VOID AND VOIDABLE MARRIAGES
VOID VOIDABLE
Can never be ratified Can generally be ratified by
free cohabitation
Always void Valid until annulled
Can be attacked directly or Cannot be assailed
collaterally collaterally; there must be a
direct proceeding
No conjugal partnership There is conjugal
partnership
Two Kinds of Impediments in Marriages
1. Diriment: make the marriage void (Example: close blood
relationship, prior existing relationship)
2. Prohibitive: do not affect the validity of the marriage but
criminal prosecution may follow
Another Classification of the Impediments
1. Absolute: Person cannot marry at all (Example: one is
below 18 years old)
2. Relative: prohibition is only with respect to certain
persons (Example: A brother cannot marry his sister)
ARTICLE 35: The following marriages shall be void from the
beginning
(1) Those contracted by any party below 18 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 so
(3) Those solemnized without a license, except those
covered by the preceding Chapter
(4) Those bigamous or polygamous marriages not falling
under Article 41
(5) Those contracted through mistake of one contracting
party as to the identity of the other
(6) Those subsequent marriages that are void under Article
53
 Can a void marriage be a source of rights?
o No. Void marriage = no marriage has taken place
ARTICLE 36: A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated to
comply with the essential marital obligation of marriage,
shall likewise be void even if such incapacity becomes
manifest only after its solemnization.
 Psychological Incapacity
o Need not be necessarily be manifested before or
during the marriage although it is a basic
requirement that the defect existed during the
marriage
o Condition of a person who does not have the
mind, will, and heart for the performance of
marriage obligations
o Must already be a condition in the subject at the
time of the wedding, although its manifestation
or detection would occur later
o Had its bearing in the Canon Law Code (Canon
1095, par.3): They are incapable of contracting
marriage, who are not capable of assuming the
essential obligations of matrimony due to
causes of a psychological nature
 Three Essential Characters (Dimayuga-Lawrence vs CA)
o Gravity: It must be grave and serious such that
the party would be incapable of carrying out the
ordinary duties required in a marriage.
o Judicial antecedence: It must be rooted in the
history of the party antedating the marriage,
although the overt manifestations may emerge
only after the marriage
o Incurability: It must be incurable, or even if it
were otherwise, the cure would be beyond the
means of the party
 Ferraris vs Ferraris: It is not enough to prove that the
parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown
to be incapable of doing so, due to some psychological,
not physical, illness
 Republic vs CA, Molina: guidelines in interpreting and
applying Article 36
o The burden of proof to show the nullity of the
marriage belongs to the plaintiff.
o The root cause of the psychological incapacity
must be:
 Medically or clinically identified
 Alleged in the complaint
 Sufficiently proven by experts
 Clearly explained in the decision
o The incapacity must be proven to be existing at
the time of the celebration of the marriage
o The incapacity must also be shown to be
medically or clinically permanent or incurable
o Such illness must be grave enough to bring
about the disability of the party to assume the
essential obligation of marriage
o The essential marital obligation must be those
embraced by Arts. 68-71 of the Family Code
o Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in
the Philippines should be given great respect by
our courts
o The trial court must order the fiscal and the
Solicitor General to appear as counsel for the
State
 Marcos vs Marcos: personal examination of the subject
by the physician is not required for the spouse to be
declared psychologically incapacitated.
 Santos vs CA
o Art. 68 of the Family Code: mutual obligation to
live together, observe love, respect and fidelity
and render help and support
o Psychological incapacity must exist at the time
the marriage is celebrated
 o Art. 54 of the Family Code: children conceived
prior to the judicial declaration of nullity of the
void marriage = legitimate
 Chi Ming Tsoi vs CA
o Essential marital obligations: to procreate
children based on the universal principle that
procreation of children though sexual
cooperation is the basic end of marriage
 Republic vs Encelan
o Psychological Incapacity = downright incapacity
to take cognizance of and to assume the basic
marital obligation, not merely the refusal,
neglect as difficulty
 Expert Opinion need not be alleged = no need to alleged
the root cause of the psychological incapacity
 While it is no longer necessary to allege expert opinion,
psychological incapacity must be established by the
totality of the evidence presented during trial.
