PEOPLE vs.

ARTURO MENDOZA [95 PHIL 845] FACTS: This is an appeal from a judgment of the CFI of Laguna, convicting Mendoza of bigamy. On August 5, 1936, appellant and Jovita de Asis were married in Marikina, Rizal. On May 14, 1941, appellant married Olga Lema during the subsistence of his first marriage. On February 2, 1943, Jovita de Asis (First wife) died. On August 19, 1949, appellant married Carmencita Panlilio. Marriage to Carmencita Panlilio gave rise to his prosecution for and conviction of the crime of bigamy. Appellant contends that his marriage with Olga Lema on May 14, 1941 is void because it was contracted when his first marriage with Jovita de Asis was still in effect, and that his third marriage to Carmencita Panlilio on August 19, 1949 cannot be the basis of a charge for bigamy because it took place after the death of Jovita de Asis. ISSUE: WON Arturo Mendoza is liable for bigamy. HELD: NO. Acquitted. The marriage law in effect at the time the appellant contracted with his second wife, Olga Lema, states that his marriage to Lema was void ab initio. No judicial decree was necessary to establish its invalidity. RATIO: In the case at bar, it is admitted that appellant's second marriage with Olga Lema was contracted during the existence of his first marriage with Jovita de Asis. Section 29 of the marriage law (act 3613), in force at the time the appellant contracted his second marriage in 1941, provides as follows: Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void unless first marriage has been annulled, dissolved or first spouse has been absent for 7 consecutive years without news if he/she is still alive. Judicial declaration of nullity is only necessary for third case. THUS, HIS MARRIAGE WITH LEMA IS NULL AND VOID WITHOUT NEED FOR JUDICIAL DECLARATION. DISPO: Wherefore, the appealed judgment is reversed and the defendant-appellant acquitted. SERAFIA TOLENTINO, petitioner, V. HON. EDGARDO L. PARAS, MARIA CLEMENTE, and THE LOCAL CIVIL REGISTRAR OF PAOMBONG, BULACAN, respondents. Facts: Serafia Tolentino was the wife of the deceased, Amado Tolentino. They were married on July 31, 1943. While marriage was still subsisting, Amado Tolentino contracted another marriage with Maria Clemente at Paombong, Bulacan, on Nov. 1, 1948. Petitioner requested the correction of an entry on the death certificate of the deceased which states that the name of his surviving spouse was Maria Clemente. Amado Tolentino married his second wife, Maria Clemente while his first marriage was still in effect. When the

deceased was charged with bigamy, he pleaded guilty and served the corresponding sentence. After Amado served the prison sentence imposed on him, he continued to live with Maria Clemente until his death on July 25, 1974. Amados death certificate declared Maria Clemente as the surviving spouse. Petitioner sought to correct the name of the surviving spouse in the death certificate from Maria Clemente to Serafia G. Tolentino. The petition was dismissed by Hon. Edgardo Paras of the lower court on grounds citing: (1) the correction of the entry in the Office of the Local Civil Registrar is not the proper remedy because the issue involved is marital relationship; (2) the Court has not acquired proper jurisdiction because as prescribed under Art. 108, read together with Art. 412 of the Civil Code, publication is needed in a case like this, and up to now, there has been no such publication; and (3) the subject matter of this case has been aptly discussed in Special Proceeding No. 1587-M, which this Court has already dismissed, also for lack of the proper requisites under the law Petitioner challenged the grounds relied upon by respondent courts in ordering dismissal. ISSUE: Is Serafia Tolentino the rightful surviving spouse of Amado Tolentino? Held: Yes. Serafia Tolentino is the rightful surviving spouse. Rectification of the erroneous entry in the records of the Local Civil Registrar may, therefore, be validly made. The petition was meritorious. The court had jurisdiction because the wife was, initially, seeking a judicial declaration that she was the lawful spouse of the deceased. The plea of guilt of the deceased effectively established that the second marriage was in fact, void ab initio and that the petitioner was the lawful spouse. RATIO: 1. The second marriage that Amado Tolentino contracted with the private respondent during the lifetime of his first spouse is null and void from the beginning. No judicial decree is necessary to establish the invalidity of a void marriage. The publication required by the lower courts pursuant to Rule 108 of the Rules of Court is not absolutely necessary for no other parties are involved. Publication is required to bar indifferently all who might be minded to make an objection of any sort against the right sought to be established. Certificate entries though presumed to be correct must yield to positive evidence establishing their inaccuracy.

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WIEGEL vs. SEMPIO-DIY

[143 SCRA 499] FACTS: Lilia Olivia Wiegel got married to Karl Heinz Wiegel on July, 1978 at the Holy Catholic Apostolic Christian Church in Makati. Karl, upon learning that Lilia had a subsisting marriage, filed for a declaration of nullity of their marriage. Lilia contracted her first marriage with Eduardo Maxion on June 25, 1972. She claims that the first marriage is not valid because they were forced to enter the union and Maxion was married to someone else at that time. ISSUE: WON Lilias first marriage is void? HELD: No. Its voidable. Petition dismissed. RATIO: 1. Presence of force only makes a marriage voidable, not void. (CC ART. 85) It is valid until annulled and since there was no annulment, marriage is still valid. 2. Even if marriage is void, judicial declaration of nullity is still needed especially for purposes of remarriage. Facts: Lilia Wiegel appealed for the reversal of the decision of respondent judge, Sempio-Diy because, in the petition for the declaration of nullity of marriage filed by Karl Heinz Wiegel against petitioner, respondent judge ruled against the presentation of evidence. When petitioner was married to the plaintiff, she had a previous existing marriage. Petitioner claimed that the first marriage was void ab initio because she was forced into marrying her first husband. Held: There was no need to present evidence because if there had been, in fact, intimidation during the first marriage, the said marriage would have been rendered voidable and not void. Had the marriage been void, a judicial declaration would still be necessary. DOROTHY B. TERRE, complainant, vs.ATTY. JORDAN TERRE, respondent. FACTS: Dorothy Terre first met Atty. Jordan Terre when they were 4th year high school classmates in Cadiz City High School. She was then married to Merlito Bercenilla. Jordan courted her and this continued when they moved to Manila to pursue their education. Jordan, then a freshman law student, told Dorothy that her marriage with Bercenilla was void ab initio because they are first cousins. Believing in Jordan and with the consent of her mother and exin-laws, she married Jordan on June 14, 1977. Jordan wrote single as Dorothys civil status despite latters protests. Jordan said it didnt matter because marriage was void to begin with. After their marriage, Dorothy supported Jordan because he was still studying then. They had a son, Jason, who was born on June 25, 1981. Shortly after she gave birth, Jordan disappeared. She learned that he married Vilma Malicdem. Dorothy filed charges for abandonment of minor, bigamy and grossly immoral conduct. Jordan was already a member of the Bar then. Jordan claimed that he was unaware of Dorothys first marriage and that she sent her out of the house when he confronted her about it. He contracted the second

