VOID AND VOIDABLE MARRIAGES

E. Void Marriages
1. General Rule FC Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n) 2. Absence of the Requisites FC Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians; (2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so; (3) Those solemnized without license, except those covered the preceding Chapter; (4) Those bigamous or polygamous marriages not failing under Article 41; (5) Those contracted through mistake of one contracting party as to the identity of the other; and (6) Those subsequent marriages that are void under Article 53. FC Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of twenty-one years. Emancipation also takes place: (1) By the marriage of the minor; or

(2) By the recording in the Civil Register of an agreement in a public instrument executed by the parent exercising parental authority and the minor at least eighteen years of age. Such emancipation shall be irrevocable. (397a, 398a, 400a, 401a) (Repealed by RA 6809) 3. Bigamous and Polygamous Relationships FC Art. 35. The following marriages shall be void from the beginning: (4) Those bigamous or polygamous marriages not failing under Article 41; FC Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe. However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect. (As amended by Executive Order 227) (n) FC Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n). FC Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) FC Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) RPC Article 349. Bigamy. - The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before
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the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

even assuming that appellant's second marriage to Olga Lema is void, he is not exempt from criminal liability, in the absence of a previous judicial annulment of said bigamous marriage

CASES
PEOPLE v. MENDOZA Nature: Appeal from CFI judgment Ponente: PARAS, C.J Date: September 28, 1954 DOCTRINE: 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 annulable marriages FACTS: Relevant Provision of Law: Section 29 of the Marriage Law (Act 3613) [1st Marriage] On August 5, 1936, the appellant Arturo Mendoza and Jovita de Asis were married in Marikina, Rizal. [2nd Marriage] On May 14, 1941, during the subsistence of the first marriage, the appellant was married to Olga Lema in the City of Manila. On February 2, 1943, Jovita de Asis died. (NOTE: the ratio of the decision stated that the first spouse, Jovita de Asis, has been absent for seven consecutive years or generally considered as dead) [3rd Marriage] On August 19, 1949, the appellant contracted another marriage with Carmencita Panlilio in Calamba, Laguna. This last marriage gave rise to his prosecution for and conviction of the crime of bigamy. Appellant contends, that his marriage with Olga Lema [2nd Marriage] on May 14, 1941 is null and void and, therefore, non-existent, having been contracted while his first marriage with Jovita de Asis August 5, 1936 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 [1st wife]. OSG contends,

CFI: GUILTY OF THE CRIME OF BIGAMY and sentencing him to imprisonment for an indeterminate term of from 6 months and 1 day to 6 years, with costs. ISSUE: W/N a judicial declaration that a subsequent marriage is null and void is necessary for the purposes of re-marriage. RULING: No. Defendant-Appellant was ACQUITTED. Sec 29 of the Marriage Law provides, Illegal marriages. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (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 so contracted being valid in either case until declared null and void by a competent court. 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 annulable marriages. There is here no pretence that appellant's second marriage with Olga Lema was contracted in the belief that the first spouse, Jovita de Asis, has been absent for seven consecutive years or generally considered as dead, so as to render said marriage valid until declared null and void by a competent court. SEPARATE OPINION: REYES, J., dissenting: It is not for the spouses to judge whether that marriage was void or not. That judgment is reserved to the courts.

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PEOPLE v. ARAGON Nature: Criminal Case For Bigamy Ponente: Labrador Date: February 28, 1957 DOCTRINE: A man is not liable for the crime of bigamy if he contracts a subsequent marriage and the preceding marriage is void ab initio. FACTS: Relevant Provision of Law: Article 349 of the RPC
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