 Article 36 is not to be confused with a divorce law that
cuts the material bond at the time the causes manifest
themselves – it refers to a serious psychological illness
afflicting a party even before the celebration of the
marriage.
 Must be more than just a difficulty, refusal, or neglect
 Baccay v Baccay
o Failure to consummate the marriage by itself
however, does not contribute as a ground to
nullify the marriage. The spouse’s refusal to
have intimate sexual relations must be due to
causes, psychological in nature
 Agraviador vs Amparo-Agraviador
o Insensitivity, sexual infidelity, emotional
immaturity, and irresponsibility, do not by
themselves warrant a finding of psychological
incapacity
 Cannot be equated with professional/work relationship
 Kalaw vs Fernandez
o Sexual infidelity is a ground for a legal
separation, but it does not necessarily constitute
psychological incapacity
o Psychological incapacity = serious psychological
illness afflicting a party even prior to the
celebration of the marriage that is permanent as
to deprive the party of the awareness of the
duties and responsibilities of the matrimonial
bond he or she was about to assume
o Should interpret the provision on a case-to-case
basis
o Guidelines on Molina: rigid
o Must not be so strictly and too literally read and
applied given the clear intendment of the
drafters to adopt its enacted version of less
specificity obviously to enable some resiliency in
its application
o Courts must accord weight to expert testimony
on the psychological and mental state of the
parties in cases for the declaration of the nullity
of marriages
o 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
o Expert opinion should be considered as
conjectural or speculative and without any
probative value only in the absence of other
evidence
o Expert opinion should be considered not in
isolation but along with the other evidence
presented
o The courts are justified in declaring a marriage
null and void under Art. 36 regardless of
whether it is the petitioner or the respondent
who imputes the psychological incapacity
 The rules provided in Molina remain valid
 Expert testimony is decisive. The absence of an expert
witness does not automatically result to a denial of the
petition
 The psychologist need not personally examine the
incapacitated spouse.
o The opinion of the expert should not be lightly
brushed aside in the presence of the totality of
evidence in the case
 Patterned after church doctrine
 Protects the family
o Presumption: in favor of validity
 One or both spouses can be psychologically incapacitated
 Trial court decision is binding for as long as such findings
and evaluation of the testimonies of witnesses and other
evidence are not shown to be clearly and manifestly
erroneous
 There are sufficient safeguards to protect marriage
o The State is mandated by law to participate and
ensure that the institution of marriage is amply
protected
ARTICLE 37: Marriages between the following are incestuous
and void from the beginning, whether the relationship
between parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree
(2) Between brothers and sisters, whether full of half-
blooded
ARTICLE 38: The following marriages shall be void from the
beginning for reasons of public policy:
(1) Between collateral blood relatives, whether
legitimate or illegitimate, up to the fourth civil
degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent
and the adopted child;
(6) Between the surviving spouse of the adopted child
and the adopter
(7) Between an adopted child and a legitimate child of
the adopter
(8) Between adopted children of the same adopter; and
 (9) Between parties where one, with the intention to
marry the other, killed that other person’s spouse, or
his or her own spouse
 Other void marriages
o Marriages in a play
o Marriages between two boys and two girls
o Marriages in jets: pretended one; legal in form
but entered as a joke, with no real intentions of
entering into the actual marriage status
 Incestuous marriage: contrary to public policy
 Stepbrothers, etc. = valid
 May a Roman Catholic priest get married
o Yes, under the civil law
o Legally possible
ARTICLE 39: The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe.
 There is need to declare a void marriage as void or
invalid.
ARTICLE 40: The absolute nullity of a previous marriage may
be invoked for purposes of marriage on the basis solely of a
final judgment declaring that such previous marriage void.
 A void marriage must be first declared void for purposes
of remarriage.
 There is necessity for a judicial declaration of absolute
nullity of a prior subsisting marriage before contracting
another.
 Final judgment declaring the previous marriage void
need not be obtained only for purposes of remarriage
 Applicable to remarriages entered into after the
effectivity of the Family Code on Aug. 3, 1988 regardless
of the date of the first marriage.
