information, in proper cases) is material
only for determining prescription. The crime of bigamy was committed by
petitioner on 10 December 2001 when he contracted a second marriage
with Edita. The finality on 27 June 2006 of the judicial declaration of the
nullity of his previous marriage to Thelma cannot be made to retroact to the
date of the bigamous marriage.

Iwasawa v. Gangan

Judicial Declaration of Nullity of Marriage; Annulment of Marriage; The

Supreme Court has consistently held that a judicial declaration of nullity is
required before a valid subsequent marriage can be contracted; or else,
what transpires is a bigamous marriage, which is void from the beginning
as provided in Article 35(4) of the Family Code of the Philippines.—This
Court has consistently held that a judicial declaration of nullity is required
before a valid subsequent marriage can be contracted; or else, what
transpires is a bigamous marriage, which is void from the beginning as
provided in Article 35(4) of the Family Code of the Philippines. And this is
what transpired in the instant case. As correctly pointed out by the OSG,
the documentary exhibits taken together concretely establish the nullity of
the marriage of petitioner to private respondent on the ground that their
marriage is bigamous. The exhibits directly prove the following facts: (1)
that private respondent married Arambulo on June 20, 1994 in the City of
Manila; (2) that private respondent contracted a second marriage this time
with petitioner on November 28, 2002 in Pasay City; (3) that there was no
judicial declaration of nullity of the marriage of private respondent with
Arambulo at the time she married petitioner; (3) that Arambulo died on July
14, 2009 and that it was only on said date that private respondent’s
marriage with Arambulo was deemed to have been dissolved; and (4) that
the second marriage of private respondent to petitioner is bigamous, hence
null and void, since the first marriage was still valid and subsisting when the
second marriage was contracted.

b.3 Contracting a bigamous marriage is a ground for disbarment

Terre v. Terre

A marriage contracted in good faith with woman already married is valid.

Hence, contracting a subsequent marriage with another woman would be
bigamous.—Even if we were to assume, arguendo merely, that Jordan
Terre held that mistaken belief in good faith, the same result will follow. For
if we are to hold Jordan Terre to his own argument, his first marriage to
complainant Dorothy Terre must be deemed valid, with the result that his
second marriage to Helina Malicdem must be regarded as bigamous and
criminal in character.

An attorney who convinces a married woman to marry him, who abandons

her with child; and who contracts a second marriage is disbarred.—We
believe and so hold that the conduct of respondent Jordan Terre in
inveigling complainant Dorothy Terre to contract a second marriage with
him; in abandoning complainant Dorothy Terre after she had cared for him
and supported him through law school, leaving her without means for the
safe delivery of his own child; in contracting a second marriage with Helina
Malicdem while his first marriage with complainant Dorothy Terre was
subsisting, constituted “grossly immoral conduct” under Section 27 of Rule
138 of the Rules of Court, affording more than sufficient basis for
disbarment of respondent Jordan Terre. He was unworthy of admission to
the Bar in the first place. The Court will correct this error forthwith.

b.4 Subsequent rendition of judicial declaration of nullity of the first

marriage is immaterial

Mercado v. Tan

Jurisprudence regarding the need for a judicial declaration of nullity of the

previous marriage has been characterized as “conflicting”; Under the
Family Code, a declaration of the absolute nullity of a marriage is now
explicitly required either as a cause of action or a ground for defense.—
Jurisprudence regarding the need for a judicial declaration of nullity of the
previous marriage has been characterized as “conflicting.” x x x x x x x x x
In Domingo v. CA, the issue raised was whether a judicial declaration of
nullity was still necessary for the recovery and the separation of properties
of erstwhile spouses. Ruling in the affirmative, the Court declared: “The
Family Code has settled once and for all the conflicting jurisprudence on
the matter. A declaration of the absolute nullity of a marriage is now
explicitly required either as a cause of action or a ground for defense; in
fact, the requirement for a declaration of absolute nullity of a marriage is
also for the protection of the spouse who, believing that his or her marriage
is illegal and void, marries again. With the judicial declaration of the nullity
of his or her first marriage, the person who marries again cannot be
charged with bigamy.”

Absent that declaration, Court holds that one may be charged with and
convicted of bigamy.—The statutory mooring of the ruling in Mendoza and
Aragon—that there is no need for a judicial declaration of nullity of a void
marriage—has been cast aside by Article 40 of the Family Code. Such
declaration is now necessary before one can contract a second marriage.
Absent that declaration, we hold that one may be charged with and
convicted of bigamy.

By contracting a second marriage while the first was still subsisting,

petitioner committed the acts punishable under Article 349 of the Revised
Penal Code.—Petitioner contracted a second marriage although there was
yet no judicial declaration of nullity of his first marriage. In fact, he instituted
the Petition to have the first marriage declared void only after complainant
had filed a letter-complaint charging him with bigamy. By contracting a
second marriage while the first was still subsisting, he committed the acts
punishable under Article 349 of the Revised Penal Code.

Fact that he subsequently obtained a judicial declaration of the nullity of the

first marriage was immaterial.—That he subsequently obtained a judicial
declaration of the nullity of the first marriage was immaterial. To repeat, the
crime had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy cases; an
accused could simply file a petition to declare his previous marriage void
and invoke the pendency of that action as a prejudicial question in the
criminal case.

Antone v Beronilla

Under the Family Code a subsequent judicial declaration of the nullity of

the first marriage is immaterial in a bigamy case because, by then, the
crime had already been consummated.—The specific provision, which
reads: “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 marriage void.” was exhaustively discussed in Mercado,
where this Court settled the “conflicting” jurisprudence on “the need for a
judicial declaration of nullity of the previous marriage.” After establishing
that Article 40 is a new provision expressly requiring a judicial declaration
of nullity of a prior marriage and examining a long line of cases, this Court,
concluded, in essence, that under the Family Code a subsequent judicial
declaration of the nullity of the first marriage is immaterial in a bigamy case
because, by then, the crime had already been consummated. Otherwise
stated, this Court declared that a person, who contracts a subsequent
marriage absent a prior judicial declaration of nullity of a previous one, is
guilty of bigamy.

b.5 Outcome of annulment of marriage has no bearing on accused’s

guilt or innocence in a bigamy case

Te v. CA

The outcome of the civil case for annulment of marriage has no bearing
upon the determination of the accused’s innocence or guilt in the criminal
case for bigamy, because all that is required for the charge of bigamy to
prosper is that the first marriage be subsisting at the time the second
marriage is contracted; The ruling in People v. Mendoza, 95 Phil. 843
(1954) and People v. Aragon, 100 Phil. 1033 (1957) that no judicial decree
is necessary to establish the invalidity of a marriage which is void ab initio
has been overturned—the prevailing rule is found in Article 40 of the
Family Code.—The outcome of the civil case for annulment of petitioner’s
marriage to private respondent had no bearing upon the determination of
petitioner’s innocence or guilt in the criminal case for bigamy, because all
that is required for the charge of bigamy to prosper is that the first marriage
be subsisting at the time the second marriage is contracted. Petitioner’s
argument that the nullity of his marriage to private respondent had to be
resolved first in the civil case before the criminal proceedings could
continue, because a declaration that their marriage was void ab initio would
necessarily absolve him from criminal liability, is untenable. The ruling in
People vs. Mendoza and People vs. Aragon cited by petitioner that no
judicial decree is necessary to establish the invalidity of a marriage which is
void ab initio has been overturned. The prevailing rule is found in Article 40
of the Family Code, which was already in effect at the time of petitioner’s
marriage to private respondent in September 1988. Said article states that
the absolute nullity of a previous marriage may not be invoked for purposes
of remarriage unless there is a final judgment declaring such previous
marriage void. Thus, under the law, a marriage, even one which is void or
voidable, shall be deemed valid until declared otherwise in a judicial
proceeding.

Tenebro v. CA

There is absolutely no requirement in the law that a marriage contract

needs to be submitted to the civil registrar as a condition precedent for the
validity of a marriage; The mere fact that no record of a marriage exists
does not invalidate the marriage, provided all the requisites for its validity
are present.–The marriage contract presented by the prosecution serves as
positive evidence as to the existence of the marriage between Tenebro and
Villareyes, which should be given greater credence than documents
testifying merely as to absence of any record of the marriage, especially
considering that there is absolutely no requirement in the law that a
marriage contract needs to be submitted to the civil registrar as a condition
precedent for the validity of a marriage. The mere fact that no record of a
marriage exists does not invalidate the marriage, provided all requisites for
its validity are present. There is no evidence presented by the defense that
would indicate that the marriage between Tenebro and Villareyes lacked
any requisite for validity, apart from the self-serving testimony of the
accused himself.

A declaration of the nullity of the second marriage on the ground of

psychological incapacity is of absolutely no moment insofar as the State’s
penal laws are concerned.–Petitioner makes much of the judicial
declaration of the nullity of the second marriage on the ground of
psychological incapacity, invoking Article 36 of the Family Code. What
petitioner fails to realize is that a declaration of the nullity of the second
marriage on the ground of psychological incapacity is of absolutely no
moment insofar as the State’s penal laws are concerned.

A marriage contracted during the subsistence of a valid marriage is

automatically void, the nullity of this second marriage is not per se an
argument for the avoidance of criminal liability for bigamy; Article 349 of the
Revised Penal Code penalizes the mere act of contracting a second or a
subsequent marriage during the subsistence of a valid marriage.–As a
second or subsequent marriage contracted during the subsistence of
petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas
would be null and void ab initio completely regardless of petitioner’s
psychological capacity or incapacity. Since a marriage contracted during
the subsistence of a valid marriage is automatically void, the nullity of this
second marriage is not per se an argument for the avoidance of criminal
liability for bigamy. Pertinently, Article 349 of the Revised Penal Code
criminalizes “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 proceedings.” A plain reading of the law,
therefore, would indicate that the provision penalizes the mere act of
contracting a second or a subsequent marriage during the subsistence of a
valid marriage.

Concurring Opinion:

The requisites for the validity of a marriage are classified by the Family
Code into essential (legal capacity of the contracting parties and their
consent freely given in the presence of the solemnizing officer) and formal
(authority of the solemnizing officer, marriage license, and marriage
ceremony wherein the parties personally declare their agreement to marry
before the solemnizing officer in the presence of at least two witnesses).–
Moreover, the declaration of the nullity of the second marriage on the
ground of psychological incapacity is not an indicator that petitioner’s
marriage to Ancajas lacks the essential requisites for validity. The
requisites for the validity of a marriage are classified by the Family Code
into essential (legal capacity of the contracting parties and their consent
freely given in the presence of the solemnizing officer) and formal (authority
of the solemnizing officer, marriage license, and marriage ceremony
wherein the parties personally declare their agreement to marry before the
solemnizing officer in the presence of at least two witnesses). Under Article
5 of the Family Code, any male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles 37 and 38
may contract marriage.

The judicial declaration of nullity of a bigamous marriage on the ground of

psychological incapacity merely nullifies the effects of the marriage but it
does not negate the fact of perfection of the bigamous marriage.–Since
psychological incapacity, upon the other hand, does not relate to an
infirmity in the elements, either essential or formal, in contracting a valid
marriage, the declaration of nullity subsequent to the bigamous marriage
due to that ground, without more, would be inconsequential in a criminal
charge for bigamy. The judicial declaration of nullity of a bigamous
marriage on the ground of psychological incapacity merely nullifies the
effects of the marriage but it does not negate the fact of perfection of the
bigamous marriage. Its subsequent declaration of nullity dissolves the
relationship of the spouses but, being alien to the requisite conditions for
the perfection of the marriage, the judgment of the court is no defense on
the part of the offender who has entered into it.

b.6 Is psychological incapacity a valid defense in bigamy?

Montanez v. Cipriano

It is essential in the prosecution for bigamy that the alleged second

marriage, having all the essential requirements, would be valid were it not
for the subsistence of the first marriage.―The elements of the crime of
bigamy are: (a) the offender has been legally married; (b) the marriage has
not been legally dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead according to the Civil
Code; (c) that he contracts a second or subsequent marriage; and (d) the
second or subsequent marriage has all the essential requisites for validity.
The felony is consummated on the celebration of the second marriage or
subsequent marriage. It is essential in the prosecution for bigamy that the
alleged second marriage, having all the essential requirements, would be
valid were it not for the subsistence of the first marriage.

The subsequent judicial declaration of nullity of the first marriage would not
change the fact that she contracted the second marriage during the
subsistence of the first marriage.―At the time respondent contracted the
second marriage, the first marriage was still subsisting as it had not yet
been legally dissolved. As ruled in the above-mentioned jurisprudence, the
subsequent judicial declaration of nullity of the first marriage would not
change the fact that she contracted the second marriage during the
subsistence of the first marriage. Thus, respondent was properly charged
of the crime of bigamy, since the essential elements of the offense charged
were sufficiently alleged.

*** Clearly, the annulment of respondent’s first marriage on the ground of

psychological incapacity was declared only in 2003. The question now is
whether the declaration of nullity of respondent’s first marriage justifies the
dismissal of the Information for bigamy filed against her.

We rule in the negative.

In Mercado v. Tan, we ruled that the subsequent judicial declaration of the

nullity of the first marriage was immaterial, because prior to the declaration
of nullity, the crime of bigamy had already been consummated. And by
contracting a second marriage while the first was still subsisting, the
accused committed the acts punishable under Article 349 of the Revised
Penal Code.