RULING: No. The Court stated that they are bound by the principle that penal laws should be strictly construed in favor of the accused. Because there is no law that requires a judicial declaration of nullity of void marriages, the Court is bound to adhere to the strict interpretation that a declaration is not needed. Because the marriage of accused Aragon and Faicol happened during the time that his first wife Gorrea was still alive, the second marriage is void without need of judicial declaration. Therefore, when accused married a third time after the death of his first wife, it was not bigamous because the second marriage was void ab initio. DISSENTING OPINION: Reyes Basically states that even though there is nothing to dissolve, it is not for the spouses to judge whether a marriage is void or not because that is the function of the Court. It also goes on to state that until by competent authority in a final judgment the marriage is set aside, the offense to the vows taken and the attack on the family exists. TOLENTINO v. PARAS Nature: Petition for Review on Certiorari of the dismissal of the Lower Court on Petitioners action for Correction of Entry in the Civil Registr ar and Declaration as the Lawful Surviving Spouse Ponente: Melencio-Herrera Date: May 30, 1983 DOCTRINE: The admission to a charge of bigamy constitutes sufficient proof to show that a subsequent marriage is void, and is sufficient basis for the correction of an entry in a special proceeding. FACTS: Relevant Provision of Law: Art. 35. The following marriages shall be void from the beginning: (4) Those bigamous or polygamous marriages not failing under Article 41 Amado Tolentino was first married Serafina Tolentino on July 31, 1942. He subsequently married Maria Clemente on November 1, 1948 while his marriage with Serafina was still subsisting. As such, Serafina filed a criminal case for Bigamy against Amado, to which he pleaded guilty. After he served his prison sentence, he continued to live with Maria until his death on July 25, 1974; his death certificate stated that Maria was his surviving spouse. Serafina instituted a special proceeding for the Correction of Entry to indicate that she is the surviving spouse and not Maria, but the CFI dismissed this for lack of the proper requisites under the law and indicated the need for a more detailed proceeding. Serafina then filed a case against Maria and the
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On September 28, 1925 the accused married Maria Gorrea in the Philippine Independent Church in Cebu using the name Proceso Rosima. While his marriage with Gorreo was still subsisting, he contracted a canonical marriage with Maria Faicol on August 27, 1934 in Santa Teresita Church in Iloilo City, this time using the name Proceso Aragaon. Accused was then a travelling salesman and he commuted between Iloilo where he maintained Faicol and Cebu where he maintained Gorrea. Gorrea died in Cebu on August 5, 1959 and accused then brought Faicol to Cebu in 1940. Faicol had to go back to Iloilo to get treatment for her eyes because of the physical maltreatment the accused had done to her. During her absence, accused Aragon contracted a third marriage, this time with Jesusa C. Maglalang on October 3, 1953 in Sibonga, Cebu. Because of this marriage, accused is charged of bigamy at the instance of Faicol for contracting his third marriage with Maglalang while his marriage with Faicol was allegedly subsisting. The CFI of Cebu held accused guilty stating that although there is no provision in law authorizing an action for judicial declaration of nullity of marriage of an already void marriage (accuseds marriage to Faicol is undisputed to be void), the accused could still not legally marry Maglalang without the dissolution of his marriage to Faicol either by death or judicial declaration of nullity. Accused appealed relying on the case of People vs. Mendoza where it was held that a subsequent marriage during the lifetime of his first spouse is illegal and void from its performance and no judicial decree is necessary to establish its invalidity. ISSUE: Is accused Aragon guilty of Bigamy?

Local Civil Registrar for her declaration as the lawful surviving spouse, and the correction of the death certificate of Amado; Maria moved to dismiss. The lower court dismissed the case holding that the correction of the entry was improper since the issue involved is of a marital relationship, that the court did not acquire jurisdiction for failure of publication, and that the action still lacked the proper requisites under the law. ISSUES (1) Whether or not the remedy of seeking for a judicial declaration that Serafina is the lawful surviving spouse is proper RULING: Yes. The Court ruled that the action that she instituted is adversarial in character, and she has correctly made Maria, the party who would be most affected, as the party defendant, and she has actually appeared to contest the petition and defended her interests. Furthermore, she has also made the Local Civil Registrar as a party defendant. The Court dispensed with the requirement of publication stating that all the parties were already present. In any case, it was the Court that was called upon to order the publication, which it did not. (2) Whether or not the admission of Amado to the charge of bigamy constitutes sufficient proof regarding his marital status to Serafina RULING: Yes. The Court ruled that there is no better proof of marriage than the admission by the accused of the existence of the marriage. As such, the marriage contracted with Maria, being made during the lifetime of the first spouse, is null and void from the beginning and has no force and effect. No judicial decree is necessary to establish the invalidity of a void marriage, so it can be safely concluded, without need for further proof nor to remand for the more proceedings, that Maria is not the surviving spouse of Amado. WIEGEL v. SEMPIO-DIY Nature: Action for declaration of nullity of marriage Ponente: J. Paras Date: 19 August 1986 FACTS: Relevant Provision of Law: Articles 80 and 85 of the Old Civil Code Karl Heinz Wiegel (respondent) asked for the declaration of Nullity of his marriage (celebrated in July 1978 at the Holy Catholic Apostolic

