VOID AND VOIDABLE MARRIAGE
ARTICLE 35. VOID MARRIAGE
● Void due to absence of ESSENTIAL and FORMAL
requisites. (Article 35 [1-3])
○ LEGAL CAPACITY: Contracted by any party
below eighteen years of age even with the
consent of parents.
○ AUTHORITY OF THE SOLEMNIZING OFFICER:
Solemnized by any person not legally
authorized to perform marriage.
EXCEPTION: parties believed in good
faith that he had the legal authority to
do so. (Must be based on ignorance of
facts and not ignorance of the law)
○ Solemnized WITHOUT A LICENSE.
(EXCEPTIONS: those mentioned in Chapter
2)
● BIGAMOUS or POLIGAMOUS marriages (Article
35 [4])
○ Contracted during the subsistence of a
previous marriage (the previous marriage
must be valid or at least voidable)
● Void due to MISTAKE (Article 35 [5])
○ Mistake of the contracting party on the
identity of the latter.
● Void for being INCESTUOUS (Article 37)
○ Magkakamag anak/Magkakapatid
● Void for being CONTRARY TO PUBLIC POLICY
(Article 38)
○ Marriage between step siblings, adoptive
parents. etc.
● Void SECOND MARRIAGE (Article 53)
NOTE:
● A marriage can be terminated by annulment or
an action for declaration of nullity. But the law
(art 52) requires that there must be a partition
as well as the distribution of the conjugal or
community property as well as delivery of the
presumptive legitime of the children and the
same must be recorded in the proper registry
of deeds. But if these requirements are not
satisfied, the subsequent marriage that may
be contracted shall be considered void.
NOTE:
● Actions to declare a marriage void do not
prescribe (Art. 39). But the right of action is lost
when either or both spouses die.
● For purposes of remarriage, there must be a
declaration of nullity of marriage. Parties cannot
just assume that the marriage is annulled or void.
There must be a judicial declaration to that effect
before they can remarry.
ARTICLE 36. VOID MARRIAGE DUE TO
PSYCHOLOGICAL INCAPACITY
CONCEPT:
● It is the inability to comply with the essential
marital obligations of marriage of one or both
parties.
● It must be more than just a difficulty, refusal or
neglect performance of the marital obligations.
● It is characterized by:
○ Gravity - incapacity must be grave or serious.
○ Juridical antecedence - the incapacity must be
rooted in the history of the party antedating
the marriage. The incapacity must be proven
existing at the time of the marriage.
○ Incurability - must be incurable or the cure
would go beyond the means of the party
involved.
GUIDELINES IN DECLARING A MARRIAGE VOID DUE
TO PSYCHOLOGICAL INCAPACITY
● The burden of proof rests with the plaintiff.
● The root cause of the psychological incapacity
must be:
○ Medically or clinically identified
○ Alleged in the complaint
○ Sufficiently proven by experts
○ Explained in the decision
● The incapacity must be exiting at the time of the
celebration of the marriage.
● The incapacity must be permanent or incurable.
● The illness is grave enough to prevent the party
from assuming the essential marital obligations.
● The marital obligations to live together, to
observe mutual love, respect and fidelity, to
render mutual help and support.
● The interpretation of the national appellate
matrimonial tribunal of the catholic church shall
be given great respect.
● The trial court must order the prosecutor and the
solicitor general to appear for the state.
DECLARATION OF PRESUMPTIVE DEATH
● REQUISITES of a VALID second marriage
○ The absent spouse has been missing for four
consecutive years or two consecutive years
(where there is danger of death; ARTICLE
391)
○ The present spouse wishes to remarry. (must
file an action that declare the absent spouse
dead)
○ The present spouse has a well-founded belief
that the absent spouse is dead.
○ The present spouse initiates summary
proceeding for the declaration of presumptive
death and a decision is rendered therein.
REPUBLIC VS. CANTOR, G.R NO. 184621.
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 abscess. To be able to
comply with this requirement, the present spouse
must prove that his/her belief was the result of ● Fraud obtaining consent of either party
diligent and reasonable efforts and inquiries to ● Vitiated consent - force, intimidation, or undue
locate the absent spouse and that based on these influence, duress.
efforts and inquiries, he/she believes that under ● Physical incapability of either party to
circumstances, the absent spouse is already dead. It consummate the marriage.
requires exertion of active effort (not a mere passive ● Either party was afflicted with STD found to be
one). serious or incurable.