In Abunado v. People, we held that what is required for the charge of

bigamy to prosper is that the first marriage be subsisting at the time the
second marriage is contracted.28 Even if the accused eventually obtained
a declaration that his first marriage was void ab initio, the point is, both the
first and the second marriage were subsisting before the first marriage was
annulled.
b.7 He who contracts marriage before the judicial declaration of the
first marriage assumes the risk of being charged with bigamy and
disbarment if he is a lawyer

Capili v. People

Jurisprudence is replete with cases holding that the accused may still be
charged with the crime of bigamy, even if there is a subsequent declaration
of the nullity of the second marriage, so long as the first marriage was still
subsisting when the second marriage was celebrated.—It is undisputed
that a second marriage between petitioner and private respondent was
contracted on December 8, 1999 during the subsistence of a valid first
marriage between petitioner and Karla Y. Medina-Capili contracted on
September 3, 1999. Notably, the RTC of Antipolo City itself declared the
bigamous nature of the second marriage between petitioner and private
respondent. Thus, the subsequent judicial declaration of the second
marriage for being bigamous in nature does not bar the prosecution of
petitioner for the crime of bigamy. Jurisprudence is replete with cases
holding that the accused may still be charged with the crime of bigamy,
even if there is a subsequent declaration of the nullity of the second
marriage, so long as the first marriage was still subsisting when the second
marriage was celebrated.

He who contracts a second marriage before the judicial declaration of the

first marriage assumes the risk of being prosecuted for bigamy.—The Court
recently upheld the ruling in the aforementioned case and ruled that what
makes a person criminally liable for bigamy is when he contracts a second
or subsequent marriage during the subsistence of a valid first marriage. It
further held that the parties to the marriage should not be permitted to
judge for themselves its nullity, for the same must be submitted to the
judgment of competent courts and only when the nullity of the marriage is
so declared can it be held as void, and so long as there is no such
declaration the presumption is that the marriage exists. Therefore, he who
contracts a second marriage before the judicial declaration of the first
marriage assumes the risk of being prosecuted for bigamy.
Perez v. Catindig

Considering that Atty. Catindig knew that his previous marriage remained
valid, the logical conclusion is that he wanted to marry Dr. Perez in the
United States of America (USA) for the added security of avoiding any
charge of bigamy by entering into the subsequent marriage outside
Philippine jurisdiction.—From his own admission, Atty. Catindig knew that
the divorce decree he obtained from the court in the Dominican Republic
was not recognized in our jurisdiction as he and Gomez were both Filipino
citizens at that time. He knew that he was still validly married to Gomez;
that he cannot marry anew unless his previous marriage be properly
declared a nullity. Otherwise, his subsequent marriage would be void. This
notwithstanding, he still married Dr. Perez. The foregoing circumstances
seriously taint Atty. Catindig’s sense of social propriety and moral values. It
is a blatant and purposeful disregard of our laws on marriage. It has also
not escaped the attention of the Court that Atty. Catindig married Dr. Perez
in the USA. Considering that Atty. Catindig knew that his previous marriage
remained valid, the logical conclusion is that he wanted to marry Dr. Perez
in the USA for the added security of avoiding any charge of bigamy by
entering into the subsequent marriage outside Philippine jurisdiction.
Moreover, assuming arguendo that Atty. Catindig’s claim is true, it matters
not that Dr. Perez knew that their marriage is a nullity. The fact still remains
that he resorted to various legal strategies in order to render a facade of
validity to his otherwise invalid marriage to Dr. Perez. Such act is, at the
very least, so unprincipled that it is reprehensible to the highest degree.

The Supreme Court’s (SC’s) finding of gross immoral conduct is hinged not
on Atty. Catindig’s desertion of Dr. Perez, but on his contracting of a
subsequent marriage during the subsistence of his previous marriage to
Gomez.—While the fact that Atty. Catindig decided to separate from Dr.
Perez to pursue Atty. Baydo, in itself, cannot be considered a grossly
immoral conduct, such fact forms part of the pattern showing his propensity
towards immoral conduct. Lest it be misunderstood, the Court’s finding of
gross immoral conduct is hinged not on Atty. Catindig’s desertion of Dr.
Perez, but on his contracting of a subsequent marriage during the
subsistence of his previous marriage to Gomez.
The Supreme Court (SC) has held that disbarment is warranted when a
lawyer abandons his lawful wife and maintains an illicit relationship with
another woman who has borne him a child.—“The moral delinquency that
affects the fitness of a member of the bar to continue as such includes
conduct that outrages the generally accepted moral standards of the
community, conduct for instance, which makes ‘a mockery of the inviolable
social institution of marriage.’” In various cases, the Court has held that
disbarment is warranted when a lawyer abandons his lawful wife and
maintains an illicit relationship with another woman who has borne him a
child.

b.7 Effect of divorce obtained abroad

Fujiki v. Marinay

A foreign judgment relating to the status of a marriage affects the civil

status, condition and legal capacity of its parties. However, the effect of a
foreign judgment is not automatic. To extend the effect of a foreign
judgment in the Philippines, Philippine courts must determine if the foreign
judgment is consistent with domestic public policy and other mandatory
laws.—A foreign judgment relating to the status of a marriage affects the
civil status, condition and legal capacity of its parties. However, the effect of
a foreign judgment is not automatic. To extend the effect of a foreign
judgment in the Philippines, Philippine courts must determine if the foreign
judgment is consistent with domestic public policy and other mandatory
laws. Article 15 of the Civil Code provides that “[l]aws relating to family
rights and duties, or to the status, condition and legal capacity of persons
are binding upon citizens of the Philippines, even though living abroad.”
This is the rule of lex nationalii in private international law. Thus, the
Philippine State may require, for effectivity in the Philippines, recognition by
Philippine courts of a foreign judgment affecting its citizen, over whom it
exercises personal jurisdiction relating to the status, condition and legal
capacity of such citizen.

A petition to recognize a foreign judgment declaring a marriage void does

not require relitigation under a Philippine court of the case as if it were a
new petition for declaration of nullity of marriage.—A petition to recognize a
foreign judgment declaring a marriage void does not require relitigation
under a Philippine court of the case as if it were a new petition for
declaration of nullity of marriage. Philippine courts cannot presume to know
the foreign laws under which the foreign judgment was rendered. They
cannot substitute their judgment on the status, condition and legal capacity
of the foreign citizen who is under the jurisdiction of another state. Thus,
Philippine courts can only recognize the foreign judgment as a fact
according to the rules of evidence.

While the Philippines does not have a divorce law, Philippine courts may,
however, recognize a foreign divorce decree under the second paragraph
of Article 26 of the Family Code, to capacitate a Filipino citizen to remarry
when his or her foreign spouse obtained a divorce decree abroad.—Since
1922 in Adong v. Cheong Seng Gee, 43 Phil. 43 (1922), Philippine courts
have recognized foreign divorce decrees between a Filipino and a foreign
citizen if they are successfully proven under the rules of evidence. Divorce
involves the dissolution of a marriage, but the recognition of a foreign
divorce decree does not involve the extended procedure under A.M. No.
02-11-10-SC or the rules of ordinary trial. While the Philippines does not
have a divorce law, Philippine courts may, however, recognize a foreign
divorce decree under the second paragraph of Article 26 of the Family
Code, to capacitate a Filipino citizen to remarry when his or her foreign
spouse obtained a divorce decree abroad.

Article 26 of the Family Code confers jurisdiction on Philippine courts to

extend the effect of a foreign divorce decree to a Filipino spouse without
undergoing trial to determine the validity of the dissolution of the marriage.
—Article 26 of the Family Code confers jurisdiction on Philippine courts to
extend the effect of a foreign divorce decree to a Filipino spouse without
undergoing trial to determine the validity of the dissolution of the marriage.
The second paragraph of Article 26 of the Family Code provides that
“[w]here a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law.” In Republic v. Orbecido, 472
SCRA 114 (2005), this Court recognized the legislative intent of the second
paragraph of Article 26 which is “to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after obtaining a
divorce, is no longer married to the Filipino spouse” under the laws of his or
her country. The second paragraph of Article 26 of the Family Code only
authorizes Philippine courts to adopt the effects of a foreign divorce decree
precisely because the Philippines does not allow divorce. Philippine courts
cannot try the case on the merits because it is tantamount to trying a case
for divorce.

The principle in Article 26 of the Family Code applies in a marriage

between a Filipino and a foreign citizen who obtains a foreign judgment
nullifying the marriage on the ground of bigamy; If the foreign judgment is
not recognized in the Philippines, the Filipino spouse will be discriminated
— the foreign spouse can remarry while the Filipino spouse cannot
remarry.—The principle in Article 26 of the Family Code applies in a
marriage between a Filipino and a foreign citizen who obtains a foreign
judgment nullifying the marriage on the ground of bigamy. The Filipino
spouse may file a petition abroad to declare the marriage void on the
ground of bigamy. The principle in the second paragraph of Article 26 of the
Family Code applies because the foreign spouse, after the foreign
judgment nullifying the marriage, is capacitated to remarry under the laws
of his or her country. If the foreign judgment is not recognized in the
Philippines, the Filipino spouse will be discriminated — the foreign spouse
can remarry while the Filipino spouse cannot remarry.

b.9 SSS can investigate as to who are the persons entitled to benefits
in case of conflicting claims as a result of bigamous marriage

SSS v. Azote

As a social security program of the government, Section 8(e) and (k) of

Republic Act (RA) No. 8282 expressly provides who would be entitled to
receive benefits from its deceased member.—As a social security program
of the government, Section 8(e) and (k) of the said law expressly provides
who would be entitled to receive benefits from its deceased member, to wit:
SEC. 8. Terms Defined.—For purposes of this Act, the following terms
shall, unless the context indicates otherwise, have the following meanings:
x x x x (e) Dependents – The dependents shall be the following: (1) The
legal spouse entitled by law to receive support from the member; (2) The
legitimate, legitimated or legally adopted, and illegitimate child who is
unmarried, not gainfully employed, and has not reached twenty-one (21)
years of age, or if over twenty-one (21) years of age, he is congenitally or
while still a minor has been permanently incapacitated and incapable of
self-support, physically or mentally; and (3) The parent who is receiving
regular support from the member. x x x x (k) Beneficiaries – The dependent
spouse until he or she remarries, the dependent legitimate, legitimated or
legally adopted, and illegitimate children, who shall be the primary
beneficiaries of the member: Provided, That the dependent illegitimate
children shall be entitled to fifty percent (50%) of the share of the legitimate,
legitimated or legally adopted children: Provided, further, That in the
absence of the dependent legitimate, legitimated children of the member,
his/her dependent illegitimate children shall be entitled to one hundred
percent (100%) of the benefits. In their absence, the dependent parents
who shall be the secondary beneficiaries of the member. In the absence of
all the foregoing, any other person designated by the member as his/her
secondary beneficiary.

Applying Section 8(e) and (k) of Republic Act (RA) No. 8282, it is clear that
only the legal spouse of the deceased member is qualified to be the
beneficiary of the latter’s Social Security Commission (SSC) benefits.—
Applying Section 8(e) and (k) of R.A. No. 8282, it is clear that only the legal
spouse of the deceased member is qualified to be the beneficiary of the
latter’s SS benefits. In this case, there is a concrete proof that Edgardo
contracted an earlier marriage with another individual as evidenced by their
marriage contract. Edgardo even acknowledged his married status when
he filled out the 1982 Form E-4 designating Rosemarie as his spouse.

Social Security Commission; Although the Social Security Commission

(SSC) is not intrinsically empowered to determine the validity of marriages,
it is required by Section 4(b)(7) of Republic Act (RA) No. 8282 to examine
available statistical and economic data to ensure that the benefits fall into
the rightful beneficiaries.—Although the SSC is not intrinsically empowered
to determine the validity of marriages, it is required by Section 4(b)(7) of
R.A. No. 8282 to examine available statistical and economic data to ensure
that the benefits fall into the rightful beneficiaries. As held in Social Security
Commission v. Favila, 646 SCRA 462 (2011): SSS, as the primary
institution in charge of extending social security protection to workers and
their beneficiaries is mandated by Section 4(b)(7) of RA 8282 to require
reports, compilations and analyses of statistical and economic data and to
make an investigation as may be needed for its proper administration and
development. Precisely, the investigations conducted by SSS are
appropriate in order to ensure that the benefits provided under the SS Law
are received by the rightful beneficiaries. It is not hard to see that such
measure is necessary for the system’s proper administration, otherwise, it
will be swamped with bogus claims that will pointlessly deplete its funds.
Such scenario will certainly frustrate the purpose of the law which is to
provide covered employees and their families protection against the
hazards of disability, sickness, old age and death, with a view to promoting
their well-being in the spirit of social justice. Moreover and as correctly
pointed out by SSC, such investigations are likewise necessary to carry out
the mandate of Section 15 of the SS Law which provides in part, viz.: Sec.
15. Non-transferability of Benefits.—The SSS shall pay the benefits
provided for in this Act to such [x x x] persons as may be entitled thereto in
accordance with the provisions of this Act x x x.

(c) Subsequent marriage upon reappearance of absent spouse and

effects

Art. 41 in relation to Arts. 42 to 44 of the FC:

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.

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. (n)

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. (n)

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. 

Republic v. Cantor

The Family Code was explicit that the court’s judgment in summary
proceedings, such as the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code, shall be immediately final and
executory.—The Family Code was explicit that the court’s judgment in
summary proceedings, such as the declaration of presumptive death of an
absent spouse under Article 41 of the Family Code, shall be immediately
final and executory. Article 41, in relation to Article 247, of the Family Code
provides: 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. Art. 247. The judgment of the court shall be
immediately final and executory. [underscores ours] With the judgment
being final, it necessarily follows that it is no longer subject to an appeal,
the dispositions and conclusions therein having become immutable and
unalterable not only as against the parties but even as against the courts.
Modification of the court’s ruling, no matter how erroneous is no longer
permissible. The final and executory nature of this summary proceeding
thus prohibits the resort to appeal.

Before a judicial declaration of presumptive death can be obtained, it must

be shown that the prior spouse had been absent for four consecutive years
and the present spouse had a well-founded belief that the prior spouse was
already dead.—Before a judicial declaration of presumptive death can be
obtained, it must be shown that the prior spouse had been absent for four
consecutive years and the present spouse had a well-founded belief that
the prior spouse was already dead. Under Article 41 of the Family Code,
there are four (4) essential requisites for the declaration of presumptive
death: 1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred where there
is danger of death under the circumstances laid down in Article 391, Civil
Code; 2. That the present spouse wishes to remarry; 3. That the present
spouse has a well-founded belief that the absentee is dead; and 4. That the
present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.