marriage, believing that his marriage to Dorothy was void ab initio because of her prior subsisting marriage. ISSUE: WON a judicial declaration of nullity is needed to enter into a subsequent marriage? RULING: Yes. Jordan Terre disbarred. A judicial declaration is necessary to determine whether a person is legally free to contract a second marriage. Without such declaration, the subsequently existing marriage is sustained. RATIO: 1. Jordan failed to rebut evidence presented by Dorothy. 2. As a law student, he should have known that even if Dorothys first marriage was void ab initio, she still needed a judicial declaration before she can contract another marriage. (GOMEZ v. LIPANA; FC ART. 40) 3. Jordan has displayed a deeply flawed moral character. Dorothy supported him, he got her pregnant then he abandoned her. He made a mockery of the institution of marriage. Thus, not worthy to be a member of the Bar. The Supreme Court ordered disbarment of respondent finding his conduct 'grossly immoral' and is in violation of Sec 27 of Rule 138 of the Rules of Court.

Atienza v. Brillantes, Jr.

March 29, 1995, Quiason, J. Facts: Atienza, visiting his house in Makati wherein he has two children with De Castro, saw the respondent Judge Brillantes sleeping in his bed. The houseboy claimed that the judge had been cohabiting with De Castro. Atienza files charges on the judge on the ground that the respondent is already married and has five children. Judge denies the claim of being married stating that the alleged union wasnt valid because it lacked a marriage license. Although upon the request of the womans parents they held another marriage ceremony later that year, they still didnt apply for a marriage license. The woman abandoned the Judge nineteen years ago leaving their children to his care. He claims that Article 40 of the Family Code does not apply to him considering that his first marriage took place in 1965 and was thus governed by the Civil Code of the Philippines; while the second marriage on 1991, governed by the Family Code. Issue: WON the judge can contract a second marriage without a judicial declaration of nullity. Held/Ratio: No. Article 40 is applicable to remarriages entered into after the effectivity of the Family Code in 1988 regardless of the date of the first marriage. Besides, under Article 256 of the FC, said Article is given retroactive effect since it does not prejudice or impair any vested right. His failure to secure a

marriage license on two possible occasions betrays his sinister motives and bad faith as a lawyer and judge. Dismissed from service.

Issue: Whether the subsequent marriage of the deceased husband is valid? Whether the Judge can be charged of Gross Ignorance of Law?

Herminia Borja-Manzano vs. Judge Roque Sanchez, MRC, Infanta, Pangasinan

Nature: Administrative Complaint Sanchez for Gross Ignorance of Law against Judge

Held: Judicial declaration of nullity of a previous marriage is needed for purposes of remarriage. The Family Code can be applied retroaCHictively so long as vested rights will not be impaired by its application. Ruling: No. The subsequent marriage of the late David Manzano with Luzviminda Payao is null and void, because, even though the two cohabited for seven years, still both of them had legal impediments to be married again because of their previous valid marriages. Not all of the requirements of Article 34 (Provision on Legal Ratification of Marital Cohabitation) are present in the case at bar. It is significant to note that in the affidavits of David Manzano and Luzviminda Payao before respondent Judge himself, expressly stated the fact of their prior existing marriage. Yes. Judge Sanchez is guilty of Gross Ignorance of Law. Respondent Judge knew or ought to know that a subsisting previous marriage is a diriment impediment, which would make the subsequent marriage null and void Note: Article 34 of the Family Code: For this provision on legal ratification of marital cohabitation to apply, the following requisites must concur: 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. The fact of absence of legal impediment between the parties must be present at the time of marriage; 4. The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]; and 5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. MARIA APIAG, TERESITA CANTERO SECUROM and GLICERIO CANTERO, complainants, vs. JUDGE ESMERALDO G. CANTERO, respondent February 12, 1997, Panganiban., J. Facts: Maria Apiag filed an administrative case against her husband, respondent judge, Esmeraldo G. Cantero. The Court of Appeals decided that the respondent acted in grave misconduct. Defendant Judge, without his consent freely given, married in a drama presentation in 1947 and had two children with the plaintiff by that marriage. . After the second child was born, respondent judge left for no reason. For several