Christian Church Branch in Makati, Metro Manila) with Lilia Oliva Wiegel (petitioner) because of Lilia's previous existing marriage to Eduardo A. Maxion. The marriage was performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while admitting the existence of said prior subsisting marriage claimed that said marriage was null and void, she and the first husband Eduardo A. Maxion having been allegedly forced to enter said marital union. During the pre-trial, Lilia was denied the opportunity to present that her first marriage was indeed void, because the existence of force exerted on both parties of the first marriage had already been agreed upon. Lilia thus filed a petition for certiorari assailing the said Order. ISSUE: What is the status of Lilias first marriage? How will the status of her first marriage affect her marriage to Karl Wiegel? RULING: The first marriage of Lilia was merely voidable and therefore valid until annulled. Article 85 of the Old Civil Code provides that if there be force committed against both parties, such force renders the marriage voidable only, and not void. Since no annulment has yet been made, it is clear that when she married Karl Wiegel, she was still validly married to her first husband; consequently, her marriage to Karl Wiegel is VOID (Art. 80, Civil Code). There is also no need to present evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs, according to the Court, a judicial declaration of such fact; and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel. Petition DISMISSED and respondent Judges Orders are AFFIRMED. DONATO v. LUNA (c/o Henry) TERRE v. TERRE Nature: Administrative case; disbarment Ponente: Per Curiam Date: July 3, 1992 DOCTRINE: For purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.
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FACTS: Dorothy Terre charged Jordan Terre, a member of the Philippine Bar with "grossly immoral conduct," consisting of contracting a second marriage and living with another woman other than complainant, while his prior marriage with complainant remained subsisting. According to her, they met during high school while she was then married to Merlito Bercenilla. Respondent was aware of her marital status. During college, he courted her and explained to her that their marriage was void ab initio since she and her first husband were first cousins. In their marriage license, respondent wrote "single" as her status explaining that since her marriage was void ab initio, there was no need to go to court to declare it as such. They bore a son whom Jordan abandoned, leaving Dorothy without means to pay for the medical bills during the pregnancy. Thereafter, respondent disappeared and Dorothy later found out that Jordan married a certain Vilma Malicdem. She then filed a case for abandonment of minor and bigamy. Jordan avers that he married Dorothy upon her representation that she was single and believing in good faith that his marriage to Dorothy was null and void ab initio, he contracted marriage with Helina Malicdem. Issue 1: WON Jordans second marriage with Malicdem was valid. NO. When the second marriage was entered into, respondent's prior marriage with Dorothy was subsisting, no judicial action having been initiated or any judicial declaration obtained as to the nullity of such prior marriage of respondent with complainant. As to respondents defense of good faith that his prior marriage with Dorothy Terre void and that no action for a judicial declaration of nullity was necessary. SC held that this is a spurious defense. Respondent has not rebutted facts which show his bad faith and that pretended defense is the same argument by which he had inveigled complainant into believing that her prior marriage to Merlito A. Bercenilla being incestuous and void ab initio(Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of this Court which holds that for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Even if we were to assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the same result will follow. For if we are to hold Jordan Terre to his own argument, his first marriage to complainant Dorothy Terre

must be deemed valid, with the result that his second marriage to Helina Malicdem must be regarded as bigamous and criminal in character. Issue 2: WON respondent should be disbarred. YES. Moral character of Jordan deeply flawed. The conduct of respondent Jordan Terre in inveigling complainant Dorothy Terre to contract a second marriage with him; in abandoning complainant Dorothy Terre after she had cared for him and supported him through law school, leaving her without means for the safe delivery of his own child; in contracting a second marriage with Helina Malicdem while his first marriage with complainant Dorothy Terre was subsisting, constituted "grossly immoral conduct", affording more than sufficient basis for disbarment of respondent Jordan Terre. 4. Subsequent marriage upon reappearance of absent spouse FC Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) FC Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) FC Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

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(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) FC Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) NCC Article 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) NCC Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) FC Art. 55. A petition for legal separation may be filed on any of the following grounds: (9) Attempt by the respondent against the life of the petitioner; or FC Art. 101. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose. The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations. A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. (178a)

CASES
JONES v. HORTIGUELA Nature: Appeal taken from the order issued by CFI of Cebu on March 14, 1935 , in the intestate proceedings of the deceased Marciana Escao denying (1) the motion to appoint a new administrator and (2) to set aside the order of May 9, 1932, declaring the heirs of said deceased; (3) holding it unwarranted to declare that the properties of the intestate estate are paraphernal properties of said deceased, but reserving to the parties the right to discuss which of said properties are paraphernal and which are conjugal; (4)setting aside the CFI orders granting to the administrator fees of P10,000 and approving the project of portion and the final account; and (5) ordering the presentation of another project of partition and final account. Ponente: Concepcion, J. Date: March 6, 1937
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DOCTRINE: For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage. FACTS: As Marciana Escao had died intestate, her widower Felix Hortiguela was appointed judicial administrator of her entire estate. In an order issued on May 9, 1932, Angelita Jones, her daughter by her first marriage, and Felix Hortiguela, her widower by her second marriage, were declared her only heirs. In a motion filed with the conformity of the guardian of the heiress Angelita Jones, Felix Hortiguela, as administrator, prayed that his fees, as such, be fixed at P10,000 which was granted by the court in its order of January 10, 1933. The administrator later presented an inventory of the properties left by said deceased Marciana Escao, a final account of his administration, and a project of partition of the intestate estate wherein he adjudicated to himself a part of the estate in payment of his share of the conjugal properties and his usufructuary right, and the remaining part to Angelita Jones (then a minor and represented by her guardian Paz Escao de Corominas). The project of partition and final account were approved in an order of June 26, 1933, and the properties were turned over to the respective grantees by virtue thereof. On May 3, 1934, the heiress Angelita Jones, then married to Ernesto Lardizabal, filed a motion alleging (1) that she was the only heir of her mother, the deceased Marciana Escao; (2) that there never was a valid marriage between her mother and Felix Hortiguela or that had such marriage been celebrated, it was null and void; (3) and even granting that it were valid, Felix Hortiguela was not entitled to a share in usufruct of one-third of the inheritance; (4) that the petitioner was a minor and that during the hearing of the intestate proceedings she had not been assisted by counsel but was represent by the same attorney of Felix Hortiguela; (5) that during said proceedings there had been committed many errors and inaccuracies which impaired her rights and that the fees of P10,000 charged by the administrator were highly unreasonable and unconscionable.