Article 41 of the Family Code places upon the present spouse the burden
of proving the additional and more stringent requirement of “well-founded
belief” which can only be discharged upon a showing of proper and honest-
to-goodness inquiries and efforts to ascertain not only the absent spouse’s
whereabouts but, more importantly, that the absent spouse is still alive or is
already dead.—Article 41 of the Family Code, compared to the old
provision of the Civil Code which it superseded, imposes a stricter
standard. It requires a “well-founded belief” that the absentee is already
dead before a petition for declaration of presumptive death can be granted.
We have had occasion to make the same observation in Republic v.
Nolasco, 220 SCRA 20 (1993), where we noted the crucial differences
between Article 41 of the Family Code and Article 83 of the Civil Code, to
wit: Under Article 41, the time required for the presumption to arise has
been shortened to four (4) years; however, there is need for a judicial
declaration of presumptive death to enable the spouse present to remarry.
Also, Article 41 of the Family Code imposes a stricter standard than the
Civil Code: Article 83 of the Civil Code merely requires either that there be
no news that such absentee is still alive; or the absentee is generally
considered to be dead and believed to be so by the spouse present, or is
presumed dead under Articles 390 and 391 of the Civil Code. The Family
Code, upon the other hand, prescribes as “well founded belief” that the
absentee is already dead before a petition for declaration of presumptive
death can be granted. Thus, mere absence of the spouse (even for such
period required by the law), lack of any news that such absentee is still
alive, failure to communicate or general presumption of absence under the
Civil Code would not suffice. This conclusion proceeds from the premise
that Article 41 of the Family Code places upon the present spouse the
burden of proving the additional and more stringent requirement of “well-
founded belief” which can only be discharged upon a showing of proper
and honest-to-goodness inquiries and efforts to ascertain not only the
absent spouse’s whereabouts but, more importantly, that the absent
spouse is still alive or is already dead.

The law did not define what is meant by “well-founded belief;” Its
determination, so to speak, remains on a case-to-case basis.—The law did
not define what is meant by “well-founded belief.” It depends upon the
circumstances of each particular case. Its determination, so to speak,
remains on a case-to-case basis. To be able to comply with this
requirement, the present spouse must prove that his/her belief was the
result of diligent and reasonable efforts and inquiries to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that
under the circumstances, the absent spouse is already dead. It requires
exertion of active effort (not a mere passive one).

In view of the summary nature of proceedings under Article 41 of the

Family Code for the declaration of presumptive death of one’s spouse, the
degree of due diligence set by this Honorable Court in locating the
whereabouts of a missing spouse must be strictly complied with.—The
Court, fully aware of the possible collusion of spouses in nullifying their
marriage, has consistently applied the “strict standard” approach. This is to
ensure that a petition for declaration of presumptive death under Article 41
of the Family Code is not used as a tool to conveniently circumvent the
laws. Courts should never allow procedural shortcuts and should ensure
that the stricter standard required by the Family Code is met. In Republic of
the Philippines v. Court of Appeals (Tenth Div.), we emphasized that: In
view of the summary nature of proceedings under Article 41 of the Family
Code for the declaration of presumptive death of one’s spouse, the degree
of due diligence set by this Honorable Court in the above-mentioned cases
in locating the whereabouts of a missing spouse must be strictly complied
with. There have been times when Article 41 of the Family Code had been
resorted to by parties wishing to remarry knowing fully well that their
alleged missing spouses are alive and well. It is even possible that those
who cannot have their marriages xxx declared null and void under Article
36 of the Family Code resort to Article 41 of the Family Code for relief
because of the xxx summary nature of its proceedings.

Since marriage serves as the family’s foundation and since it is the state’s
policy to protect and strengthen the family as a basic social institution,
marriage should not be permitted to be dissolved at the whim of the
parties.—The application of this stricter standard becomes even more
imperative if we consider the State’s policy to protect and strengthen the
institution of marriage. Since marriage serves as the family’s foundation
and since it is the state’s policy to protect and strengthen the family as a
basic social institution, marriage should not be permitted to be dissolved at
the whim of the parties. In interpreting and applying Article 41, this is the
underlying rationale — to uphold the sanctity of marriage. Arroyo, Jr. v.
Court of Appeals, 203 SCRA 750 (1991), reflected this sentiment when we
stressed: [The] protection of the basic social institutions of marriage and
the family in the preservation of which the State has the strongest interest;
the public policy here involved is of the most fundamental kind. In Article II,
Section 12 of the Constitution there is set forth the following basic state
policy: The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution.

For purposes of remarriage, it is necessary to strictly comply with the

stringent standard and have the absent spouse judicially declared
presumptively dead.—The requisite judicial declaration of presumptive
death of the absent spouse (and consequently, the application of a
stringent standard for its issuance) is also for the present spouse’s benefit.
It is intended to protect him/her from a criminal prosecution of bigamy
under Article 349 of the Revised Penal Code which might come into play if
he/she would prematurely remarry sans the court’s declaration. Upon the
issuance of the decision declaring his/her absent spouse presumptively
dead, the present spouse’s good faith in contracting a second marriage is
effectively established. The decision of the competent court constitutes
sufficient proof of his/her good faith and his/her criminal intent in case of
remarriage is effectively negated. Thus, for purposes of remarriage, it is
necessary to strictly comply with the stringent standard and have the
absent spouse judicially declared presumptively dead.

VELASCO, JR., J., Concurring Opinion:

Declaration of Presumptive Death; View that whether or not one has a

“well-founded belief” that his or her spouse is dead depends on the unique
circumstances of each case and that there is no set standard or procedure
in determining the same.—I fully agree that whether or not one has a “well-
founded belief” that his or her spouse is dead depends on the unique
circumstances of each case and that there is no set standard or procedure
in determining the same. It is my opinion that Maria Fe failed to conduct a
search with such diligence as to give rise to a “well-founded belief” that her
husband is dead. Further, the circumstances of Jerry’s departure and Maria
Fe’s behavior after he left make it difficult to consider her belief a well-
founded one. To reiterate, Maria Fe’s alleged “well-founded” belief arose
when: (1) Jerry’s relatives and friends could not give her any information on
his whereabouts; and (2) she did not find Jerry’s name in the patients’
directory whenever she went to a hospital. To my mind, Maria Fe’s reliance
on these alone makes her belief weak and flimsy rather than “well-
founded.” Further, it appears that Maria Fe did not actively look for her
husband in hospitals and that she searched for Jerry’s name in these
hospitals’ list of patients merely as an afterthought. Moreover, it may be
sensed from the given facts that her search was not intentional or planned.
This may be noted from the fact that whenever Maria Fe went to a hospital,
she made it a point to look through the patients’ directory, hoping to find
Jerry. Verily, it is as if she searched the patient’s directory only when she
was in a hospital by coincidence.
View that it is the policy of the State to protect and preserve marriage.
Courts should be ever mindful of this policy and, hence, must exercise
prudence in evaluating petitions for declaration of presumptive death of an
absent spouse.—Were it not for the finality of the RTC ruling, the
declaration of presumptive death should have been recalled and set aside
for utter lack of factual basis. It is the policy of the State to protect and
preserve marriage. Courts should be ever mindful of this policy and, hence,
must exercise prudence in evaluating petitions for declaration of
presumptive death of an absent spouse. Otherwise, spouses may easily
circumvent the policy of the laws on marriage by simply agreeing that one
of them leave the conjugal abode and never return again.

Republic v. Orcelino-Villanueva

Declaration of Presumptive Death; The well-founded belief in the

absentee’s death requires the present spouse to prove that his/her belief
was the result of diligent and reasonable efforts to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that
under the circumstances, the absent spouse is already dead.—Article 41 of
the Family Code provides that before a judicial declaration of presumptive
death may be granted, the present spouse must prove that he/she has a
well-founded belief that the absentee is dead. In this case, Edna failed. The
RTC and the CA overlooked Edna’s patent noncompliance with the said
requirement. The well-founded belief in the absentee’s death requires the
present spouse to prove that his/her belief was the result of diligent and
reasonable efforts to locate the absent spouse and that based on these
efforts and inquiries, he/she believes that under the circumstances, the
absent spouse is already dead. It necessitates exertion of active effort (not
a mere passive one). Mere absence of the spouse (even beyond the period
required by law), lack of any news that the absentee spouse is still alive,
mere failure to communicate, or general presumption of absence under the
Civil Code would not suffice. The premise is that Article 41 of the Family
Code places upon the present spouse the burden of complying with the
stringent requirement of “well-founded belief” which can only be discharged
upon a showing of proper and honest-to-goodness inquiries and efforts to
ascertain not only the absent spouse’s whereabouts but, more importantly,
whether the absent spouse is still alive or is already dead.

Applying the standard set forth by the Supreme Court (SC) in the
previously cited cases, particularly Republic v. Cantor, 712 SCRA 1 (2013),
Edna’s efforts failed to satisfy the required well-founded belief of her
absent husband’s death.—Applying the standard set forth by the Court in
the previously cited cases, particularly Republic v. Cantor, 712 SCRA 1
(2013), Edna’s efforts failed to satisfy the required well-founded belief of
her absent husband’s death. Her claim of making diligent search and
inquiries remained unfounded as it merely consisted of bare assertions
without any corroborative evidence on record. She also failed to present
any person from whom she inquired about the whereabouts of her
husband. She did not even present her children from whom she learned the
disappearance of her husband. In fact, she was the lone witness. Following
the basic rule that mere allegation is not evidence and is not equivalent to
proof, the Court cannot give credence to her claims that she indeed exerted
diligent efforts to locate her husband. Moreover, no document was
submitted to corroborate the allegation that her husband had been missing
for at least fifteen (15) years already. As the OSG observed, there was not
even any attempt to seek the aid of the authorities at the time her husband
disappeared. In Cantor, the present spouse claimed to have sought the aid
of the authorities or, at the very least, reported his absence to the police.
Yet, the Court denied her pleas.

c.1 Purpose of declaration of absence

Jones v. Hortiguela

 For the purposes of the civil marriage law, it is not necessary to have
the former spouse judicially declared an absentee. The declaration of
absence made in accordance with the provisions of the Civil Code
has for its sole purpose to enable the taking of the necessary
precautions for the administration of the estate of the absentee. For
the- celebration of civil marriage, however, the law only requires that
the former spouse has been absent for seven consecutive years at
 the time of the second marriage, that the spouse present does not
know his or her former spouse to be living, that such former spouse is
generally reputed to be dead and the spouse present so believes at
the time of the celebration of the marriage (section III, paragraph 2,
General Orders, No. 68).

 In accordance with the foregoing legal provision, the absence of M.

E.'s former husband should be counted from January 10, 1918, the
date on which the last news concerning A. W. J. was received, and
from said date to May 6, 1927, more than nine years elapsed. Said
marriage is, therefore, valid and lawful.

 PRESUMPTION OF DEATH UNDER THE CODE OF CIVIL

PROCEDURE.—According to section 334, No. 24, of the Code of
Civil Procedure, a person not heard from in seven years is presumed
to be dead.

c.2 Requisites for declaration of presumptive death

Republic v. Granada

Declaration of Presumptive Death; Requisites for the declaration of

presumptive death under the Family Code.—The four requisites for the
declaration of presumptive death under the Family Code are as follows: 1.
That the absent spouse has been missing for four consecutive years, or
two consecutive years if the disappearance occurred where there is danger
of death under the circumstances laid down in Article 391, Civil Code; 2.
That the present spouse wishes to remarry; 3. That the present spouse has
a well-founded belief that the absentee is dead; and 4. That the present
spouse files a summary proceeding for the declaration of presumptive
death of the absentee.

c.3 Instances and period to declare presumptive death

Republic v. Nolasco
Art. 41 of the Family Code has stricter requirements before absent spouse
may be declared presumably dead.—Under Article 41, the time required for
the presumption to arise has been shortened to four (4) years; however,
there is need for a judicial declaration of presumptive death to enable the
spouse present to remarry. Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil Code merely
requires either that there be no news that such absentee is still alive; or the
absentee is generally considered to be dead and believed to be so by the
spouse present, or is presumed dead under Article 390 and 391 of the Civil
Code. The Family Code, upon the other hand, prescribes a "well founded
belief' that the absentee is already dead before a petition for declaration of
presumptive death can be granted.

As pointed out by the Solicitor-General, there are four (4) requisites for the
declaration of presumptive death under Article 41 of the Family Code: "1.
That the absent spouse has been missing for four consecutive years, or
two consecutive years if the disappearance occurred where there is danger
of death under the circumstances laid down in Article 391, Civil Code; 2.
That the present spouse wishes to remarry; 3. That the present spouse has
a well-founded belief that the absentee is dead; and 4. That the present
spouse files a summary proceeding for the declaration of presumptive
death of the absentee."

Arts. 390-391, NCC and Arts. 55 (1), 101 of the FC

Arts. 390 of the NCC:

After an absence of seven years, it being unknown whether or not the

absentee still lives, he shall be presumed dead for all purposes, except for
those of succession.

The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years shall be sufficient in
order that his succession may be opened. (n)

Art. 391 of the NCC:

The following shall be presumed dead for all purposes, including the
division of the estate among the heirs: otiteo

(1) A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the loss of
the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been
missing for four years;

(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.

Art. 55(10) of the FC:

A petition for legal separation may be filed on any of the following

grounds:
(10) Abandonment of petitioner by respondent without justifiable
cause for more than one year.
Art. 101 of the FC:

If a spouse without just cause abandons the other or fails to comply

with his or her obligations to the family, the aggrieved spouse may
petition the court for receivership, for judicial separation of property or
for authority to be the sole administrator of the absolute community,
subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph

refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when her or she

has left the conjugal dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a period of three months
or has failed within the same period to give any information as to his
or her whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling.

c.4 Exceptions when subsequent marriage will not be void

Bienvenido v. CA

Exceptions when the subsequent marriage will not be considered void.—

Paragraph 2 mentions three cases when the subsequent marriage will not
be considered void: (1) when the absent spouse has not been heard from
for seven consecutive years and the present spouse has no news that
he/she is alive; (2) when, although he/she has been absent for less than
seven years, the absent spouse is generally considered to be dead and
believed to be by the spouse present; and (3) when he/she is presumed to
be dead after four years from the occurrence of any of the events
enumerated in Art. 391 of the Civil Code.