Facts: Herminia Borja-Mariano was married to the late David Manzano on May 21, 1966. They had four children. However, on March 22, 1993, David contracted another marriage with Luzviminda Payao before Judge Roque Sanchez herein respondent judge while the first one was still in effect. Respondent contends that he did not know that the two were only legally separated and that all he knew was the two had been cohabiting for seven years. During that time, Payao was also married to Domingo Relos. Payao and David, had, prior to the solemnization, issued an affidavit stating that they were both married; however due to incessant quarrels, they both left their families and they no longer communicated with them. They lived together as husband & wife for 7 years. Judge agreed to solemnize the marriage. Herminia filed charges of gross ignorance of the law against Sanchez. Respondent Judge alleges that on the basis of those affidavits, he agreed to solemnize the marriage in question in accordance with Article 34 of the Family Code which states that no license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least 5 years. Herminia Manzano avers that she was the lawful wife of the late David Manzano, having been married to him on May 21, 1966 in Caloocan City. Four children were born out of that marriage. On March 22, 1993, her husband contracted another marriage with one Luzviminda Payao before respondent Judge. When respondent Judge solemnized said marriage, he knew or ought to know that the same was void and bigamous, as the marriage contract clearly stated that both contracting parties were "separated." Respondent Judge, on the other hand, claims in his Comment that when he officiated the marriage between Manzano and Payao he did not know that Manzano was legally married. What he knew was that the two had been living together as husband and wife for seven years already without the benefit of marriage, as manifested in their joint affidavit. According to him, had he known that the late Manzano was married, he would have advised the latter not to marry again; otherwise, he (Manzano) could be charged with bigamy. He then prayed that the complaint be dismissed for lack of merit and for being designed merely to harass him.

years, judge was never heard of till he resurfaced in the plaintiffs hometown. Plaintiffs, through their counsel asked respondent for support and for the children to be declared legal heirs. Plaintiff begged for support but they were ignored. This consequently led to a formal demand of support which still elicited no response. Complainants subsequently learned that respondent has contracted another marriage with whom he had 5 children. Respondent misrepresented himself in his declaration of assets and liabilities by putting the name of the second wife on the said statement. He contended that the first marriage was void because he and his first wife never cohabited and he was forced into the marriage. He added that he and the petitioners have settled amicably and he has agreed to give the children of his retirement benefits. He died while the case was being deliberated by the SC but the court nevertheless resolved the case to determine whether there would be a forfeiture of the death and retirement benefits of the respondent. Issue: WON the previous marriage of the judge was valid.

May 8, 1988, Julia went to the US to work as a nurse despite Leouels opposition. 7 months later, January 1, 1989 she and Leouel got to talk for the first time and she promised to return home upon the expiration of her contract on July 1989. She never went home that year. In 1990, Leouel got the chance to be in the US due to a military training from April 1-August 25. During his stay, he desperately tried to locate his wife but to no avail. Leouel, in an effort to at least have his wife come home, filed to nullify their marriage due to Julias psychological incapacity. Respondent has for the last seven years since filing for the annulment, resided in the US and has contacted the petitioner only twice. Leouel asserted that due to Julias failure to return home or at least communicate with him even with all his effort constitutes psychological incapacity. Julia attacked the complaint and she said that it is Leouel who is incompetent and denied the claim. The case was dismissed by the RTC which was affirmed by CA. ISSUE: Whether or not psychological incapacity is attendant to the case at bar. HELD: NO. DISMISSED. RATIO: SC defined psychological incapacity as to no less than a mental (not physical) incapacity that causes a party to be truly cognitive 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 psychological condition must exist at the time the marriage is celebrated. For psychological incapacity to be proven there must be a real inability to commit oneself to the essential obligations of marriage. Mere difficulty of assuming these obligations which could be overcome by normal effort does not constitute incapacity. Dr. Veloso of the Metropolitan Marriage Tribunal gave 3 characteristics of psychological incapacity: gravity that would really render one incapable of carrying out the ordinary duties in marriage j u r i d i c a l a n t e c e de n c e m e a n s it s h o u l d b e r o o te d i n h i s t or y , e x i s t i n g pr i o r t o t h e m a r r ia g e incurability including cure that is beyond the partys m ea n s . C i r c u m s t a n c e s o f t he c a s e a t b a r d o not amount to psychological incapacity REPUBLIC OF THE PHILS. v. CA and MOLINA 268 SCRA 198 Feb. 13, 1997 Nature: Petition for Review on Certiorari

Held/Ratio: No. Since the second marriage occurred

before the promulgation of Wiegel v Sempio-Diy and before the effectivity of the FC, the doctrine of Odayat v. Amante will be applied in favor of the respondent. Although there did not exist any grave misconduct (since the acts were committed in relation to the judges personal life), he acted in impropriety when he failed and refused to attend to the needs of his children. Although it is undisputed that the judge did not obtain a judicial declaration of nullity of his first marriage, pursuant to the jurisprudence prevailing at the time of the second marriage, it has been established that no such declaration was necessary, he will still be held administratively liable because of his position as a judge of high principles and ethics. Considering that he was remiss in attending to the needs of the children of his first marriage (whose filiations he did not deny), the court would impose a penalty. But since he is dead, the case will merely be dismissed.

SANTOS vs. BEDIA-SANTOS [240 SCRA 20] Nature: Petition for Review on Certiorari Facts: Leouel Santos, who then held the rank of First Lieutenant in the Philippine Army, met Julia BediaSantos in Iloilo City. In September 20, 1986, they got married before MTC Judge Cornelio G. Lazaro followed shortly thereafter by a church wedding. The couple later lived with Julias parents. Julia gave birth to a son on July 18, 1987. Their marriage, however, was marred by the frequent interference of Julias parents as averred by Leouel. The couple also occasionally quarrels about as to, among other things, when should they start living independently from Julias parents. On

