Article 4 (General Rule)

 Absence or lack of essential or formal requisites renders the marriage void

 Any defect in essential requisites renders marriage voidable
 Irregularity in formal requisites does not affect validity; renders person
administratively liable

Tolentino: other void

 Same sex marriages – legal capacity
 Marriage by proxy – consent
 Common law marriages
 Contracted by present spouse without judicial declaration of presumptive
death
o Mere reappearance does not terminate the subsequent marriage
o Purpose of judicial declaration is to establish good faith
o Article 42: affidavit of reappearance to terminate subsequent
marriage; must be recorded at the instance of any person in LCR of
subsequent marriage parties
o Parties to subsequent marriage must be notified of affidavit of
reappearance
o If both parties to the subsequent marriage are in bad faith, marriage is
also void
 If present spouse is in bad faith; he knows absent spouse is still
living; it can fall under Article 45(4), making marriage void

2 exceptions
 Solemnizing officer is not authorized, but parties believed in good faith that
he was authorized, then marriage is still valid
 Exemptions from marriage license: Chapter 2 of FC
o Marriages in articulo mortis
 Requisites
 Who, where solemnize
o Residence is very far from the LCR such that it becomes impossible or
impracticable
o Parties are Muslims, provided they comply with Muslim Code
o 2 persons who have been cohabiting for 5 years
 Exclusivity, continuity
 No legal impediment

Article 35(1)
 Marriages contracted by parties below 18 years old are void without consent
 They lack legal capacity
 Legal capacity encompasses age, gender, lack of legal impediment
 18 years old is the majority age
Article 35 (2)
 Void if solemnizing officer had no authority, unless parties had good faith
 If person is one of those enumerated in FC, but person does not have a
license, it is mistake of fact
 Judges outside jurisdiction: irregularity; not void
 Lack of formal requisite

Article 35(3)
 Those solemnized without license
o Not confined to literal absence of license
o License expired – valid for only 120 days
o RP v Dayot(?): parties claiming to be covered under cohabitation
executed a false affidavit of cohabitation; falsity of affidavit renders
the marriage void because if they did not cohabit, they are not
exempted from a license
 LCR of a place not residence: irregularity; not void
 LCR did not post the application as required: irregularity; not void
 Blank statements: irregularity
 If license is issued without compliance with procedures in FC, marriage is
still valid: mere irregularities
 Lack of formal requisite

Article 35 (4)
 Bigamous and polygamous marriages not falling under Article 41
 SC extended it to Article 40
 A marriage under Article 41 (absence)
o Contracted marriage after judicial declaration of presumptive death
 Legal impediment; lacks legal capacity

Article 35 (5)
 Mistake in identity; void
 How? Identical twin
 Consent is missing; essential requisite

Article 35 (6)
 Those marriages void under Article 53, 52
 If you have a former marriage that is dissolved, consequences are partition
and liquidation of properties, delivery of legitimes, etc. All these incidents
have to be registered, along with decree of nullity, in the appropriate civil
registry and registry of property.
 Register?
o LCR where marriage is celebrated
o LCR where the court which rendered nullity is
 o NSO – will annotate in the marriage contract that marriage is declared
null and void
 Failure to register will render subsequent marriage void
 Lack of legal impediment; lacks legal capacity

Article 36
 Psychological incapacity
 Void
 FC failed to define PI because framers did not want to restrict the meaning of
PI
 Burden is with SC to interpret FC
 Mental incapacity that renders one incognitive of the marital obligations
(Article 68, FC); love, support, live together
 Guidelines (Santos): gravity, juridical antecedence, incurability
 Root cause should be medically or clinically proven
o But expensive
o Prevailing doctrine: totality of evidence establishes psychological
incapacity
 Juridical antecedence: root cause; deeply ingrained (family background) in
the person but manifested only during the marriage
o Find out background, life experience, and try to relate to the disorder
of the person. Establish it has been there, and has been caused by
cumulative experience of that person prior to the marriage
o Manifestations: those which render him incapable of fulfilling marital
obligations
o Must show root cause of the psychological incapacity
 Gravity:
 Incurability: cannot be cured; recommendation for therapy does not mean it
is curable
 Psychological incapacity is partner to partner
o A, declared psychologically incapacitated to B, can remarry C
 Value of the testimony of an expert witness (psychiatric report)
o Some cases court it not bound; “hearsay” because it is a reiteration of
what was said by the informant
o Psychiatric report served as basis in some
o Difference based on circumstances
 There are corroborative witnesses testifying about the
childhood
 Explain based on facts the root cause, manifestations, gravity,
incurability
 Evaluation is made on a case to case basis; difficult to set a precedent