The first exception refers to the subsequent marriage of the abandoned

spouse and not the remarriage of the deserting spouse, after the period of
seven years has lapsed.—It has been held that the first exception refers to
the subsequent marriage of the abandoned spouse and not the remarriage
of the deserting spouse, after the period of seven years has lapsed. This
exception cannot be invoked in this case in order to sustain the validity of
Aurelio’s marriage to Luisita because apparently it was Aurelio who had left
his first wife. At the time of his second marriage to Luisita, he and Luisita
had already been living together as husband and wife for five years. In fact
the couple begot a child, in 1961, even before their marriage in 1962.

c.5 Rule and effect if absentee re-appears

SSS v. Jarque Vda. de Bailon

Under the Civil Code, a subsequent marriage being voidable as it was

contracted by the present spouse believing the absent spouse to be dead,
it is terminated by final judgment of annulment in a case instituted by the
absent spouse who reappears or by either of the spouses in the
subsequent marriage, while under the Family Code, no judicial proceeding
to annul a subsequent marriage is necessary as it is automatically
terminated by the recording of an affidavit of reappearance of the absent
spouse.—Under the Civil Code, a subsequent marriage being voidable, it is
terminated by final judgment of annulment in a case instituted by the
absent spouse who reappears or by either of the spouses in the
subsequent marriage. Under the Family Code, no judicial proceeding to
annul a subsequent marriage is necessary. x x x The termination of the
subsequent marriage by affidavit provided by the above-quoted provision of
the Family Code does not preclude the filing of an action in court to prove
the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage.

If the absentee reappears, but no step is taken to terminate the subsequent

marriage, either by affidavit or by court action, such absentee’s mere
reappearance, even if made known to the spouses in the subsequent
marriage, will not terminate such marriage.—If the absentee reappears, but
no step is taken to terminate the subsequent marriage, either by affidavit or
by court action, such absentee’s mere reappearance, even if made known
to the spouses in the subsequent marriage, will not terminate such
marriage. Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues
inspite of the spouse’s physical reappearance, and by fiction of law, he or
she must still be regarded as legally an absentee until the subsequent
marriage is terminated as provided by law.

Santos v. Santos

The filing of an affidavit of reappearance is an admission on the part of the

first spouse that his or her marriage to the present spouse was terminated
when he or she was declared absent or presumptively dead.—The Family
Code provides the presumptively dead spouse with the remedy of
terminating the subsequent marriage by mere reappearance. The filing of
an affidavit of reappearance is an admission on the part of the first spouse
that his or her marriage to the present spouse was terminated when he or
she was declared absent or presumptively dead. Moreover, a close reading
of the entire Article 42 reveals that the termination of the subsequent
marriage by reappearance is subject to several conditions: (1) the
nonexistence of a judgment annulling the previous marriage or declaring it
void ab initio; (2) recording in the civil registry of the residence of the
parties to the subsequent marriage of the sworn statement of fact and
circumstances of reappearance; (3) due notice to the spouses of the
subsequent marriage of the fact of reappearance; and (4) the fact of
reappearance must either be undisputed or judicially determined.

Mere reappearance will not terminate the subsequent marriage even if the
parties to the subsequent marriage were notified if there was “no step
taken to terminate the subsequent marriage, either by filing an affidavit of
reappearance or by court action.”—This court recognized the conditional
nature of reappearance as a cause for terminating the subsequent
marriage in Social Security System v. Vda. de Bailon, 485 SCRA 376
(2006). This court noted that mere reappearance will not terminate the
subsequent marriage even if the parties to the subsequent marriage were
notified if there was “no step . . . taken to terminate the subsequent
marriage, either by [filing an] affidavit [of reappearance] or by court
action[.]” “Since the second marriage has been contracted because of a
presumption that the former spouse is dead, such presumption continues
inspite of the spouse’s physical reappearance, and by fiction of law, he or
she must still be regarded as legally an absentee until the subsequent
marriage is terminated as provided by law.”

A subsequent marriage may also be terminated by filing “an action in court

to prove the reappearance of the absentee and obtain a declaration of
dissolution or termination of the subsequent marriage.”—The provision on
reappearance in the Family Code as a remedy to effect the termination of
the subsequent marriage does not preclude the spouse who was declared
presumptively dead from availing other remedies existing in law. This court
had, in fact, recognized that a subsequent marriage may also be
terminated by filing “an action in court to prove the reappearance of the
absentee and obtain a declaration of dissolution or termination of the
subsequent marriage.”

(d) Psychological Incapacity under Art. 36 of the FC

Art. 39, 68-71, FC, RA 8533

Art. 39 of the FC:

The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. (As amended by Executive Order 227 and Republic Act
No. 8533; The phrase “However, in case of marriage celebrated before the
effectivity of this Code and falling under Article 36, such action or defense
shall prescribe in ten years after this Code shall taken effect” has been
deleted by Republic Act No. 8533 [Approved February 23, 1998]).

Arts. 68 to 71 of the FC:

Art. 68. The husband and wife are obliged to live together, observe mutual
love, respect and fidelity, and render mutual help and support. (109a)

Art. 69. 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. (110a)

Art. 70. 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. (111a)

Art. 71. The management of the household shall be the right and the duty
of both spouses. The expenses for such management shall be paid in
accordance with the provisions of Article 70. (115a)

RA 8533: "AN ACT AMENDING TITLE I, CHAPTER 3, ARTICLE 39 OF

EXECUTIVE ORDER NO. 209, OTHERWISE KNOWN AS THE FAMILY
CODE OF THE PHILIPPINES, 'IFYING THE PRESCRIPTIVE PERIOD
FOR ACTION OR DEFENSES GROUNDED ON PSYCHOLOGICAL
INCAPACITY"

Section 1. Title I, Chapter 3, Article 39 of Executive Order No. 209,

otherwise known as theFamily Code of the Philippines, is hereby
amended to read as follows:
"TITLE I-MARRIAGE"

"CHAPTER 3 — VOID AND VOIDABLE MARRIAGES

"Art. 39. The action or defense for the declaration of absolute 'ity of a
marriage shall not prescribe."

Sec. 2. Effectivity clause. — This Act shall take effect after fifteen (15)
days following its publication in the Official Gazette or in two (2)
newspapers of general circulation.
 
Approved: February 23, 1998

d.1 Definition of Psychological Incapacity

Pesca v Pesca

“Psychological Incapacity,” Explained.—The term “psychological

incapacity,” as a ground for the declaration of nullity of a marriage under
Article 36 of the Family Code, has been explained by the Court in Santos
and reiterated in Molina. The Court, in Santos, concluded: “It should be
obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself,
that the use of the phrase ‘psychological incapacity under Article 36 of the
Code has not been meant to comprehend all such possible cases of
psychoses as, likewise mentioned by some ecclesiastical authorities,
extremely low intelligence, immaturity, and like circumstances (cited in Fr.
Artemio Balumad’s ‘Void and Voidable Marriages in the Family Code and
their Parallels in Canon Law,’ quoting from the Diagnostic Statistical
Manual of Mental Disorder by the American Psychiatric Association;
Edward Hudson’s ‘Handbook II for Marriage Nullity Cases’). Article 36 of
the Family Code cannot be taken and construed independently of, but must
stand in conjunction with, existing precepts in our law on marriage. Thus
correlated, ‘psychological incapacity’ should refer to no less than a mental
(not physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by Article
68 of the Family Code, include their mutual obligations to live together,
observe love, respect and fidelity and render help and support. There is
hardly any doubt that the intendment of the law has been to confine the
meaning of ‘psychological incapacity’ to the most serious cases of
personality disorders clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the marriage. This psychologic
condition must exist at the time the marriage is celebrated.”

d.2 Characteristics of Psychological Incapacity

Santos v. CA

Psychological incapacity must be characterized by a) gravity, b) juridical

antecedence, and c) incurability.—Justice Sempio-Diy cites with approval
the work of Dr. Gerardo Veloso, a former Presiding Judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila
(Branch I), who opines that psychological incapacity must be characterized
by (a) gravity, (b) juridical antecedence, and (c) incurability. 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 party involved.

The intendment of the law has been to confine the meaning of

“psychological incapacity” to the most serious cases of personality
disorders clearly demonstrative of an utter insensibility or inability to give
meaning and significance to the marriage.—There is hardly any doubt that
the intendment of the law has been to confine the meaning of
“psychological incapacity” to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage. This psychologic condition must
exist at the time the marriage is celebrated. The law does not evidently
envision, upon the other hand, an inability of the spouse to have sexual
relations with the other. This conclusion is implicit under Article 54 of the
Family Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be “legitimate.”

d.3 Scope of psychological incapacity

Dedel v. CA
Psychological Incapacity; There is hardly any doubt that the intendment of
the law has been to confine the meaning of “psychological incapacity” to
the most serious cases of personality disorders.—x x x “psychological
incapacity” should refer to no less than a mental (not physical) incapacity
that causes a party to be truly incognitive of the basic marital covenants
that concomitantly must be assumed and discharged by the parties to the
marriage which, as so expressed in Article 68 of the Family Code, include
their mutual obligations to live together, observe love, respect and fidelity
and render help and support. There is hardly any doubt that the intendment
of the law has been to confine the meaning of “psychological incapacity” to
the most serious cases of personality disorders clearly demonstrative of an
utter insensitivity or inability to give meaning and significance to the
marriage. This psychological condition must exist at the time the marriage
is celebrated. The law does not evidently envision, upon the other hand, an
inability of the spouse to have sexual relations with the other. This
conclusion is implicit under Article 54 of the Family Code which considers
children conceived prior to the judicial declaration of nullity of the void
marriage to be “legitimate.”

d.4 Sec. 7 of Art. 36 of the FC must be interpreted on a case-to-case

basis

Republic v. Dagdag

Psychological Incapacity; Whether or not psychological incapacity exists in

a given case calling for annulment of a marriage, depends crucially, more
than in any field of the law, on the facts of the case, and in regard to
psychological incapacity as a ground for annulment of marriage, it is trite to
say that no case is on “all fours” with another case.—Whether or not
psychological incapacity exists in a given case calling for annulment of a
marriage, depends crucially, more than in any field of the law, on the facts
of the case. Each case must be judged, not on the basis of a priori
assumptions, predilections or generalizations but according to its own facts.
In regard to psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on “all fours” with another case.
The trial judge must take pains in examining the factual milieu and the
appellate court must, as much as possible, avoid substituting its own
judgment for that of the trial court.

Yambao v. Republic

Court should interpret Article 36 of the Family Code on a case-to-case

basis, guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals.—
Preliminarily, the Court reiterates its recent pronouncement that each case
for declaration of nullity under the foregoing provision must be judged, not
on the basis of a priori assumptions, predilections, or generalizations, but
according to its own facts. And, to repeat for emphasis, courts should
interpret the provision on a case-to-case basis, guided by experience, the
findings of experts and researchers in psychological disciplines, and by
decisions of church tribunals. Judicial understanding of psychological
incapacity may be informed by evolving standards, taking into account the
particulars of each case, current trends in psychological and even
canonical thought, and experience.

d.5 Art. 36 of the FC is not to be confused with a divorce law

Ochosa v. Alano

Article 36 of the Family Code does not really dissolve a marriage; it simply
recognizes that there never was any marriage in the first place.—It is also
established in jurisprudence that from these requirements arise the concept
that Article 36 of the Family Code does not really dissolve a marriage; it
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.

Article 36 of the Family Code is not to be confused with a divorce law that
cuts the marital bond at the time the causes therefore manifest themselves.
—We have stressed time and again that Article 36 of the Family Code is
not to be confused with a divorce law that cuts the marital bond at the time
the causes therefore manifest themselves. It refers to a serious
psychological illness afflicting a party even before the celebration of the
marriage.

d.6 Heirs cannot file a petition for annulment of marriage. Reason.

Enrico v. Heirs of Sps. Medinaceli

The Rationale of the Rules on Annulment of Voidable Marriages and

Declaration of Absolute Nullity of Void Marriages, Legal Separation and
Provisional Orders explicates on Section 2(a) in the following manner, viz.:
1. Only an aggrieved or injured spouse may file petitions for annulment 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]—Only an
aggrieved or injured spouse may file a petition for annulment of voidable
marriages or declaration of absolute nullity of void marriages. Such petition
cannot be filed by compulsory or intestate heirs of the spouses or by the
State. The Committee 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 predecessor, 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 spouse filed in
the regular courts.—The Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute Nullity of Void Marriages, Legal
Separation and Provisional Orders explicates on Section 2(a) in the
following manner, viz.: 1. Only an aggrieved or injured spouse may file
petitions for annulment 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] Only an aggrieved or injured spouse may file a petition for
annulment of voidable marriages or declaration of absolute nullity of void
marriages. Such petition cannot be filed by compulsory or intestate heirs of
the spouses or by the State. The Committee 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 predecessor, 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
spouse filed in the regular courts. On the other hand, the concern of the
State is to preserve marriage and not to seek its dissolution. (Emphasis
supplied.)

d.7 Who may file a petition for annulment of marriage under Art. 45 of
the FC

Sec. 3, A.M. No. 02-11-10-SC dated March 7, 2003

Sec.  3. Petition for annulment of voidable marriages. - 

(a) Who may file. - The following persons may file a petition for annulment
of voidable marriage based on any of the grounds under Article 45 of
the Family Code and within the period herein indicated: chan robles virtual
law library
(1) The contracting party whose parent, or guardian, or person exercising
substitute parental authority did not give his or her consent, within five
years after attaining the age of twenty-one unless, after attaining the age of
twenty-one, such party freely cohabited with the other as husband or wife;
or the parent, guardian or person having legal charge of the contracting
party, at any time before such party has reached the age of twenty-
one; chan robles virtual law library
(2) The sane spouse who had no knowledge of the other's insanity; or by
any relative, 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, provided that the petitioner, after coming
to reason, has not freely cohabited with the other as husband or wife;
(3) The injured party whose consent was obtained by fraud, within five
years after the discovery of the fraud, provided that said party, with full
knowledge of the facts constituting the fraud, has not freely cohabited with
the other as husband or wife;
(4) The injured party whose consent was obtained by force, intimidation, or
undue influence, within five years from the time the force intimidation, or
undue influence disappeared or ceased, provided that the force,
intimidation, or undue influence having disappeared or ceased, said party
has not thereafter freely cohabited with the other as husband or wife;
(5) The injured party where the other spouse is physically incapable of
consummating the marriage with the other and such incapability continues
and appears to be incurable, within five years after the celebration of
marriage;
(6) The injured party where the other party was afflicted with a sexually-
transmissible disease found to be serious and appears to be incurable,
within five years after the celebration of marriage.