Facts: On April 14, 1985, plaintiff Roridel O. Molina married Reynaldo Molina at San Agustin Church in Manila which union bore a son, Andre O. Molina. After a year of marriage, Reynaldo showed signs of immaturity and irresponsibility as a husband and father as he preferred to spend more time with his friends, depended on his parents for aid and assistance, and was never honest with his wife in regard to their finances resulting in frequent quarrels between them. Reynaldo was relieved of his job in Manila, and since then Roridel had been the sole breadwinner of the family; that in October 1986 the couple had a very intense quarrel, as a result of which their relationship was estranged. In March 1987, Roridel resigned from her job in Manila and went to live with her parents in Baguio City. A few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them. Respondent alleged that her husband Reynaldo Molina was psychologically incapacitated and it would be to the couples best interest to have their marriage declared null and void. The Court of Appeals and Regional Trial Court upheld that the marriage was indeed, void. Issue: Do irreconcilable differences and conflicting personalities constitute psychological incapacity? Held: No. Marriage is valid. Psychological incapacity should refer to a mental and not physical incapacity. There is no clear showing that the psychological defect spoken of is an incapacity. It appears to be more of a "difficulty," if not outright refusal or neglect in the performance of some marital obligations. Mere showing of "irreconcilable differences and conflicting personalities" is no wise constitutes psychological incapacity. 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. The evidence merely adduced that Roridel and her husband could not get along with each other. There has been no showing of the gravity of the problem, neither its juridical antecedence nor its incurability. It is confined to the most serious personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. It is not enough that the parties failed to meet their responsibilities. It is essential that they must be shown as incapable of doing so. Ruling: Judgment reversed and set aside. Molina Guidelines in Applying Article 36 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. 2. The root cause of the psychological incapacity must be (a) medically or clinically identified,

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6.

(b) alleged in the complaint, (c) sufficiently proven by the experts and (d) clearly explained in the decision. The person alleged to be incapacitated must be psychologically ill to the extent that the person could not have known the obligations he was assuming or knowing them could not have given a valid assumption thereof. 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 vows. Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or relative only in regard to the other spouse. Such incapacity must also be relevant to the assumption of marriage obligations. Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. The illness must be shown as downright inability or incapacity. The essential marital obligations are: a. The husband and wife are obligated to live together, observe mutual love, respect and fidelity, and render mutual help and support (FC Article 68). b. 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 (FC Article 69). c. 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 their separate properties (FC Article 70). d. The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70 (FC Article 71).

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.

BRENDA B. MARCOS, petitioner, vs. WILSON G. MARCOS, respondent. Facts: Brenda and Wilson were married twice: (1) on September 6, 1982 which was solemnized by Judge Eriberto H. Espiritu at the Municipal Court of Pasig ; and (2) on May 8, 1983 which was solemnized by Rev. Eduardo L. Eleazar, Command Chaplain, at the Presidential Security Command Chapel in Malacaang Park, Manila. Out of their marriage, five (5) children were born. Appellant Wilson G. Marcos joined the Armed Forces of the Philippines in 1973. Later on, he was transferred to the Presidential Security Command in Malacaang during the Marcos Regime. Appellee Brenda B. Marcos, on the other hand, joined the Women's Auxilliary Corps under the Philippine Air Force in 1978. After the Edsa Revolution, both of them sought a discharge from the military service. They first met sometime in 1980 when both of them were assigned at the Malacaang Palace, she as an escort of Imee Marcos and he as a Presidential Guard of President Ferdinand Marcos. Through telephone conversations, they became acquainted and eventually became sweethearts. After their marriage on September 6, 1982, they resided at No. 1702 Daisy Street, Hulo Bliss, Mandaluyong, a housing unit which she acquired from the Bliss Development Corporation when she was still single. After the downfall of President Marcos, he left the military service in 1987 and then engaged in different business ventures that did not however prosper. As a wife, she always urged him to look for work so that their children would see him, instead of her, as the head of the family and a good provider. Due to his failure to engage in any gainful employment, they would often quarrel and as a consequence, he would hit and beat her. He would even force her to have sex with him despite her weariness. He would also inflict physical harm on their children for a slight mistake and was so severe in the way he chastised them. Thus, for several times during their cohabitation, he would leave their house. In 1992, they were already living separately. All the while, she was engrossed in the business of selling "magic uling" and chickens. While she was still in the military, she would first make deliveries early in the morning before going to Malacaang. When she was discharged from the military service, she concentrated on her business. Then, she became a supplier in the Armed Forces of the Philippines until she was able to put up a trading and construction company, NS Ness Trading and Construction Development Corporation. The 'straw that broke the camel's back' took place on October 16, 1994, when they had a bitter quarrel. As they were already living separately, she did not want him to stay in their house anymore. On that day, when

she saw him in their house, she was so angry that she lambasted him. He then turned violent, inflicting physical harm on her and even on her mother who came to her aid. The following day, October 17, 1994, she and their children left the house and sought refuge in her sister's house. On October 19, 1994, she submitted herself [to] medical examination at the Mandaluyong Medical Center where her injuries were diagnosed as contusions. Sometime in August 1995, she together with her two sisters and driver, went to him at the Bliss unit in Mandaluyong to look for their missing child, Niko. Upon seeing them, he got mad. After knowing the reason for their unexpected presence, he ran after them with a samurai and even [beat] her driver. At the time of the filing of this case, she and their children were renting a house in Camella, Paraaque, while the appellant was residing at the Bliss unit in Mandaluyong. In the case study conducted by Social Worker Sonia C. Millan, the children described their father as cruel and physically abusive to them.The appellee submitted herself to psychologist Natividad A. Dayan, Ph.D., for psychological evaluation while the appellant on the other hand, did not. RTC the marriage is void CA reversed the decision of RTC not psychological incapacity because there is a need for an examination Issues: I. Is there a need for Personal Medical Examination of Respondent to prove psychological incapacity? II. Whether or not the totality of evidence presented in this case and the demeanor of all the witnesses should be the basis of the determination of the merits of the Petition. HELD: NO. The SC rules in the negative. We agree with petitioner that the personal medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity. Nevertheless, the totality of the evidence she presented does not show such incapacity. RATIO: Psychological incapacity,

as a ground for declaring the nullity of a marriage, may be established by the totality of evidence
presented. There is no requirement, however, that the respondent should be examined by a physician or a psychologist as a condition sine qua non for such declaration. Although SC is sufficiently convinced that respondent failed to provide material support to the family and