 A marriage though void still needs judicial declaration of
such fact.
ARTICLE 41: A marriage contracted by any person during the
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 had 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.
 H and W were Filipinos validly married in the Philippines,
H and W went to America and obtained a divorce. H
married S. Later H and S came to the Philippines. Is the
marriage valid and can H be successfully prosecuted in
the Philippines for the crime of bigamy?
o Marriage is VOID. The divorce is not recognized
in the Philippines.
o H cannot be convicted for the crime of bigamy
for it took place outside the territorial
jurisdiction of the Philippines.
 Presumptively dead: cannot reach the stage of finality
 The party desiring to remarry must ask for a judicial
declaration of presumptive death.
 No marriage license shall be issued to a widow till after
300 days following the death of her husband.
 Legal separation: does not dissolve the matrimonial bond
 If a woman’s marriage is annulled, may she be issued a
marriage license without waiting for the period of 300
days.
ARTICLE 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 circumstance 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
spouse of the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined in case
such fact is disputed.
 Elements
o Subsequent marriage under Art. 41
o A sworn statement of the fact and circumstance
of reappearance
ARTICLE 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.
ARTICLE 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.
ARTICLE 45: The marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(1) That the party in whose behalf is sought to have the
marriage annulled was 18 years of age or over but below
21, 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 21, such party
freely cohabited with the other and both lived together
as husband and wife.
(2) That either party was of unsound mind, unless such
party, after coming to reason, freely cohabited with the
other as husband and wife
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the
other as husband and wife.
(4) That the consent of either party was obtained by force,
intimidation, or undue influence, unless the same having
disappeared or cease, such party thereafter freely
cohabited with other as husband and wife
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable
(6) That either party was afflicted with a sexually
transmissible disease found to be serious and appears to
be incurable
 Must exist at the time of the celebration of the marriage
 Force, intimidation, or undue influence
o Force or violence: serious or irresistible force
o Intimidation: compelled by a reasonable and
well-grounded fear of an imminent and grave
evil upon his person or property
o Undue influence: control over one’s will
 Marriage vitiated by force or intimidation is voidable
 5 refers to impotence
o Impotence refers to lack of power of copulation
and not mere sterility
o A sterile person is not necessarily impotent
o If known to the impotent person, a grievous
fraud and injury has been committed
o The test is not the capacity to reproduce but the
capacity to copulate
o Inability to perform the sexual act
o The burden of proof is upon the complainant
o Existed at the time of the wedding and that is
still existed and incurable
o Impotency should not be presumed
o Age (advanced age) taken alone could not be a
criterion
o Impotent to his wife but not to other women 
wife can still have the marriage annulled for her
husband’s impotency with her was as prejudicial
as universal impotency
o Triennial Cohabitation: if the wife remains a
virgin after living together with her husband for
3 years, the presumption is that the husband is
impotent
o The person alleged to be impotent may be
examined physically.
o Must be brought by the potent spouse who
must have been unaware of the other’s
impotency
o If both the husband and the wife are impotent,
the marriage cannot be annulled because
neither can claim he or she has been aggrieved
by the other.
o Her refusal to be examined does not create a
presumption of impotency because Filipino girls
are inherently shy and bashful.
 STD: AIDS, herpes, syphilis, gonorrhea, hepatitis, etc
 Free and voluntary cohabitation ratifies the voidable
marriage
o Cohabitation: living together of the parties as
husband and wife, including sexual relations
ANNULMENT LEGAL SEPARATION
Defective at the very No defect at the beginning
beginning
Cause must be already Cause arises after the
existing at the time of the marriage celebration
marriage
6 grounds 10 grounds
Dissolves the marriage Marriage remains
bond
Lex loci celebrationis National law
ARTICLE 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.
 Enumeration  no other kind of fraud is ground for the
annulment of the marriage
 The non-disclosure by the husband of a premarital
relationship with another woman is NOT a ground for
annulment of the marriage.
 Note: pregnancy must be at the time of the marriage
ceremony.