(b) Where to file. - The petition shall be filed in the Family Court.

d.8 Guidelines in the interpretation and application of Art. 36 of the FC

Republic v CA and Molina

Guidelines in the interpretation and application of Art. 36 of the Family

Code.—From their submissions and the Court’s own deliberations, the
following guidelines in the interpretation and application of Art. 36 of the
Family Code are hereby handed down for the guidance of the bench and
the bar: (1) 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 dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws cherish the validity
of marriage and unity of the family. Thus, our Constitution devotes an entire
Article on the Family, recognizing it “as the foundation of the nation.” It
decrees marriage as legally “inviolable,” thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage are to
be “protected” by the state.

Ochosa v Alano

“(1) 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 dissolution and nullity. This is
rooted in the fact that both our Constitution and our laws cherish the validity
of marriage and unity of the family. Thus, our Constitution devotes an entire
Article on the Family, recognizing it “as the foundation of the nation.” It
decrees marriage as legally “inviolable,” thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage are to
be “protected” by the state.

The Family Code echoes this constitutional edict on marriage and the
family and emphasizes their permanence, inviolability and solidarity.

(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 (d) clearly explained in the deci sion. Article 36 of the Family
Code requires that the incapacity must be psychological—not physical,
although its manifestations and/or symptoms may be physical. The
evidence must convince the court that the parties, or one of them, was
mentally or physically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such incapacity
need be given here so as not to limit the application of the provision under
the principle of ejusdem generis, nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists and
clinical psychologists.

(3)  The incapacity must be proven to be existing at “the time of the

celebration” of the marriage. The evidence must show that the illness was
existing when the parties exchanged their “I do’s.” The manifestation of the
illness need not be perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or clinically

permanent or incurable. Such incurability may be absolute or even relative
only in regard to the other spouse, not necessarily absolutely against
everyone of the same sex. Furthermore, such incapacity must be relevant
to the assumption of marriage obligations, not necessarily to those not
related to marriage, like the exercise of a profession or employment in a
job. Hence, a pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the disability of the
party to assume the essential obligations of marriage. Thus, “mild
characteriological peculiarities, mood changes, occasional emotional
outburst” cannot be accepted as root causes. The illness must be shown as
downright incapacity or inability, not a refusal, neglect or difficulty, much
less ill will. In other words, there is a natal or supervening disabling factor in
the person, an adverse integral element in the personality structure that
effectively incapacitates the person from really accepting and thereby
complying with the obligations essential to marriage.

(6) 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. Such non-complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the decision.

(7) 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. It is clear that Article 36 was
taken by the Family Code Revision Committee from Canon 1095 of the
New Code of Canon Law, which became effective in 1983 and which
provides:

“The following are incapable of contracting marriage: Those who are

unable to assume the essential obligations of marriage due to causes of
psychological nature.”

Since the purpose of including such provision in our Family Code 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. Ideally—subject to our law
on evidence—what is decreed as canonically invalid should also be
decreed civilly void.

This is one instance where, in view of the evident source and purpose of
the Family Code provision, contemporaneous religious interpretation is to
be given persuasive effect. Here, the State and the Church—while
remaining independent, separate and apart from each other—shall walk
together in synodal cadence towards the same goal of protecting and
cherishing marriage and the family as the inviolable base of the nation.

(8)  The trial court must order the prosecuting attorney or fiscal and the
Solicitor General to appear as counsel for the state. No decision shall be
handed down unless the Solicitor General issues a certification, which will
be quoted in the decision, briefly stating therein his reasons for his
agreement or opposition, as the case may be, to the petition. The Solicitor
General, along with the prosecuting attorney, shall submit to the court such
certification within fifteen (15) days from the date the case is deemed
submitted for resolution of the court. The Solicitor General shall discharge
the equivalent function of the defensor vinculi contemplated under Canon
1095.”

d.9 Psychological incapacity must be shown to be medically or

clinically permanent or incurable

Republic v CA and Molina

Root cause of psychological incapacity must be identified as a

psychological illness and its incapacitating nature fully explained. Expert
evidence may be given by qualified psychiatrists and clinical psychologists.
—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 (d) clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological—not physical,
although its manifestations and/or symptoms may be physical. The
evidence must convince the court that the parties, or one of them, was
mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have
given valid assumption thereof. Although no example of such incapacity
need be given here so as not to limit the application of the provision under
the principle of ejusdem generis, nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists and
clinical psychologists.

Such incapacity must be shown to be medically or clinically permanent or

incurable.—Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be absolute or even
relative only in regard to the other spouse, not necessarily absolutely
against everyone of the same sex. Furthermore, such incapacity must be
relevant to the assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or employment in a
job. Hence, a pediatrician may be effective in diagnosing illnesses of
children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.

d.10 No requirement that the respondent should be personally

examined by a psychologist

Marcos v Marcos

The guidelines do not require that a physician examine the person to be

declared psychologically incapacitated—what is important is the presence
of evidence that can adequately establish the party’s psychological
condition, for indeed, if the totality of evidence presented is enough to
sustain a finding of psychological incapacity, then actual medical
examination of the person concerned need not be resorted to.—In Republic
v. CA and Molina, the guidelines govern ing the application and the
interpretation of psychological incapacity referred to in Article 36 of the
Family Code were laid down by this Court as follows: x x x x x x x x x The
guidelines incorporate the three basic requirements earlier mandated by
the Court in Santos v. Court of Appeals: “psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.”
The foregoing guidelines do not require that a physician examine the
person to be declared psychologically incapacitated. In fact, the root cause
may be “medically or clinically identified.” What is important is the presence
of evidence that can adequately establish the party’s psychological
condition. For indeed, if the totality of evidence presented is enough to
sustain a finding of psychological incapacity, then actual medical
examination of the person concerned need not be resorted to.

Vinas v. Parel-Vinas

The lack of personal examination or assessment of the respondent by a

psychologist or psychiatrist is not necessarily fatal in a petition for the
declaration of nullity of marriage.—The lack of personal examination or
assessment of the respondent by a psychologist or psychiatrist is not
necessarily fatal in a petition for the declaration of nullity of marriage. “If the
totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of the person
concerned need not be resorted to.”

d.11 Award of moral and exemplary damages is improper in an

annulment of marriage based on psychological incapacity

Buenaventura v. CA

It is contradictory to characterize acts as a product of psychological

incapacity and hence beyond the control of the party because of an innate
inability while at the same time considering the same set of acts as willful.
—The Court of Appeals and the trial court considered the acts of the
petitioner after the marriage as proof of his psychological incapacity, and
therefore a product of his incapacity or inability to comply with the essential
obligations of marriage. Nevertheless, said courts considered these acts as
willful and hence as grounds for granting moral damages. It is contradictory
to characterize acts as a product of psychological incapacity, and hence
beyond the control of the party because of an innate inability, while at the
same time considering the same set of acts as willful. By declaring the
petitioner as psychologically incapacitated, the possibility of awarding moral
damages on the same set of facts was negated. The award of moral
damages should be predicated, not on the mere act of entering into the
marriage, but on specific evidence that it was done deliberately and with
malice by a party who had knowledge of his or her disability and yet willfully
concealed the same. No such evidence appears to have been adduced in
this case.

d.12 Definition of dependent personality disorder

Halili v. Santos-Halili

In Te, this Court defined dependent personality disorder as

[a] personality disorder characterized by a pattern of dependent and

submissive behavior. Such individuals usually lack self-esteem and
frequently belittle their capabilities; they fear criticism and are easily hurt by
others’ comments. At times they actually bring about dominance by others
through a quest for overprotection.

Dependent personality disorder usually begins in early adulthood.

Individuals who have this disorder may be unable to make everyday
decisions without advice or reassurance from others, may allow others to
make most of their important decisions (such as where to live), tend to
agree with people even when they believe they are wrong, have difficulty
starting projects or doing things on their own, volunteer to do things that are
demeaning in order to get approval from other people, feel uncomfortable
or helpless when alone and are often preoccupied with fears of being
abandoned.

d.13 Clinical features of a person with anti-social personality disorder

Camacho-Reyes v. Reyes

“Patients with antisocial personality disorder can often seem to be normal

and even charming and ingratiating. Their histories, however, reveal many
areas of disordered life functioning. Lying, truancy, running away from
home, thefts, fights, substance abuse, and illegal activities are typical
experiences that patients report as beginning in childhood. x x x Their own
explanations of their antisocial behavior make it seem mindless, but their
mental content reveals the complete absence of delusions and other signs
of irrational thinking. In fact, they frequently have a heightened sense of
reality testing and often impress observers as having good verbal
intelligence.

x x x Those with this disorder do not tell the truth and cannot be trusted to
carry out any task or adhere to any conventional standard of morality. x x x
A notable finding is a lack of remorse for these actions; that is, they appear
to lack a conscience.”

d.14 Abandonment and sexual infidelity, not a ground for annulment

of marriage

Republic v. CA

Abandonment of Conjugal Home; Infidelity; Abandonment was not one of

the grounds for the nullity of marriage under the Family Code; Sexual
infidelity was not a valid ground for the nullity of marriage under Article 36
of the Family Code.—The only fact established here, which Catalina even
admitted in her Answer, was her abandonment of the conjugal home to live
with another man. Yet, abandonment was not one of the grounds for the
nullity of marriage under the Family Code. It did not also constitute
psychological incapacity, it being instead a ground for legal separation
under Article 55(10) of the Family Code. On the other hand, her sexual
infidelity was not a valid ground for the nullity of marriage under Article 36
of the Family Code, considering that there should be a showing that such
marital infidelity was a manifestation of a disordered personality that made
her completely unable to discharge the essential obligations of marriage.

Mallilin v. Jamesolamin

Sexual infidelity or perversion and abandonment do not, by themselves,

constitute grounds for declaring a marriage void based on psychological
incapacity.—As correctly found by the CA, sexual infidelity or perversion
and abandonment do not, by themselves, constitute grounds for declaring a
marriage void based on psychological incapacity. Robert argues that the
series of sexual indiscretion of Luz were external manifestations of the
psychological defect that she was suffering within her person, which could
be considered as nymphomania or “excessive sex hunger.” Other than his
allegations, however, no other convincing evidence was adduced to prove
that these sexual indiscretions were considered as nymphomania, and that
it was grave, deeply rooted, and incurable within the term of psychological
incapacity embodied in Article 36. To stress, Robert’s testimony alone is
insufficient to prove the existence of psychological incapacity.

d. 15 Examples of psychological incapacity

Chi Ming Tsoi v. CA

Evidently, one of the essential marital obligations under the Family Code is
"To procreate children based on the universal principle that procreation of
children through sexual cooperation is the basic end of marriage." Constant
non-fulfillment of this obligation will finally destroy the integrity or wholeness
of the marriage. In the case at bar, the senseless and protracted refusal of
one of the parties to fulfill the above marital obligation is equivalent to
psychological incapacity.

Antonio v. Reyes

The root causes of respondent’s psychological incapacity has been

medically or clinically identified and proven by experts as perennially telling
lies, fabricating ridiculous stories and inventing personalities and situations,
of writing letters to petitioner using fictitious names, and of lying about her
actual occupation, income, educational attainment and family background,
among others.—The root cause of respondent’s psychological incapacity
has been medically or clinically identified, alleged in the complaint,
sufficiently proven by experts, and clearly explained in the trial court’s
decision. The initiatory complaint alleged that respondent, from the start,
had exhibited unusual and abnormal behavior “of peren[n]ially telling lies,
fabricating ridiculous stories, and inventing personalities and situations,” of
writing letters to petitioner using fictitious names, and of lying about her
actual occupation, income, educational attainment, and family background,
among others.
Ngo Te v. Yu-Te

Declaration of Nullity; Judgments; In hindsight, it may have been

inappropriate for the Court to impose a rigid set of rules, as the one in
Republic v. Court of Appeals and Molina, 268 SCRA 198 (1997), in
resolving all cases of psychological incapacity; The unintended
consequences of Molina has taken its toll on people who have to live with
deviant behavior, moral insanity and sociopathic personality anomaly,
which, like termites, consume little by little the very foundation of their
families, our basic social institutions—far from what was intended by the
Court, Molina has become a strait-jacket, forcing all sizes to fit into and be
bound by it.—In hindsight, it may have been inappropriate for the Court to
impose a rigid set of rules, as the one in Molina, in resolving all cases of
psychological incapacity. Understandably, the Court was then alarmed by
the deluge of petitions for the dissolution of marital bonds, and was
sensitive to the OSG’s exaggeration of Article 36 as the “most liberal
divorce procedure in the world.” The unintended consequences of Molina,
however, has taken its toll on people who have to live with deviant
behavior, moral insanity and sociopathic personality anomaly, which, like
termites, consume little by little the very foundation of their families, our
basic social institutions. Far from what was intended by the Court, Molina
has become a strait-jacket, forcing all sizes to fit into and be bound by it.
Wittingly or unwittingly, the Court, in conveniently applying Molina, has
allowed diagnosed sociopaths, schizophrenics, nymphomaniacs,
narcissists and the like, to continuously debase and pervert the sanctity of
marriage. Ironically, the Roman Rota has annulled marriages on account of
the personality disorders of the said individuals.