may have resorted to physical abuse and abandonment, the totality of this acts does not lead to a conclusion of psychological incapacity on his part. There is absolutely no showing that his defects were already present at the inception of the marriage or that they are incurable. Article 36 is NOT to be equated with legal separation, in which the grounds need not be rooted in psychological incapacity but on physical violence, moral pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism, sexual infidelity, abandonment and the like. At best the evidence presented by petitioner refers only to grounds for legal separation, not for declaring a marriage void. LENI O. CHOA, petitioner, vs. ALFONSO C. CHOA, respondent. G.R. No. 143376. Nov. 26, 2002 Facts: Leni and Alfonso Choa were married on March 15, 1981. They had two children: Cheryl Lynne and Albryan. Respondent Alfonso Choa filed a complaint/petition for the annulment of his marriage to petitioner Leni Choa on the grounds of psychological incapacity. Petitioner filed a demurrer of evidence (an objection or exception by one of the parties in an action at law to the effect that the evidence which the adversary produced is insufficient in point of law to make out a case and sustain the issue). The demurrer of evidence was dismissed by the appellate court which upheld that the claims of Alfonso Choathat her wife had filed several lawsuits against him indicating psychological incapacity and that his wife was immature, carefree and had no intentions of procreative sexualityas sufficient evidence. Issue: Whether or not Cheryl is psychologically incapacitated. Held: No. Petition granted. Marriage is still valid. Psychological incapacity must be characterized by gravity, juridical antecedence and incurability. The testimony of the expert doctor and the respondent only showed that the two cannot get along with each other. Ratio: Alfonso presented insufficient evidence to prove Lenis incapacity. The totality of evidence presented by respondent was completely insufficient to sustain a finding of psychological incapacity -- more so without any medical, psychiatric or psychological examination. Grounds of Alfonso: lack of attention to their children, immaturity, and lack of intention to procreate are not sufficient to render one as psychologically incapable. Reasons should be grave, with juridical antecedence and incurable. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there should be 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. The physician, in his testimony established merely that the spouses had an "incompatibility," a "defect" that could possibly be treated or alleviated through psychotherapy. We need not expound further on the patent insufficiency of the expert testimony to establish the psychological incapacity of petitioner. CHI MING TSOI vs. CA [266 SCRA 234] Facts: On May 22, 1988, Gina Lao married Chi Ming Tsoi. Respondent alleged that since their marriage in May 22, 1988 until March 15, 1989, the couple has not consummated their marriage. There was no sexual contact between them. Defendant contended that it was the wifes fault that their marriage was not consummated. A physician examined both plaintiff and defendant and attested that neither of them had any physical problem. Defendant alleged that the wife was afraid to consummate the marriage and afraid that she would have to return the jewelry given to her. The defendant insisted that their marriage will remain valid because they are still very young and there is still a chance to overcome their differences. The defendant submitted himself to a physical examination. His penis was examined and the doctor said that the petitioner is not impotent. The doctor asked the defendant to masturbate to find out whether or not he has an erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his penis is not in its full length. But, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman. Respondent Gina Lao Tsoi filed for annulment of her marriage to petitioner Chi Ming Tsoi on the ground of psychological incapacity with the RTC of Quezon City. The RTC granted annulment which was affirmed by CA. Issue: Is the failure of the husband to have sexual intercourse with his wife from the time of the marriage until their separation on March 15, 1989 a ground for psychological incapacity. Held: The fact still stands that it has not been consummated. There may be physical and not psychological reasons as to why the marriage should not be annulled but the evidence to that effect was not presented. Catholic marriage tribunals attribute the causes to psychological incapacity than stubborn refusal. The natural order between spouses is sexual intimacy. Ruling: One of the essential marital obligations under the Family Code is to procreate children based on the universal principle that procreation of children trough sexual cooperation is the basic end of marriage. In

the case at bar, the senseless and protracted refusal of one of the parties to fulfil the above marital obligation is equivalent to psychological incapacity. Judgement affirmed. ANTONIO vs. REYES [484 SCRA 353] Facts: Leonilo Antonio, 26 years of age, and Marie Yvonne Reyes 36 years of age met in 1989. They got married at Manila City Hall and then a subsequent marriage on Dec 6, 1990. They had a child who died 5 months later after it was born. Reyes concealed the fact that she previously had an illegitimate son introducing the boy as an adopted child of the family. She fabricated a story that her brother-in-law attempted to rape and kill her. She misrepresented herself as a psychiatrist. She claimed to be a successful singer when no member of her family witnessed her alleged singing activities. She invented friends from the music industry who wrote letters to Antonio touting her as the number one moneymaker. Antonio later found out that she was the one who actually wrote and sent the letters. She altered her pay slip to represent herself as one of greater means. She exhibited insecurities and jealousies over Antonio to the extent of calling his officemates to monitor his whereabouts. Reyes persistently lied about herself, the people around her, her occupation, income, educational attainment and other events or things. They were separated in August 1991 and after attempt for reconciliation, he finally left her for good in November 1991. On Mar 8, 1993, Antonio filed a petition to have their marriage declared null and void and presented two expert witnesses who concluded that her persistent lying and paranoia made her psychologically incapacitated to perform her marriage obligations. While the case was pending, on Mar 30, 1995, the marriage of the parties was annulled by the Catholic Church. RTC granted the petition, CA reversed. ISSUE: WON Marrie psychologically incapacitated. Yvonne Reyes was