Article 37
 Void: incestuous, regardless of legitimacy
  Against public policy; medical basis
 Prohibitions
o Ascendants and descendants, whether legitimate or illegitimate; no
limits in terms of degree
o Brothers and sisters, half-blood and full-blood (collateral)

Article 38
 Void ab initio because of public policy
o Collateral blood relative up to 4th degree
o Step parents and step children (nothing for step sibling)
o In-laws
o Adopting parent and child (only child can rescind adoption)
o Adopted child and legitimate child
o Kill spouse to be with another

Article 41
 Marriage contracted during a subsisting marriage, unless there is judicial
declaration of presumptive death
 Bigamous or polygamous
 Presumptive death
o Absence of four years, unless in a dangerous situation (2 years)
o Article 391, CC: presumed death
 Lost ship or plane
 Armed forces in war
 Danger of death in other circumstances
o Spouse must institute a summary proceeding
o Spouse must show best efforts in locating spouse
o Have the absent spouse be declared presumptively dead
 Well-founded belief should include the belief of the community; efforts to
coordinate with local authorities; media announcements
 Reappearance of spouse
o Reappearance does not terminate subsequent marriage, until an
affidavit of reappearance is filed, registered with LCR of the residence
of the parties of the subsequent marriage
o Subsequent marriage rendered void

Article 44
 Void: Both spouses acted in bad faith in Article 41 marriage (know spouse is
not dead)

Who can invoke the nullity of a marriage?

 No provision in the FC states who may file
 AM Rule on Declaration of Void Marriages, Voidable (March 15, 2003): only
the spouse can file for petition
  Prior to AM: Petitioner must be a real party in interest (ROC: party that
stands to be benefited or endured by the action)
 Effectivity of CC: no limitation
 Effectivity of FC: no limitation
 However, you must determine if the petitioner is a real party in interest
 Effectivity of AM: limitation; not given retroactive effect

FC: August 3, 1988

Procedure for Petition for Declaration of Nullity

 Petitioner files petition in court
 Court will issue summons to the respondent; direct respondent to file an
answer
o No answer: respondent cannot be declared in default; court will direct
public prosecutor to investigate whether there is evidence of collusion
 If there is collusion: dismiss
 No evidence: proceed; public prosecutor will participate in the
case to ensure no fabrication of evidence or collusion
 Pre-trial
 Trial
o Motion to dismiss not allowed
 Judgment
o There must be a trial on the merits
o Prosecutor must actively participate in the case

Is judicial declaration of nullity a defense in a bigamy case?

 Article 40: For purposes of remarriage, a judicial declaration of nullity of
previous marriage is necessary otherwise the subsequent marriage is void
o Can subsist independently of RPC
o Without judicial declaration, there is a risk for being prosecuted for
bigamy
o Speaks of status of marriage, not criminal liability
 RPC
o Provides for criminal liability
 There is no conflict between FC and RPC
 Framers: judicial declaration is not necessary; only for purposes of
remarriage
 Morigo: nullity of the marriage retroacts to the very beginning; nullity
precedes from lack or absence of requisites of marriage
 If the nullity proceeds from psychological incapacity, there is no retroactivity.
Judicial declaration needed. (Tenebro)
 Regardless of judicial declaration of nullity, for as long as subsequent
marriage was contracted prior to judicial declaration of nullity, accused is
liable for bigamy.
 Guzman agrees: If a marriage is void due to lack of essential and formal
requisites, it retroacts. Since a void marriage can be attacked collaterally, it
can be raised as a defense in bigamy.
 Marriage void due to psychological incapacity (Tenebro)
o See Vitug’s explanation
o Whenever psychological incapacity is a ground, accused usually held
guilty
o Default ruling: crime was already consummated prior to judicial
declaration
o Vitug (Guzman agrees): void marriage produces legal effects; akin to a
voidable marriage; judicial declaration needed
 Nullity of a marriage is indeed a defense
 Do not grant motion to quash; need full blown trial on the merits
 IT IS A DEFENSE. Make a distinction: nullity from requisites (retroactivity);
nullity from Article 36 (voidable; legal effects; no retroactivity)