Azcueta v. Republic

In regard to psychological incapacity as a ground for annulment of

marriage, it is trite to say that no case is on “all fours” with another case.—
In more recent jurisprudence, we have observed that notwithstanding the
guidelines laid down in Molina, there is a need to emphasize other
perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36. Each case must be judged, not on
the basis of a priori assumptions, predilections or generalizations but
according to its own facts. In regard to psychological incapacity as a
ground for annulment of marriage, it is trite to say that no case is on “all
fours” with another case. The trial judge must take pains in examining the
factual milieu and the appellate court must, as much as possible, avoid
substituting its own judgment for that of the trial court. With the advent of
Te v. Yu-Te (579 SCRA 193 [2009]), the Court encourages a
reexamination of jurisprudential trends on the interpretation of Article 36
although there has been no major deviation or paradigm shift from the
Molina doctrine.

One who is unable to support himself, much less a wife; one who cannot
independently make decisions regarding even the most basic and ordinary
matters that spouses face everyday; one who cannot contribute to the
material, physical and emotional well-being of his spouse is psychologically
incapacitated to comply with the marital obligations within the meaning of
Article 36.—Rodolfo is evidently unable to comply with the essential marital
obligations embodied in Articles 68 to 71 of the Family Code. As noted by
the trial court, as a result of Rodolfo’s dependent personality disorder, he
cannot make his own decisions and cannot fulfill his responsibilities as a
husband. Rodolfo plainly failed to fulfill the marital obligations to live
together, observe mutual love, respect, support under Article 68. Indeed,
one who is unable to support himself, much less a wife; one who cannot
independently make decisions regarding even the most basic and ordinary
matters that spouses face everyday; one who cannot contribute to the
material, physical and emotional well-being of his spouse is psychologically
incapacitated to comply with the marital obligations within the meaning of
Article 36.

(e) Incestuous marriages

Art. 37, FC cf. Arts. 963-967 of NCC

Art. 37 of the FC. 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. 

NCC

Art. 963. Proximity of relationship is determined by the number of

generations. Each generation forms a degree. (915)

ART. 964. A series of degrees forms a line, which may be either direct or
collateral.

A direct line is that constituted by the series of degrees among ascendants

and descendants.

A collateral line is that constituted by the series of degrees among persons

who are not ascendants and descendants, but who come from a common
ancestor. (916a) ARTICLE 965. The direct line is either descending or
ascending.

The former unites the head of the family with those who descend from him.

The latter binds a person with those from whom he descends. (917)

ART. 966. In the line, as many degrees are counted as there are
generations or persons, excluding the progenitor.

In the direct line, ascent is made to the common ancestor. Thus, the child is
one degree removed from the parent, two from the grandfather, and three
from the great-grandparent.

In the collateral line, ascent is made to the common ancestor and then
descent is made to the person with whom the computation is to be made.
Thus, a person is two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first cousin, and so
forth. (918a)

ART. 967. Full blood relationship is that existing between persons who
have the same father and the same mother.
Half blood 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. 

(f) Marriages against public policy

Art. 38(6)of the FC:

The following marriages shall be void from the beginning for reasons of
public policy:

(6) Between the surviving spouse of the adopted child and the adopter;

Art. 80 of the FC:

In the absence of a contrary stipulation in a marriage settlement, the

property relations of the spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the marriage and their
residence.

This rule shall not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not
situated in the Philippines and executed in the country where the property
is located; and

(3) With respect to the extrinsic validity of contracts entered into in the
Philippines but affecting property situated in a foreign country whose laws
require different formalities for its extrinsic validity. 

Art. 246 of the RPC:

Parricide. — Any person who shall kill his father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants, or descendants, or his
spouse, shall be guilty of parricide and shall be punished by the penalty of
reclusión perpetua to death.

2. Who can invoke nullity

2.1 Void marriages can be questioned even after the death of either
party

Ninal v. Bayadog

Void marriages can be questioned even after the death of either party but
voidable marriages 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 Code is silent
as to who can file a petition to declare the nullity of a marriage. Voidable
and void marriages are not identical. A marriage that is annulable is valid
until otherwise declared by the court; whereas a marriage that is void ab
initio is considered as having never to have taken place and cannot be the
source of rights. The first can be generally ratified or confirmed by free
cohabitation or prescription while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in a direct proceeding while
a void marriage can be attacked collaterally. Consequently, void marriages
can be questioned even after the death of either party but voidable
marriages 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. That is why the action or
defense for nullity is imprescriptible, unlike voidable marriages where the
action prescribes. Only the parties to a voidable marriage can assail it but
any proper interested party may attack a void marriage.

2.2 Must be filed by real party in interest

Amor-Catalan v. CA

A petition to declare the nullity of marriage, like any other actions, must be
prosecuted or defended in the name of the real party in interest and must
be based on a cause of action.—True, under the New Civil Code which is
the law in force at the time the respondents were married, or even in the
Family Code, there is no specific provision as to who can file a petition to
declare the nullity of marriage; however, only a party who can demonstrate
“proper interest” can file the same. A petition to declare the nullity of
marriage, like any other actions, must be prosecuted or defended in the
name of the real party in interest and must be based on a cause of action.
Thus, in Niñal v. Bayadog, 328 SCRA 122 (2000), the Court held that the
children have the personality to file the petition to declare the nullity of the
marriage of their deceased father to their stepmother as it affects their
successional rights.

2.3 Rationale of A.M. No. 02-11-10-SC

The Rationale of the Rules on Annulment of Voidable Marriages and

Declaration of Absolute Nullity of Void Marriages, Legal Separation and
Provisional Orders explicates on Section 2(a) in the following manner, viz.:
1. Only an aggrieved or injured spouse may file petitions for annulment 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]—Only an
aggrieved or injured spouse may file a petition for annulment of voidable
marriages or declaration of absolute nullity of void marriages. Such petition
cannot be filed by compulsory or intestate heirs of the spouses or by the
State. The Committee 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 predecessor, 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 spouse filed in
the regular courts.—The Rationale of the Rules on Annulment of Voidable
Marriages and Declaration of Absolute Nullity of Void Marriages, Legal
Separation and Provisional Orders explicates on Section 2(a) in the
following manner, viz.: 1. Only an aggrieved or injured spouse may file
petitions for annulment 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] Only an aggrieved or injured spouse may file a petition for
annulment of voidable marriages or declaration of absolute nullity of void
marriages. Such petition cannot be filed by compulsory or intestate heirs of
the spouses or by the State. The Committee 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 predecessor, 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
spouse filed in the regular courts. On the other hand, the concern of the
State is to preserve marriage and not to seek its dissolution. (Emphasis
supplied.)

2.4 Must be filed solely by either husband or wife

Carlos v. Sandoval

Declaration of Nullity of Marriages; Parties; Section 2(a) of the Rule on

Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages makes it the sole right of the husband or the wife to file
a petition for declaration of absolute nullity of void marriage.—Under the
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages, the petition for declaration of absolute nullity of
marriage may not be filed by any party outside of the marriage. The Rule
made it exclusively a right of the spouses by stating: SEC. 2. Petition for
declaration of absolute nullity of void marriages.—(a) Who may file.—A
petition for declaration of absolute nullity of void marriage may be filed
solely by the husband or the wife. Section 2(a) of the Rule makes it the sole
right of the husband or the wife to file a petition for declaration of absolute
nullity of void marriage.

2.5 Surviving spouse must be impleaded

Ablaza v. Republic

The surviving spouse must be impleaded in an action for the declaration of

nullity of a marriage since he or she is an indispensable party—such
party’s absence renders all subsequent actions of the court null and void
for want of authority to act, not only as to the absent parties but even  as to
those present.—We note that the petitioner did not implead Leonila, who,
as the late Cresenciano’s surviving wife, stood to be benefited or
prejudiced by the nullification of her own marriage. It is relevant to observe,
moreover, that not all marriages celebrated under the old Civil Code
required a marriage license for their validity; hence, her participation in this
action is made all the more necessary in order to shed light on whether the
marriage had been celebrated without a marriage license and whether the
marriage might have been a marriage excepted from the requirement of a
marriage license. She was truly an indispensable party who must be joined
herein: x x x under any and all conditions, [her] presence being a sine qua
non for the exercise of judicial power. It is precisely “when an indispensable
party is not before the court [that] the action should be dismissed. The
absence of an indispensable party renders all subsequent actions of the
court null and void for want of authority to act, not only as to the absent
parties but even as to those present.

3. Prescriptive period to file action for declaration of nullity

Art. 39 of the FC:

The action or defense for the declaration of absolute nullity of a marriage

shall not prescribe. (As amended by Executive Order 227 and Republic Act
No. 8533; The phrase “However, in case of marriage celebrated before the
effectivity of this Code and falling under Article 36, such action or defense
shall prescribe in ten years after this Code shall taken effect” has been
deleted by Republic Act No. 8533 [Approved February 23, 1998]).

4. Procedure in actions for declaration of nullity

a. Collusion, Art. 48 of the FC

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.

a.1 Guidelines in the interpretation of Art. 48

Ancheta v. Ancheta
Guidelines in the interpretation and application of Article 48 of the Family
Code.—In the case of Republic v.Court of Appeals, this Court laid down the
guidelines in the interpretation and application of Art. 48 of the Family
Code, one of which concerns the role of the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the State: (8) The trial
court must order the prosecuting attorney or fiscal and the Solicitor General
to appear as counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in
the decision, briefly stating therein his reasons for his agreement or
opposition, as the case may be, to the petition. The Solicitor General, along
with the prosecuting attorney, shall submit to the court such certification
within fifteen (15) days from the date the case is deemed submitted for
resolution of the court. The Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon 1095.

a.2 Investigation by prosecutor needed; purpose

Tuazon v. Tuazon

A grant of annulment of marriage or legal separation by default is fraught

with the danger of collusion, hence, in all cases for annulment, declaration
of nullity of marriage and legal separation, the prosecuting attorney or fiscal
is ordered to appear on behalf of the state for the purpose of preventing
any collusion between the parties and to take care that their evidence is not
fabricated or suppressed.—A grant of annulment of marriage or legal
separation by default is fraught with the danger of collusion. Hence, in all
cases for annulment, declaration of nullity of marriage and legal separation,
the prosecuting attorney or fiscal is ordered to appear on behalf of the state
for the purpose of preventing any collusion between the parties and to take
care that their evidence is not fabricated or suppressed. If the defendant
spouse fails to answer the complaint, the court cannot declare him or her in
default but instead, should order the prosecuting attorney to determine if
collusion exists between the parties. The prosecuting attorney or fiscal may
oppose the application for legal separation or annulment through the
presentation of his own evidence, if in his opinion, the proof adduced is
dubious and fabricated. Tuason vs. Court of Appeals, 256 SCRA 158, G.R.
No. 116607 April 10, 1996

b. Confession of judgment not allowed, Art. 48 of the FC cf. Art. 2035

of NCC
Art. 48 of FC:

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.

Art. 2035 of the NCC:

No compromise upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;

(3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts;

(6) Future legitime. 

c. The OSG represents government in hearings. Prosecutors are

deputized.

Republic v. CA

Trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state.—The trial court must order the
prosecuting attorney or fiscal and the Solicitor General to appear as
counsel for the state. No decision shall be handed down unless the
Solicitor General issues a certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement or opposition, as the
case may be, to the petition. The Solicitor General, along with the
prosecuting attorney, shall submit to the court such certification within
fifteen (15) days from the date the case is deemed submitted for resolution
of the court. The Solicitor General shall discharge the equivalent function of
the defensor vinculi contemplated under Canon 1095. Republic vs. Court of
Appeals, 268 SCRA 198, G.R. No. 108763 February 13, 1997
Malcampo-Sin v Sin

The protection of marriage as a sacred institution requires not just the

defense of a true and genuine union but the exposure of an invalid one as
well.—It can be argued that since the lower court dismissed the petition,
the evil sought to be prevented (i.e., dissolution of the marriage) did not
come about, hence, the lack of participation of the State was cured. Not so.
The task of protecting marriage as an inviolable social institution requires
vigilant and zealous participation and not mere pro-forma compliance. The
protection of marriage as a sacred institution requires not just the defense
of a true and genuine union but the exposure of an invalid one as well. This
is made clear by the following pronouncement: “(8) The trial court must
order the prosecuting attorney or fiscal and the Solicitor General to appear
as counsel for the state. No decision shall be handed down unless the
Solicitor General issues a certification, which will be quoted in the decision,
briefly stating therein his reasons for his agreement or opposition as the
case may be, to the petition. The Solicitor General shall discharge the
equivalent function of the defensor vinculi contemplated under Canon 1095
(italics ours).” Malcampo-Sin vs. Sin, 355 SCRA 285, G.R. No. 137590
March 26, 2001

5. Effects of pendency of action for declaration of nullity

Arts. 49, 198 of the FC

Art. 49. 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. 198. During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses and their
children shall be supported from the properties of the absolute community
or the conjugal partnership. After the final judgment granting the petition,
the obligation of mutual support between the spouses ceases. However, in
case of legal separation, the court may order that the guilty spouse shall
give support to the innocent one, specifying the terms of such order. 
I. VOIDABLE MARRIAGES
1. Distinction between void and voidable marriages

1.1 Types of defective marriages

Corpuz v. Sto. Tomas

The Family Code recognizes only two types of defective marriages—void

and voidable marriages—and in both cases, the basis for the judicial
declaration of absolute nullity or annulment of the marriage exists before or
at the time of the marriage; Divorce contemplates the dissolution of the
lawful union for cause arising after the marriage.—The Family Code
recognizes only two types of defective marriages—void and voidable
marriages. In both cases, the basis for the judicial declaration of absolute
nullity or annulment of the marriage exists before or at the time of the
marriage. Divorce, on the other hand, contemplates the dissolution of the
lawful union for cause arising after the marriage. Our family laws do not
recognize absolute divorce between Filipino citizens.