case-to-case perception. Clinical diagnosis of incurability was not yet required when expert witnesses testified in 1994-95. SANTOS V. CA, promulgated by the SC in Jan 1995, in its doctrinal rule omitted any reference to incurability as a characteristic of psychological incapacity. Hence, there was no legal impelling cause to prove incurability during trial. In this case, Court is convinced by the totality of the evidence that Reyes psychological incapacity is incurable. 4. Conclusion of canonical bodies, though not controlling, hold sway since they were drawn from a similar recognition as the trial court. ROSE YAP-PARAS vs. JUSTO J. PARAS August 2, 2007 FACTS: On May 21, 1964, petitioner Rosa Yap married respondent Justo J. Paras in Bindoy, Negros Oriental. They begot four (4) children, namely: Raoul (deceased), Cindy Rose (deceased), Dahlia, and Reuel. Twenty-nine (29) years thereafter, or on May 27, 1993, Rosa filed with the Regional Trial Court (RTC), Branch 31, Dumaguete City, a complaint for annulment of her marriage with Justo, under Article 36 of the Family Code, docketed as Civil Case No. 10613. She alleged that Justo is psychologically incapacitated to exercise the essential obligations of marriage as shown by the following circumstances: (a) he dissipated her business assets and forged her signature in one mortgage transaction; (b) he lived with a concubine and sired a child with her; (c) he did not give financial support to his children; and (d) he has been remiss in his duties both as a husband and as a father. She met Justo in 1961 in Bindoy. She was then a student of San Carlos University, Cebu City. He courted her, frequently spending time at her "Botica." Eventually, in1964 convinced that he loved her, she agreed to marry him. Their wedding was considered one of the "most celebrated" marriages in Bindoy. Sometime in 1975, their daughter Cindy Rose was afflicted with leukemia. It was her family who paid for her medication. Also, in 1984, their son Raoul was electrocuted while Justo was in their rest house with his "barkadas." He did not heed her earlier advice to bring Raoul in the rest house as the latter has the habit of climbing the rooftop. To cope with the death of the children, the entire family went to the United States. However, after three months, Justo abandoned them and left for the Philippines. Upon her return to the Philippines, she was shocked to find her "Botica" and other businesses heavy in debt and he disposed without her consent a conjugal piece of land. At other times, he permitted the municipal government to take gasoline from their gas station free of charge. His act of maintaining a mistress and siring an illegitimate child was the last straw that prompted her to file the present case. She found that after leaving their conjugal house in 1988, Justo lived with Jocelyn Ching. Their cohabitation resulted in the birth of a baby girl, Cyndee Rose, obviously named after her (Rosa) and Justos deceased daughter Cindy Rose Paras.

HELD: YES. Petition granted. Marriage VOID. RATIO: 1. A person unable to distinguish between fantasy and reality would similarly be unable to comprehend the legal nature of the marital bond and the corresponding obligations attached to marriage. 2. Present case sufficiently satisfies guidelines in MOLINA (REP. V. CA). Psychological incapacity was sufficiently proven by expert witnesses & root cause has been medically identified. It clearly existed at the time of and even before the marriage. Its gravity is sufficient to prove her disability to assume the essential obligations of marriage based on love, trust and respect. 3. MOLINA (1997) is not set in stone and interpretation of Art 36 FC relies heavily on a

He also denied forging her signature in one mortgage transaction. He maintained that he did not dispose of a conjugal property and that he and Rosa personally signed the renewal of a sugar crop loan before the banks authorized employee. He did not abandon his family in the United States. For his part, he was granted only three (3) months leave as municipal mayor of Bindoy, thus, he immediately returned to the Philippines. He spent for his childrens education. At first, he resented supporting them because he was just starting his law practice and besides, their conjugal assets were more than enough to provide for their needs. He admitted though that there were times he failed to give them financial support because of his lack of income. What caused the inevitable family break-out was Rosas act of embarrassing him during his birthday celebration in 1987. She did not prepare food for the guests. When confronted, she retorted that she has nothing to do with his birthday. This convinced him of her lack of concern. This was further aggravated when she denied his request for engine oil when his vehicle broke down in a mountainous and NPA-infested area. As to the charge of concubine, he alleged that Jocelyn Ching is not his mistress, but her secretary in his Law Office. She was impregnated by her boyfriend, a certain Grelle Leccioness. Cyndee Rose Ching Leccioness is not his daughter. After trial or on February 28, 1995, the RTC rendered a Decision upholding the validity of the marriage. It found that: (a) Justo did not abandon the conjugal home as he was forced to leave after Rosa posted guards at the gates of their house; (b) the conjuga lassets were sufficient to support the family needs, thus, there was no need for Justo to shell out his limited salary; and (c) the charge of infidelity is unsubstantiated. The RTC observed that the relationship between the parties started well, negating the existence of psychological incapacity on either party at the time of the celebration of their marriage. And lastly, it ruled that there appeared to be collusion between them as both sought the declaration of nullity of their marriage. On October 18, 2000, this Court rendered its Decision finding him guilty of falsifying Rosas signature in bank documents, immorality, and abandonment of his family. He was suspended from the practice of law, thus: the respondent is suspended from the practice of law for SIX (6) MONTHS on the charge of falsifying his wifes signature in bank documents and other related loan instruments; and for ONE (1) YEAR from the practice of law on the charges of immorality and abandonment of his own family, the penalties to be served simultaneously. Let notice of this Decision be spread in respondents record as an attorney, and notice of the same served on the Integrated Bar of the Philippines and on the Office of the Court Administrator for circulation to all the courts concerned. On December 8, 2000, the Court of Appeals affirmed the RTC Decision in the present case, holding that "the evidence of the plaintiff (Rosa) falls short of the standards required by law to decree a nullity of marriage." It ruled that Justos alleged defects or idiosyncrasies "were sufficiently explained