In this case, the husband left the conjugal

dwelling after a fight and had neve been seen for at 1. NO PARENTAL CONSENT
least four years. (Party was 18 years of age or over but below 21)
● WHO MUST GIVE CONSENT:
○ Father, mother, surviving parent or guardian,
ARTICLE 45. VOIDABLE MARRIAGES or persons having legal charge.
A voidable marriage is considered valid and ○ If in the father’s custody - father’s consent
produces all its civil effects until it is set aside by final ○ If illegitimate - mother’s consent.
judgment of a competent court in an action for ○ If father is dead - mother’s consent.
annulment. ● WHO MAY FILE ANNULMENT:
A marriage that is annulled presupposes that it ○ By the person whose consent is required
subsists but later ceases to have legal effects when it under Article 14 (only in cases where the
is terminated through a court action. party whose parent did not give consent has
not yet reached 21)
ABSOLUTE NULLITY vs. ANNULMENT ○ By the party whose parent did not give
consent (only when such party has already
reached the age of 21)
ANNULMENT VOID/ NULL
● PRESCRIPTIVE PERIOD:
○ If the petition for annulment is to be filed by
Legal process of Marriage that is
the person whose consent is required - the
invalidating voidable inexistent from the
action is required to be instituted before the
marriage. beginning.
party reaches the age of 21.
○ If the action is to be filed by the party whose
A marriage that is
parents did not give consent, the action may
annulled presupposes Judicial declaration of
prosper only when such party reaches the
that it subsits but later absolute nullity of a void
age of 21 and the action is filed within a
ceases to have legal marriage - the court
period of five years after attaining the age of
effect when it is simply declares a status
21.
terminated through court or condition which
● SUBJECT TO RATIFICATION:
action. already exists from the
Ratified if the party whose parent did not give
very beginning.
consent after reaching the age of 21, freely
cohabits with the other and both lived together as
CHARACTERISTIC OF A VOIDABLE MARRIAGE husband and wife.
● Valid until otherwise declared by the court ○ The contract should be tainted with a vice of
● The defect which serves as ground for annulment which is susceptible of being cured.
must be in existence at the time of the celebration ○ The ratification should be effected by the
of the marriage. person who is entitled to do so.
● Cannot be assailed collaterally except in a direct ○ It should be affected with knowledge of the
proceeding. defect.
● Can be assailed only during the lifetime of the ○ The cause of the defect should have already
parties. disappeared.
● Only the parties to a voidable marriage can assail ■ If the forgoing requisites are satisfied, the
it. ratification cleanses the contract from all
● Action for annulment is subject to prescription. of its defects from the moment it was
● The defect is subject to ratification. EXCEPT: constituted.
mention in paragraph five and six of ARTICLE 45.