2. Grounds for annulment

Arts. 4, 5, 14, 45(1), 47(1), 35(1) of the FC cf. RA 6809

FC

Art. 4. The absence of any of the essential or formal requisites shall render
the marriage void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable. (n)

Art. 5. Any male or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37 and 38, may
contract marriage. 

Art. 14. In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen
and twenty-one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of
their father, mother, surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. Such consent shall be manifested
in writing by the interested party, who personally appears before the proper
local civil registrar, or in the form of an affidavit made in the presence of
two witnesses and attested before any official authorized by law to
administer oaths. The personal manifestation shall be recorded in both
applications for marriage license, and the affidavit, if one is executed
instead, shall be attached to said applications. 

Art. 45. 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;

Art. 47. 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;

Art. 35. 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;

RA 6809:

Section 1. Article 234 of Executive Order No. 209, the Family Code of the
Philippines, is hereby amended to read as follows:

    "Art. 234.Emancipation takes place by the attainment of

majority. Unless otherwise provided, majority commences at the age of
eighteen years."
Sec. 2. Articles 235 and 237 of the same Code are hereby repealed.
Sec.  3. Article 236 of the same Code is also hereby amended to read as
follows:

    "Art. 236.Emancipation shall terminate parental authority over the

person and property of the child who shall then be qualified and
responsible for all acts of civil life, save the exceptions established by
existing laws in special cases.

    "Contracting marriage shall require parental consent until the age of
twenty-one.
    "Nothing in this Code shall be construed to derogate from the duty or
responsibility of parents and guardians for children and wards below
twenty-one years of age mentioned in the second and third paragraphs of
Article 2180 of the Civil Code."

Sec.  4. Upon the effectivity of this Act, existing wills, bequests, donations,
grants, insurance policies and similar instruments containing references
and provisions favorable to minors will not retroact to their prejudice.

Sec.  5. This Act shall take effect upon completion of its publication in at
least two (2) newspapers of general circulation.

Approved: December 13, 1989

(b) Insanity

Arts. 45(2), 47(2) of the FC

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

(2) That either party was of unsound mind, unless such party after coming
to reason, freely cohabited with the other as husband and wife;

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:

(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;

Suntay v. Cojuangco-Suntay

A void marriage is deemed never to have taken place at all.—The

fundamental distinction between void and voidable marriages is that a void
marriage is deemed never to have taken place at all. The effects of void
marriages, with respect to property relations of the spouses are provided
for under Article 144 of the Civil Code. Children born of such marriages
who are called natural children by legal fiction have the same status, rights
and obligations as acknowledged natural children under Article 89
irrespective of whether or not the parties to the void marriage are in good
faith or in bad faith.

A voidable marriage is considered valid and produces all its civil effects.—A
voidable marriage, is considered valid and produces all its civil effects, until
it is set aside by final judgment of a competent court in an action for
annulment. Juridically, the annulment of a marriage dissolves the special
contract as if it had never been entered into but the law makes express
provisions to prevent the effects of the marriage from being totally wiped
out. The status of children born in voidable marriages is governed by the
second paragraph of Article 89. x x x Stated otherwise, the annulment of
“the marriage by the court abolishes the legal character of the society
formed by the putative spouses, but it cannot destroy the juridical
consequences which the marital union produced during its continuance.”

(c) Fraud

Arts. 45(3), 46, 47(3) of the FC:

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

(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;

Art. 46. 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. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:

(3) For causes mentioned in number 3 of Article 45, by the injured party,
within five years after the discovery of the fraud;

Arts. 1338-1344 of the NCC

ARTICLE 1338. There is fraud when, through insidious words or

machinations of one of the contracting parties, the other is induced to enter
into a contract which, without them, he would not have agreed to. (1269)

ARTICLE 1339. Failure to disclose facts, when there is a duty to reveal

them, as when the parties are bound by confidential relations, constitutes
fraud. (n)

ARTICLE 1340. The usual exaggerations in trade, when the other party
had an opportunity to know the facts, are not in themselves fraudulent. (n)

ARTICLE 1341. A mere expression of an opinion does not signify fraud,

unless made by an expert and the other party has relied on the former’s
special knowledge. (n)
ARTICLE 1342. Misrepresentation by a third person does not vitiate
consent, unless such misrepresentation has created substantial mistake
and the same is mutual. (n)

ARTICLE 1343. Misrepresentation made in good faith is not fraudulent but

may constitute error. (n)

ARTICLE 1344. In order that fraud may make a contract voidable, it should
be serious and should not have been employed by both contracting parties.

Incidental fraud only obliges the person employing it to pay damages. 

c.1. Concealment of pregnancy

Aquino v. Delizo

CONCEALMENT OF PREGNANCY AT TIME OF MARRIAGE

CONSTITUTES FRAUD AS GROUND FOR ANNULMENT.—Concealment
by the wife of the fact that at the time of the marriage, she was pregnant by
a man other than her husband constitutes fraud and is a ground for
annulment of marriage (Art. 85, par. (4) in relation to Art. 86, par. (3), New
Civil Code).

c.2 Non-disclosure of husband’s pre-marital relationship

Anaya v. Palaroan

Non-disclosure of a husband's premarital relationship, not a fraud.—Non-

disclosure of a husband's pre-marital relationship with another woman is
not one of the enumerated circumstances that would constitute a ground
for annulment; and it is further excluded by the last paragraph of Article 86,
Civil Code. While a woman may detest such non-disclosure of premarital
lewdness or feel having been thereby cheated into giving her consent to
the marriage, nevertheless the law does not assuage her grief after her
consent was solemnly given, for upon marriage she entered into an
institution in which society, and not herself alone, is interested. The
lawmaker's intent being plain, the Court's duty is to give effect to the same,
whether it agrees with the rule or not.

c.3 Concealment of homosexuality

Almelor v. RTC Las Pinas

A marriage may be annulled when the consent of either party was obtained
by fraud, such as concealment of homosexuality; It is the concealment of
homosexuality, and not homosexuality per se, that vitiates the consent of
the innocent party.—Even assuming, ex gratia argumenti, that Manuel is a
homosexual, the lower court cannot appreciate it as a ground to annul his
marriage with Leonida. The law is clear—a marriage may be annulled when
the consent of either party was obtained by fraud, such as concealment of
homosexuality. Nowhere in the said decision was it proven by
preponderance of evidence that Manuel was a homosexual at the onset of
his marriage and that he deliberately hid such fact to his wife. It is the
concealment of homosexuality, and not homosexuality per se, that vitiates
the consent of the innocent party. Such concealment presupposes bad faith
and intent to defraud the other party in giving consent to the marriage.

(d) Alcoholism and perversion not grounds for annulment

Hernandez v CA

Private respondent’s alleged habitual alcoholism, sexual infidelity or

perversion, and abandonment do not by themselves constitute grounds for
finding that he is suffering from a psychological incapacity within the
contemplation of the Family Code.—Private respondent’s alleged habitual
alcoholism, sexual infidelity or perversion, and abandonment do not by
themselves constitute grounds for finding that he is suffering from a
psychological incapacity within the contemplation of the Family Code. It
must be shown that these acts are manifestations of a disordered
personality which make private respondent completely unable to discharge
the essential obligations of the marital state, and not merely due to private
respondent’s youth and self-conscious feeling of being handsome, as the
appellate court held.

(e) Force, intimidation, and undue influence

Arts. 45(4), 47(4) of FC

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(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;

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:

(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;

Arts. 1335-1337 of NCC

ARTICLE 1335. There is violence when in order to wrest consent, serious

or irresistible force is employed.

There is intimidation when one of the contracting parties is compelled by a

reasonable and well-grounded fear of an imminent and grave evil upon his
person or property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent.

To determine the degree of intimidation, the age, sex and condition of the
person shall be borne in mind.

A threat to enforce one’s claim through competent authority, if the claim is

just or legal, does not vitiate consent. (1267a)

ARTICLE 1336. Violence or intimidation shall annul the obligation, although

it may have been employed by a third person who did not take part in the
contract. (1268)

ARTICLE 1337. There is undue influence when a person takes improper

advantage of his power over the will of another, depriving the latter of a
reasonable freedom of choice. The following circumstances shall be
considered: the confidential, family, spiritual and other relations between
the parties, or the fact that the person alleged to have been unduly
influenced was suffering from mental weakness, or was ignorant or in
financial distress.

Art. 344, last par. Of the RPC:

In cases of seduction, abduction, acts of lasciviousness and rape, the
marriage of the offender with the offended party shall extinguish the
criminal action or remit the penalty already imposed upon him. The
provisions of this paragraph shall also be applicable to the co-principals,
accomplices and accessories after the fact of the abovementioned crimes.

(f) Physical Incapacity/impotence

Art. 45(5) of the FC:

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

(5) That either party was physically incapable of consummating the

marriage with the other, and such incapacity continues and appears to be
incurable;

Jimenez v Republic

PRESUMPTION OF POTENCY; HUSBAND'S LONE TESTIMONY

INSUFFICIENT.—The presumption is in favor of potency. The lone
testimony of the husband that his wife is physically incapable of sexual
intercourse is insufficient to tear asunder the ties that have bound them
together as husband and wife.

Alcazar v. Alcazar

Article 45(5) of the Family Code refers to lack of power to copulate.

[16]
Incapacity to consummate denotes the permanent inability on the part of
the spouses to perform the complete act of sexual intercourse. [17] Non-
consummation of a marriage may be on the part of the husband or of the
wife and may be caused by a physical or structural defect in the anatomy of
one of the parties or it may be due to chronic illness and inhibitions or fears
arising in whole or in part from psychophysical conditions. It may be caused
by psychogenic causes, where such mental block or disturbance has the
result of making the spouse physically incapable of performing the
marriage act.[18]

f.1 Lack of cohabitation not a ground for annulment

Villanueva v. CA
Lack of cohabitation is, per se, not a ground to annul a marriage.
Otherwise, the validity of a marriage will depend upon the will of the
spouses who can terminate the marital union by refusing to cohabitate.—
As to the second assignment of error, appellant cannot claim that his
marriage should be annulled due to the absence of cohabitation between
him and his wife. Lack of cohabitation is, per se, not a ground to annul a
marriage. Otherwise, the validity of a marriage will depend upon the will of
the spouses who can terminate the marital union by refusing to cohabitate.
The failure to cohabit becomes relevant only if it arises as a result of the
perpetration of any of the grounds for annulling the marriage, such as lack
of parental consent, insanity, fraud, intimidation, or undue influence x x x.
Since the appellant failed to justify his failure to cohabit with the appellee
on any of those grounds, the validity of his marriage must be upheld.

(g) Marriage in jest

Republic v. Albios

A marriage in jest is a pretended marriage, legal in form but entered into as

a joke, with no real intention of entering into the actual marriage status, and
with a clear understanding that the parties would not be bound; Marriages
in jest are void ab initio, not for vitiated, defective, or unintelligent consent,
but for a complete absence of consent.―In ruling that Albios’ marriage was
void for lack of consent, the CA characterized such as akin to a marriage
by way of jest. A marriage in jest is a pretended marriage, legal in form but
entered into as a joke, with no real intention of entering into the actual
marriage status, and with a clear understanding that the parties would not
be bound. The ceremony is not followed by any conduct indicating a
purpose to enter into such a relation. It is a pretended marriage not
intended to be real and with no intention to create any legal ties
whatsoever, hence, the absence of any genuine consent. Marriages in jest
are void ab initio, not for vitiated, defective, or unintelligent consent, but for
a complete absence of consent. There is no genuine consent because the
parties have absolutely no intention of being bound in any way or for any
purpose.

3. Who and when can one seek annulment of marriage

Art. 47 FC:
Art. 47. 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 Article 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.

Sec. 3, A.M. No. 02-11-10-SC

Sec. 3, A.M. No. 02-11-10-SC dated March 7, 2003

Sec.  3. Petition for annulment of voidable marriages. - 

(a) Who may file. - The following persons may file a petition for annulment
of voidable marriage based on any of the grounds under Article 45 of
the Family Code and within the period herein indicated: chan robles virtual
law library
(1) The contracting party whose parent, or guardian, or person exercising
substitute parental authority did not give his or her consent, within five
years after attaining the age of twenty-one unless, after attaining the age of
twenty-one, such party freely cohabited with the other as husband or wife;
or the parent, guardian or person having legal charge of the contracting
party, at any time before such party has reached the age of twenty-
one; chan robles virtual law library
(2) The sane spouse who had no knowledge of the other's insanity; or by
any relative, 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, provided that the petitioner, after coming
to reason, has not freely cohabited with the other as husband or wife;
(3) The injured party whose consent was obtained by fraud, within five
years after the discovery of the fraud, provided that said party, with full
knowledge of the facts constituting the fraud, has not freely cohabited with
the other as husband or wife;
(4) The injured party whose consent was obtained by force, intimidation, or
undue influence, within five years from the time the force intimidation, or
undue influence disappeared or ceased, provided that the force,
intimidation, or undue influence having disappeared or ceased, said party
has not thereafter freely cohabited with the other as husband or wife;
(5) The injured party where the other spouse is physically incapable of
consummating the marriage with the other and such incapability continues
and appears to be incurable, within five years after the celebration of
marriage;
(6) The injured party where the other party was afflicted with a sexually-
transmissible disease found to be serious and appears to be incurable,
within five years after the celebration of marriage.

(b) Where to file. - The petition shall be filed in the Family Court.

4. Procedure in actions for annulment; venue (for OFW) and the need
for an expert witness

Art. 48 of the FC:

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. 