by the evidence," Rosa contends that this Courts factual findings in A.C. No. 5333 for disbarment are conclusive on the present case. Consequently, the Court of Appeals erred in rendering contrary factual findings. Also, she argues that she filed the instant complaint sometime in May, 1993 ISSUES: 1) Whether the factual findings of this Court in A.C. No. 5333 are conclusive on the present case; 2) Whether a remand of this case to the RTC for reception of expert testimony on the root cause of Justos alleged psychological incapacity is necessary; and 3) Whether the totality of evidence in the case shows psychological incapacity on the part of the Justo. HELD: 1) A reading of the Court of Appeals Decision shows that she has no reason to feel aggrieved. In fact, the appellate court even assumed that her charges "are true," but concluded that they are insufficient to declare the marriage void on the ground of psychological incapacity. Justo's alleged infidelity, failure to support his family and alleged abandonment of their family home are true, such traits are at best indicators that he is unfit to become an ideal husband and father. However, by themselves, these grounds are insufficient to declare the marriage void due to an incurable psychological incapacity. These grounds, we must emphasize, do not manifest that he was truly in cognitive of the basic marital covenants that he must assume and discharge as a married person. While they may manifest the "gravity" of his alleged psychological incapacity, they do not necessarily show incurability, such that while his acts violated the covenants of marriage, they do not necessarily show that such acts show an irreparably hopeless state of psychological incapacity which prevents him from undertaking the basic obligations of marriage in the future. 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 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, were 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. 3) ART. 36. A marriage contracted by a party who, at the time of celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage shall likewise be void even if

such incapacity becomes manifest only after its solemnization. Psychological incapacity must be characterized by (a) gravity; (b) juridical antecedence; and (c) incurability Republic of the Philippines vs Norma CuisonMelgar [486 SCRA 177] Facts: Norma got married on March 27, 1965 to Eulogio and on August 19, 1996, she filed a petition for declaration of nullity of her marriage on the ground of Psychological incapacity wherein the grounds of Eulogio psychological incapacitated are his immaturity, habitual alcoholism, unbearable jealousy, maltreatment, constitutional laziness, and abandonment of his family since December 27, 1985. Issue: Whether or not the alleged psychological incapacity of respondent is in the nature contemplated by Art 36 of the Family Code. Held: No. The Court cannot presume psychological defect from the mere fact of Eulogios immaturity, habitual alcoholism, unbearable jealousy, maltreatment, constitutional laziness, and abandonment of his family. These circumstances by themselves cannot be equated with psychological incapacity within the contemplation of the Family Code. It must be shown that these acts are manifestations of a disordered personality which make Eulogio completely unable to discharge the essential obligations of the marital state. It is not enough to prove that a spouse failed to meet his responsibility and duty as a married person and it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness. There was no proof of a natal or supervening disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates a person from accepting and complying with the obligations essential to marriage. Petition is DENIED. Conflicting Decisions MERCADO vs. TAN of SC in a case of

(a) The first marriage was annulled or dissolved; (b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court." The Court held in those two cases that the said provision plainly makes a subsequent marriage contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no judicial decree is

necessary to establish its invalidity, as distinguished from mere annullable marriages.

ROBERTO DOMINGO, petitioner, vs. COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-in-Fact MOISES R. AVERA, respondents. FACTS: Soledad Domingo, married with Roberto Domingo in 1976, filed a petition for the declaration of nullity of marriage and separation of property against petitioner Roberto Domingo. She did not know that Domingo had been previously married to Emerlinda dela Paz in 1969. She came to know the previous marriage when the first wife sued petitioner for bigamy. Respondent claimed that the petitioner has been dependent on her and since she left to work in Saudi, she has amassed some P350,000 worth of properties which were under the possession and administration of herein petitioner until respondent found out about the first marriage. Furthermore, when she came home from Saudi during her one-month leave from work, she discovered that Roberto cohabited with another woman and had been disposing some of her properties which are administered by Roberto. The latter claims that because their marriage was void ab initio, the declaration of such voidance is unnecessary and superfluous. On the other hand, Soledad insists the declaration of the nullity of marriage not for the purpose of remarriage, but in order to provide a basis for the separation and distribution of properties acquired during the marriage. ISSUE: Whether or not a petition for judicial declaration should only be filed for purposes of remarriage. HELD: Although it is stated in the Family Code that judicial declaration is needed for purposes of remarrying, it does not expressly state that it is exclusive for that purpose alone. The Family Code

People vs. Mendoza and People vs. Aragon: The ruled that there was no need for a judicial declaration of its nullity. Hence, the accused did not commit bigamy when the accused married for the third time In subsequent cases: the Court impressed the need for a judicial declaration of nullity. In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage Law), which provided: Illegal marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void from its performance, unless:

provides that among the effects of the judicial declaration is the immediate separation of property. Petition is DENIED, decision of respondent court (CA) AFFIRMED. The declaration of the nullity of marriage is indeed required for purpose of remarriage. However, it is also necessary for the protection of the subsequent spouse who believed in good faith that his or her partner was not lawfully married marries the same. With this, the said person is freed from being charged with bigamy. When a marriage is declared void ab initio, law states that final judgment 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 previous judicial proceedings. Soledads prayer for separation of property will simply be the necessary consequence of the judicial declaration of absolute nullity of their marriage. Hence, the petitioners suggestion that for their properties 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. REINEL ANTHONY B. DE CASTRO, Petitioner, vs. ANNABELLE ASSIDAO-DE CASTRO, Respondent. FACTS: Reinel de Castro filed a petition before the SC for review of the Decision of the Court of Appeals, declaring that Reianna Tricia A. De Castro is the legitimate child of the petitioner; and that the marriage between petitioner and respondent is valid until properly nullified by a competent court. This petition elevated from the complaint originally filed by the now respondent Annabelle Assidao-de Castro for support against the petitioner in the Regional Trial Court of Pasig City. The lower court declared the said marriage void, since it was solemnized without the valid marriage license but ordered the petitioner to give support to the child as the natural father. The petitioner contends that the lower court properly annulled his marriage with respondent because the marriage was celebrated without a marriage license. He stresses that the affidavit they executed, in lieu of a marriage license, contained a false narration of facts, the truth being that he and respondent never lived together as husband and wife. Also, petitioner claims that in view of the nullity of his marriage with respondent and his vigorous denial of the childs paternity and filiations, the Court of Appeals gravely erred in declaring the child as his legitimate child. ISSUES: (1) Whether or not the trial court had the jurisdiction to determine the validity of the marriage between petitioner and respondent in an action for support and