 If a husband knew at the time the marriage was
celebrated that the woman was pregnant because of
him, the marriage cannot be annulled on the ground of
fraud.
 STD: need not be serious and there must have been
concealment in contrast to Art. 45 (6) (must be serious
and need not be concealed)
ARTICLE 47: The action for annulment of marriage must be ARTICLE 48: In all cases of annulment or declaration of
filed by the following persons and within the periods absolute nullity of marriage, the Court shall order the
indicated herein: prosecuting attorney or fiscal assigned to it to appear on
(1) For causes mentioned in number 1 of Article 45 by the behalf of the State to take steps to prevent collusion between
party whose parent or guardian did not give his or her the parties and to take care that evidence is not fabricated or
consent, within five years after attaining the age of twenty- suppressed.
one, or by the parent or guardian or person having legal In the cases referred to in the preceding paragraph, no
charge of the minor, at any time before such party has judgment shall be based upon a stipulation of facts or
reached the age of twenty-one; confession of judgment.
(2) For causes mentioned in number 2 of Article 45, by the  Stipulation of facts: facts agreed upon and signed by both
same spouse, who had no knowledge of the other's insanity; the husband and wife
or by any relative or guardian or person having legal charge of  Confession of judgment: a statement by the erring
the insane, at any time before the death of either party, or by spouse to the effect that he or she is not against the
the insane spouse during a lucid interval or after regaining annulment
sanity;  2 kinds of confession of judgment:
(3) For causes mentioned in number 3 of Article 45, by the o Confession of judgment by warrant of attorney:
injured party, within five years after the discovery of the authority given by defendant to plaintiff’s
fraud; attorney allowing the latter to tell the court that
(4) For causes mentioned in number 4 of Article 45, by the the defendant confesses or admits the plaintiff’s
injured party, within five years from the time the force, claim to be true and just
intimidation or undue influence disappeared or ceased; o Confession of judgment or judgment by
(5) For causes mentioned in number 5 and 6 of Article 45, by confession cognovit actionem: instead of
the injured party, within five years after the marriage. defending himself, the defendant chooses to
Paragraph Persons Period acknowledge the rightfulness of the plaintiff’s
1: Non-age a) Before party Within 5 years action
becomes 21: her or after reaching  After a marriage is annulled, the obligation of mutual
his parent 21 support between the spouses ceases. But the children
b) After party becomes should still be supported by them.
21: party herself or  Instances when damages may be awarded when the
himself marriage is judicially annulled or declared void from the
2: a) Spouse (who did Any time before beginning
Unsoundness NOT know of the the death of o If there had been fraud, force, intimidation or
of Mind other’s insanity either party undue influence
b) Relatives or o If either party was, at the time of the marriage,
guardians of the impotent and the other party did not know this
insane o If one party was insane, and the other was
c) Insane spouse aware thereof at the time of the marriage
during a lucid o If the person solemnizing was not legally
interval or after authorized to perform marriage and that fact
regaining sanity was known to one of the contracting parties but
3: Fraud Injured party Within 5 years he or she concealed
after the o If a bigamous or polygamous marriage was
discovery of the celebrated and the impediment was concealed
fraud from the plaintiff by the party disqualified
4: Force, Injured party Within 5 years o If, in an incestuous marriage, or the other
intimidation, from the time marriage prohibited by Art. 32, the relationship
undue the force, was known only to one party but not disclosed
influence intimidation or to the other
undue influence ARTICLE 49: During the pendency of the action and in the
ceased absence of adequate provisions in a written agreement
5: Impotence Injured party Within 5 years between the spouses, 1)the Court shall provide for the
after the support of the spouses and the custody and support of their
celebration of common children. The 2)Court shall give paramount
the marriage consideration to the moral and material welfare of said
6: STD Injured party Within 5 years children and their choice of the parent with whom they wish
after the to remain as provided to in Title IX. It shall also 3)provide for
celebration of appropriate visitation rights of the other parent.
the marriage
ARTICLE 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.
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.
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.
ARTICLE 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.
ARTICLE 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.
ARTICLE 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.