VOIDABLE MARRIAGES
● The party in whose behalf it is sought to have the
marriage annulled was of age or over but below
21, and the marriage was solemnized without
parental consent.
● Either party is of unsound mind
2. UNSOUNDNESS OF MIND
The test is whether the party at the time of
marriage was capable of understanding the nature and
consequences of a marriage. To be a ground for
annulment, the insanity must exist at the time of the
marriage.
● PRESUMPTION OF SANITY:
○ A person is presumed to be of sound mind.
 ○ The burden of proof rests upon him who
alleges insanity or seeks to avoid an act on
account of it.
● WHO MAY FILE ANNULMENT:
○ Sane spouse; only in cases where he or she
contracted the marriage without knowledge
of other’s insanity.
○ Any relative or guardian or the person having
legal charge of the insane;
○ The insane spouse during a lucid interval or
after regaining sanity.
● PRESCRIPTIVE PERIOD:
○ Anytime before the death of either party.
● SUBJECT TO RATIFICATION:
○ The law authorizes only the insane person,
after regaining sanity to ratify the marriage
by freely cohabiting with the sane spouse as
husband and wife.
3. FRAUD (IN OBTAINING CONSENT OF EITHER
PARTY)
(UNDER ARTICLE 46)
- Non-disclosure of a previous conviction by final
judgment (crime involving moral turpitude)
- Concealment by the wife of the fact that she
was pregnant by a man other than her
husband (at the time of the marriage)
- Concealment of sexually transmissible disease
- Concealment of drug addiction, habitual
alcoholism, homosexuality, lesbianism, existing
at the time of the marriage.
● WHO MAY FILE ANNULMENT:
○ Injured party; party who was not responsible
for the fraud.
● PRESCRIPTIVE PERIOD:
○ Within five years after discovery of the fraud.
● SUBJECT FOR RATIFICATION:
○ Injured party by freely cohabiting with the
guilty spouse as husband and wife after
gaining full knowledge of the facts
constituting the fraud.
4. VITIATED CONSENT (FORCE, INTIMIDATION, OR
UNDUE INFLUENCE)
● WHO MAY FILE ANNULMENT:
○ Injured party
● PRESCRIPTIVE PERIOD:
○ Within five years from the time the force,
intimidation, or undue influence disappeared
or ceased.
● SUBJECT TO RATIFICATION
○ Injured party by freely cohabiting with the
guilty spouse as husband and wife after the
disappearance or cessation of force,
intimidation, or undue influence.
5. PHYSICAL INCAPABILITY OF CONSUMMATING
MARRIAGE
(physical incapability of sexual intercourse)
● WHAT CONSTITUTES PHYSICAL INCAPABILITY:
○ (impotency) imports a total want of power of
copulation, and only as necessary incident
thereto the inability for procreation.
● NOT PRESUMED:
○ Presumption is in favor of potency. The
burden of proving the existence of impotency
is upon him who alleges the existence of it.
○ The forgoing rule does not apply if the wife
continues to be a virgin after three years of
cohabitation. (husband will be presumed
impotent, but this may be rebutted by proof
of contrary)
● REQUISITES:
○ Incapacity must be existing at the time of the
celebration of the marriage.
○ Continues up to the time of the filling of the
action for annulment
○ The same appears to be incurable
○ Must be unknown to the other party.
● WHO MAY FILE ANNULMENT:
○ Injured party; one who was not aware of the
existence of such incapacity at the time of
the marriage.
● PRESCRIPTIVE PERIOD:
○ Within five years after the celebration of the
marriage and not after discovery of such
incapacity.
● NOT SUBJECT TO RATIFICATION
○ There has been a complete failure of the
consideration of the marriage contract. But
the action for annulment may be barred by
prescription.
6. SEXUALLY TRANSMITTED DISEASE
- The ground for annulment is the concealment
but not the existence of the STD at the time of
the marriage.
● REQUISITES:
○ STD must be existing at the time of the
celebration of the marriage.
○ Found to be serious.
○ Incurable
○ Unknown to the other party at the time of the
marriage.
● WHO MAY FILE ANNULMENT:
○ Injured party; the one who was not aware of
the existence of the disease at the time of
the marriage.
● PRESCRIPTIVE PERIOD
○ Within five years after the celebration of the
marriage and not after the discovery of the
disease.
● NOT SUBJECT TO RATIFICATION
○ While the defect is not subject to ratification,
the action for annulment may be barred by
prescription.
EFFECTS OF FINAL JUDGMENT OF ANNULMENT
The final judgment of annulment dissolves the
special contract of marriage as if it had never been
entered into but the effects of the marriage are not
totally wiped out.

● Termination of marital bond, but the effects

thereof are not totally wiped out.
● Children conceived or born before the judgment of
annulment has become final and executory are
considered legitimate.
● Property regime of a voidable marriage may
either be absolute community of property,
conjugal partnership of gains, or complete
separation.
○ If Absolute community property or conjugal
partnership of gains; the same shall be
liquidated in accordance with the provisions
of Articles 102 and 129 of the Family Code.
If either spouse contracted the
marriage in bad faith, his/her share of
the net profit shall be forfeited in favor
of common children, if none, children
of the guilty spouse by previous
marriage, if none, innocent spouse.
The final judgment in the annulment
must provide for liquidation, partition
and distribution of the properties of the
spouses, unless adjudicated in
previous proceedings.

● Final judgment in the annulment must also

provide for the custody and support of the
common children and the delivery of the common
children’s presumptive legitimes.
● Donation by reason of marriage shall remain valid
EXCEPT if the donee dontracted the marriage in
bad faith, (the donor may revoke the donation)
● Innocent spouse may revoke the designation of
the other spouse who acted in bad faith as
beneficiary in any insurance policy (even
irrevocable)
● Annulment marriage where the wife is the guilty
party; resume her maiden name and surname.
She may choose to use the surname of her former
spouse unless; the court decrees otherwise and
the former husband is married again.
● Parties are again free to remarry but they must
comply with the requirements of Article 52.
● The annulment decree shall be issued by the court
only after the compliance with Art. 50 and 51.