(2) whether petitioner.

or not the child is the daughter of

HELD: For the first issue, the trial court has indeed jurisdiction in determining the validity of the marriage between petitioner and respondent. It is said, other than for purposes of remarriage, no judicial action is necessary to declare a marriage an absolute nullity. But 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 validity of said marriage so long as it is essential to the determination of the case. 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. And for the second issue, the Court finds the child as the illegitimate child of the petitioner and hence, entitled to support from his father. The Certificate of Live Birth of the child lists petitioner as the father. In addition, petitioner, in an affidavit waiving additional tax exemption in favor of respondent, admitted that he is the father of the child.
Initially, petitioner and respondent (sweethearts since 1991) got married on 13 March 1995 without a marriage license since they did not make use of such marriage license until it expired. They were solemnized by a Regional Trial Court Judge Bernabe because they executed an affidavit on the same date, stating that they had been living together as husband and wife for at least five years. Prior of such marriage, sometime in October 1994 they had their first carnal knowledge, and had regularly engaged in sex thereafter. Nevertheless, after the ceremony, petitioner and respondent went back to their respective homes and did not live together as husband and wife. On 13 November 1995, respondent gave birth to a child named Reinna Tricia A. De Castro. Since the childs birth, respondent has been the one supporting her out of her income as a government dentist and from her private practice.

Tongol vs Tongol G.R. No. 157610, October 19, 2007 Facts: On August 19, 1996, Orlando filed before the RTC of Makati City a verified petition for the declaration of nullity of his marriage with Filipinas on the ground that the latter is psychologically incapacitated to comply with her essential marital obligations. OrlandoTongol alleged that Filipinas was unable to perform her duty as a wife because of Filipinas unbearable attitude that will lead to their constant quarrel. In her Answer with Counter-Petition, Filipinas admitted that efforts at reconciliation have been fruitless and that their marriage is a failure. However, she claims that their marriage failed because it is Orlandos insufficiency to fulfill his obligation as

married man. Both parties underwent a psychological exam which proved that the respondent Filipinas Tongol has a psychological insufficiency. Issue: Does the psychological problem of Mrs. Filipina Tongol enough to compel the court to nullify their marriage? Ruling: No, as elucidated in Molina the psychological incapacity must exist during the ceremony of the marriage, the psychological incapacity must be apparent as to the extent that the other party is incapable the significance of their marriage and lastly, the malady must be incurable. The definition or manifestation of marriage must be within the scope of article 36of the Family Code. As in the present case, the psychological insufficiency of Mrs.Tongol is not severe that would render her incapable to recognize the sanctity of her marital contract with her husband. Second, Dr.Vellegas failed to prove that the ailment is incurable. As to the facts of the psychological examination report says: the emotional malady is caused merely by rejection of Mrs.Tongol by her mother when she was young. Furthermore, the facts of the case did not show that Mrs.Tongol did not care about the welfare of their children. And the financial issue as being cited in the facts, the court deemed that such phenomena is natural in every marriage and can be settled easily. Hence the court dismissed the petition of the nullity of marriage. NIAL vs. BAYADOG [328 SCRA 122, March 14, 2000] Facts: Petitioners request the annulment of the marriage of their father to Norma Bayadog. On September 26, 1974, Pepito Nial was married Teodulfa. On April 24, 1985, he shot and killed her. After 1 year and 8 months, December 11, 1986, Pepito married Norma Bayadog, the respondent herewith. The marriage was contracted without a license. Instead, the couple signed an affidavit stating that they had been cohabiting as husband and wife for 5 years. The code in effect during the time of the marriage was the Civil Code. According to Article 76 of the said code, marriage between a man and a woman who have been living together for more than 5 years no longer requires a marriage license. Pepito died in February 19, 1997 in a car accident. After Pepito died, his heirs by his first marriage filed a petition for declaration of nullity on the marriage of their father with Norma Badayog on the ground of lack of marriage license. Norma Badayog contends that the ground have no legal basis for her marriage to Pepito according to Article 34 of the Family Code no marriage license is necessary for person who have cohabited for at least five years. The respondent also contends that petitioners are not among those allowed by the law to file a suit for declaration of nullity of her marriage to Pepito. The trial court ruled in favor of the respondent on the ground that indeed the Family Code is silent as to

situation. The Petition should have been filed before the death of Pepito and not after his death. Thus, the petitioner appealed to the Supreme Court. Issue: (1) Whether or not the respondent is right to contend that no need of marriage license was necessary for Pepito and her for they have cohabited for at least five years. (2)Whether or not the second marriage of Pepito valid. Held: Marriage of Pepito Ninal Sr. and Norma Bayadog is null and void. It is evident that only 20 months elapsed between the time of the death of the first wife and the marriage with the second wife. Had the two been cohabiting for five years, such cohabitation, and the marriage, was not within the capacity of the deceased. The children do not have standing to cause action but, because the marriage was null and void, it is likewise non-existent. A period of cohabitation is characterized by exclusivity and continuity. There should be no legal impediment on either party to marry. Pepitos previous marriage to Teodulfa is a legal impediment disqualifying him to the exception of a marriage license. Thus, his second marriage should have a marriage license to be valid. In this case, the marriage of Pepito and Norma lacking the formal requisite of a marriage license is therefore void. Thus, void marriages can be questioned even after the death of either party. Article 40 of the Family Code expressly provides that there must be a judicial declaration of nullity can be based in final judgment to that effect.