Barcelona v CA

Rules on Declaration of Absolute Nullity of Void Marriages and Annulment

of Voidable Marriages; The obvious effect of the new Rules providing that
“expert opinion need not be alleged” in the petition is that there is also no
need to allege the root cause of the psychological incapacity—only experts
in the fields of neurological and behavioral sciences are competent to
determine the root cause of psychological incapacity.—Procedural rules
apply to actions pending and unresolved at the time of their passage. The
obvious effect of the new Rules providing that “expert opinion need not be
alleged” in the petition is that there is also no need to allege the root cause
of the psychological incapacity. Only experts in the fields of neurological
and behavioral sciences are competent to determine the root cause of
psychological incapacity. Since the new Rules do not require the petition to
allege expert opinion on the psychological incapacity, it follows that there is
also no need to allege in the petition the root cause of the psychological
incapacity. Science continues to explore, examine and explain how our
brains work, respond to and control the human body. Scientists still do not
understand everything there is to know about the root causes of
psychological disorders. The root causes of many psychological disorders
are still unknown to science even as their outward, physical manifestations
are evident. Hence, what the new Rules require the petition to allege are
the physical manifestations indicative of psychological incapacity.
Respondent Tadeo’s second petition complies with this requirement.

Office of the Court Administrator v Flores

In petitions for declaration of nullity of void marriages, the applicable rule is

A.M. No. 02-11-10-SC, as amended. In particular, Section 4 categorically
states the venue where a petition shall be filed.—In petitions for declaration
of nullity of void marriages, the applicable rule is A.M. No. 02-11-10-SC, as
amended. In particular, Section 4 categorically states the venue where a
petition shall be filed, to wit: SEC. 4. Venue.—The petition shall be filed in
the Family Court of the province or city where the petitioner or the
respondent has been residing for at least six months prior to the date of the
filling, or in case of a nonresident respondent, where he may be found in
the Philippines, at the election of the petitioner.
5. Effect of pendency of action for annulment

FC

Art. 49. 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. 198. During the proceedings for legal separation or for annulment of
marriage, and for declaration of nullity of marriage, the spouses and their
children shall be supported from the properties of the absolute community
or the conjugal partnership. After the final judgment granting the petition,
the obligation of mutual support between the spouses ceases. However, in
case of legal separation, the court may order that the guilty spouse shall
give support to the innocent one, specifying the terms of such order. 

Art. 213. In case of separation of the parents, parental authority shall be

exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit.

NCC

ARTICLE 369. Children conceived before the decree annulling a

voidable marriage shall principally use the surname of the father.

ARTICLE 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s
surname, or

(2) Her maiden first name and her husband’s surname, or

(3) Her husband’s full name, but prefixing a word indicating that she is
his wife, such as “Mrs.”
ARTICLE 371. In case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name and surname. If she is
the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her former
husband’s surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

6. Effects of annulment

Arts. 50-54, 43, 44, 86(3),99 of the FC:

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final judgment under
Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the

conjugal partnership shall be notified of the proceedings for liquidation.

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

Art. 51. 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. (n)

Art. 52. 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. (n)

Art. 53. 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. 54. 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. 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. 

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. 

Art. 86. A donation by reason of marriage may be revoked by the donor in

the following cases:

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

Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under

Articles 134 to 138.

(a) On remarriage

Art. 40 of the FC:

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.

(b) On rights and obligations between former spouses

Art. 198 of the FC:

 During the proceedings for legal separation or for annulment of marriage,
and for declaration of nullity of marriage, the spouses and their children
shall be supported from the properties of the absolute community or the
conjugal partnership. After the final judgment granting the petition, the
obligation of mutual support between the spouses ceases. However, in
case of legal separation, the court may order that the guilty spouse shall
give support to the innocent one, specifying the terms of such order. 

(c) On the property regime of the marriage

Arts. 50, 43(2), 102(4), 129, 138 of the FC:

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final judgment under
Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the

conjugal partnership shall be notified of the proceedings for liquidation.

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

Art. 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:

(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;
Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:

(4) The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between husband
and wife, unless a different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary waiver of such
share provided in this Code. For purpose of computing the net profits
subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2),
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.

Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:

(1) An inventory shall be prepared, listing separately all the properties of

the conjugal partnership and the exclusive properties of each spouse.

(2) Amounts advanced by the conjugal partnership in payment of personal

debts and obligations of either spouse shall be credited to the conjugal
partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of his or her exclusive
property, the ownership of which has been vested by law in the conjugal
partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out
of the conjugal assets. In case of insufficiency of said assets, the spouses
shall be solidarily liable for the unpaid balance with their separate
properties, in accordance with the provisions of paragraph (2) of Article
121.

(5) Whatever remains of the exclusive properties of the spouses shall

thereafter be delivered to each of them.

(6) Unless the owner had been indemnified from whatever source, the loss
or deterioration of movables used for the benefit of the family, belonging to
either spouse, even due to fortuitous event, shall be paid to said spouse
from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute
the profits, which shall be divided equally between husband and wife,
unless a different proportion or division was agreed upon in the marriage
settlements or unless there has been a voluntary waiver or forfeiture of
such share as provided in this Code.

(8) The presumptive legitimes of the common children shall be delivered

upon the partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to
have chosen the mother, unless the court has decided otherwise. In case
there is no such majority, the court shall decide, taking into consideration
the best interests of said children.

Art. 138. After dissolution of the absolute community or of the conjugal

partnership, the provisions on complete separation of property shall apply.

Valdez v. RTC

In a void marriage, regardless of the cause thereof, the property relations of

the parties during the period of cohabitation is governed by the provisions
of Article 147 or Article 148 of the Family Code.—The trial court correctly
applied the law. In a void marriage, regardless of the cause thereof, the
property relations of the parties during the period of cohabitation is
governed by the provisions of Article 147 or Article 148, such as the case
may be, of the Family Code.

Buenaventura v. CA

In case a marriage is declared void ab initio, the property regime applicable

and to be liquidated, partitioned and distributed is that of equal
coownership.—Since the present case does not involve the annulment of a
bigamous marriage, the provisions of Article 50 in relation to Articles 41, 42
and 43 of the Family Code, providing for the dissolution of the absolute
community or conjugal partnership of gains, as the case may be, do not
apply. Rather, the general rule applies, which is that in case a marriage is
declared void ab initio, the property regime applicable and to be liquidated,
partitioned and distributed is that of equal co-ownership.
(d) Co-ownership results if marriage is void but parties have no legal
impediment to marry each other

Barrido v. Nonato

Under this property regime, property acquired by both spouses through

their work and industry shall be governed by the rules on equal co-
ownership. Any property acquired during the union is prima facie presumed
to have been obtained through their joint efforts. A party who did not
participate in the acquisition of the property shall be considered as having
contributed to the same jointly if said party’s efforts consisted in the care
and maintenance of the family household.—The records reveal that Nonato
and Barrido’s marriage had been declared void for psychological incapacity
under Article 36 of the Family Code. During their marriage, however, the
conjugal partnership regime governed their property relations. Although
Article 129 provides for the procedure in case of dissolution of the conjugal
partnership regime, Article 147 specifically covers the effects of void
marriages on the spouses’ property relations. x x x This particular kind of
co-ownership applies when a man and a woman, suffering no illegal
impediment to marry each other, exclusively live together as husband and
wife under a void marriage or without the benefit of marriage. It is clear,
therefore, that for Article 147 to operate, the man and the woman: (1) must
be capacitated to marry each other; (2) live exclusively with each other as
husband and wife; and (3) their union is without the benefit of marriage or
their marriage is void. Here, all these elements are present. The term
“capacitated” in the first paragraph of the provision pertains to the legal
capacity of a party to contract marriage. Any impediment to marry has not
been shown to have existed on the part of either Nonato or Barrido. They
lived exclusively with each other as husband and wife. However, their
marriage was found to be void under Article 36 of the Family Code on the
ground of psychological incapacity. Under this property regime, property
acquired by both spouses through their work and industry shall be
governed by the rules on equal co-ownership. Any property acquired during
the union is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the property
shall be considered as having contributed to the same jointly if said party’s
efforts consisted in the care and maintenance of the family household.
Efforts in the care and maintenance of the family and household are
regarded as contributions to the acquisition of common property by one
who has no salary or income or work or industry.
(e) On presumptive legitimes/hereditary rights

Arts. 50-53, 43(2) of the FC:

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final judgment under
Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of third presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the

conjugal partnership shall be notified of the proceedings for liquidation.

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

Art. 51. 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. (n)

Art. 52. 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. (n)
Art. 53. 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. 43. The termination of the subsequent marriage referred to in the

preceding Article shall produce the following effects:

(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;

In relation to

Arts. 886 and 888 of NCC

ARTICLE 886. Legitime is that part of the testator’s property which he

cannot dispose of because the law has reserved it for certain heirs who
are, therefore, called compulsory heirs. 

ARTICLE 888. The legitime of legitimate children and descendants consists

of one-half of the hereditary estate of the father and of the mother.

The latter may freely dispose of the remaining half, subject to the rights of
illegitimate children and of the surviving spouse as hereinafter provided.

Art. 176 of the FC

Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with
this Code. The legitime of each illegitimate child shall consist of one-half of
the legitime of a legitimate child. Except for this modification, all other
provisions in the Civil Code governing successional rights shall remain in
force. 

Arts. 102 (5) and (6), 129(8) and (9) of the FC

Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:

(5) The presumptive legitimes of the common children shall be delivered

upon partition, in accordance with Article 51.

(6) Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to
have chosen the mother, unless the court has decided otherwise. In case
there in no such majority, the court shall decide, taking into consideration
the best interests of said children.

Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:

(8) The presumptive legitimes of the common children shall be delivered

upon the partition in accordance with Article 51.

(9) In the partition of the properties, the conjugal dwelling and the lot on
which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to
have chosen the mother, unless the court has decided otherwise. In case
there is no such majority, the court shall decide, taking into consideration
the best interests of said children. 

Yu v. Reyes-Carpio

Conversely, the trial court, or more particularly the family court, shall
proceed with the liquidation, partition and distribution, custody, support of
common children, and delivery of their presumptive legitimes upon entry of
judgment granting the petition. And following the pertinent provisions of the
Court En Banc Resolution in A.M. No. 02-11-10-SC, this act is undoubtedly
consistent with Articles 50 and 51 of the Family Code, contrary to what
petitioner asserts. Particularly, Arts. 50 and 51 of the Family Code state:

“Article 50. x x x
The final judgment in such cases shall provide for the liquidation, partition
and distribution of the properties of the spouses, the custody and support of
the common children, and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in the previous judicial
proceedings.

x x x x

Article 51. 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.”

(f) On the status and custody of children

Arts. 54, 213, 164, 165 of FC:

Art. 54. 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. 213. In case of separation of the parents, parental authority shall be

exercised by the parent designated by the Court. The Court shall take into
account all relevant considerations, especially the choice of the child over
seven years of age, unless the parent chosen is unfit. 

Art. 164. Children conceived or born during the marriage of the parents are
legitimate.

Children conceived as a result of artificial insemination of the wife with the

sperm of the husband or that of a donor or both are likewise legitimate
children of the husband and his wife, provided, that both of them authorized
or ratified such insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the child. (55a, 258a)

Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code. 
Yu v. Yu

By petitioner’s filing of the case for declaration of nullity of marriage before

the Pasig RTC he automatically submitted the issue of the custody of
Bianca as an incident thereof.—By petitioner’s filing of the case for
declaration of nullity of marriage before the Pasig RTC he automatically
submitted the issue of the custody of Bianca as an incident thereof. After
the appellate court subsequently dismissed the habeas corpus case, there
was no need for petitioner to replead his prayer for custody for, as above-
quoted provisions of the Family Code provide, the custody issue in a
declaration of nullity case is deemed pleaded. That that is so gains light
from Section 21 of the “Rule on Declaration Of Absolute Nullity Of Void
Marriages and Annulment of Voidable Marriages” which provides: Sec. 21.
Liquidation, partition and distribution, custody, support of common children
and delivery of their presumptive legitimes.—Upon entry of the judgment
granting the petition, or, in case of appeal, upon receipt of the entry of
judgment of the appellate court granting the petition, the Family Court, on
motion of either party, shall proceed with the liquidation, partition and
distribution of the properties of the spouses, including custody, support of
common children and delivery of their presumptive legitimes pursuant to
Articles 50 and 51 of the Family Code unless such matters had been
adjudicated in previous judicial proceedings. (Emphasis and underscoring
supplied) Since this immediately-quoted provision directs the court taking
jurisdiction over a petition for declaration of nullity of marriage to resolve
the custody of common children, by mere motion of either party, it could
only mean that the filing of a new action is not necessary for the court to
consider the issue of custody of a minor.

(g) On the use of surnames

Arts. 370, 371, 364, 369 of the NCC:

ARTICLE 370. A married woman may use:

(1) Her maiden first name and surname and add her husband’s surname,
or

(2) Her maiden first name and her husband’s surname, or

(3) Her husband’s full name, but prefixing a word indicating that she is his
wife, such as “Mrs.”
ARTICLE 371. In case of annulment of marriage, and the wife is the guilty
party, she shall resume her maiden name and surname. If she is the
innocent spouse, she may resume her maiden name and surname.
However, she may choose to continue employing her former husband’s
surname, unless:

(1) The court decrees otherwise, or

(2) She or the former husband is married again to another person.

ARTICLE 364. Legitimate and legitimated children shall principally use the
surname of the father.

ARTICLE 369. Children conceived before the decree annulling a voidable

marriage shall principally use the surname of the father.

Yasin v Judge, Shari’a District Court

The only name that may be changed is the true and official name recorded
in the Civil Register.—While it is true that under Article 376 of the Civil
Code, no person can change his name or surname without judicial
authority, nonetheless, the only name that may be changed is the true and
official name recorded in the Civil Register.

Bar Matter No. 1625- Josephine P. Uy-Timosa, July 18, 2006