She prayed: (a) for the reopening of the proceedings; (b) that her husband appointed special administrator without bond; (c) that her mother's alleged marriage to Felix Hortiguela be declared null and void; ( d) that the partition of the properties made by administrator or Hortiguela be declared null and void that petitioner be declared the only universal heir of her deceased mother; and (e) that in case there was a valid marriage between Felix Hortiguela and Marciana Escao, Hortiguela be declared not entitled to the widower's usufruct; the errors in the administrator's account be corrected; the latter be granted a remuneration of only P4 a day, and new partition of the properties be made. After Hortiguela's answer had been filed and the evidence for both parties received, the court issued an order (discussed in the nature of proceedings) . Both parties appealed. ISSUE: W/N Felix Hortiguela's alleged marriage to Marciana Escao was celebrated considering that there was an order declaring Jones (Marcianas previous husband) as an absentee. Corollarily, W/N Hortiluega is entitled to inherit from Escao. RULING: YES and YES. Hortiluegas marriage to Marciana Escao was valid. Thus, the former is entitled to inherit from the latter. It is a fact that in December, 1914, Marciana Escao married Arthur W. Jones in the suburban catholic church of San Nicolas, Province of Cebu. On January 10, 1918, Jones secured a passport to go abroad and thereafter nothing was ever heard of him. In October, 1919, proceedings were institute in CFI by Marciana Escao, to have her husband judicially declared an absentee. On the 25th of said month, the court issued an order declaring Arthur W. Jones an absentee from the Philippine Islands pursuant to the provisions of article 186 of the Civil Code, with the proviso that said judicial declaration of absence would not take effect until six months after its publication in the official newspapers. Said order directed the publication thereof in the Official Gazette and in the newspaper "El Ideal". Pursuant thereto, said order was published in the Official Gazette during the month of December, 1919, and January, February, March, April, May and June, 1920. On April 23, 1921, the court issued another order for the taking effect of the declaration of absence, publication thereof having been made in the Official Gazette and in "El Ideal." On May 6, 1927, Felix Hortiguela and Marciana
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Escao were married before the justice of the peace in Leyte, and they signed the certificate of marriage. Angelita Jones contends that the declaration of absence must be understood to have been made not in the order of October 25, 1919, but in that of April 23, 1921, and that from the latter date to May 6, 1927, the date of the celebration of the marriage, only 6 years and 14 days elapsed; and in accordance with section III, paragraph 2, of General Orders, No. 68, the marriage so contracted by Felix Hortiguela and Marciana Escao is null and void. SC found this argument to be untenable. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believe at the time of the celebration of the marriage (section III, paragraph 2, General orders, No. 68). THUS, the absence of Marciana Escao's former husband should be counted from January 10, 1918, the date on which the last news concerning Arthur W. Jones was received, and from said date to May 6, 1927, more than nine years elapsed. Said marriage is, therefore, valid and lawful. For some unknown reason not attributable to the fault or negligence of Felix Hortiguela or Marciana Escao, the marriage contracted does not appear recorded in the marriage register of the municipality of Malitbog. Angelita Jones argued that the lower court erred in declaring that failure to record said marriage does not affect the efficacy and validity thereof. Section VIII of General Orders, No. 68, as amended: The person solemnizing the marriage must transmit the marriage certificate to the municipal secretary, and failure to transmit such certificate shall be fined not less than twenty-five and not more than fifty dollars; but does not provide that failure to transmit such certificate to the municipal secretary annuls the marriage. In Madridejo vs. De Leon:
"The mere fact that the parish priest who married the plaintiff's natural father and mother, while the latter was in articulo mortis failed to send a copy of the marriage

certificate to the municipal secretary, does not invalidate said marriage, since it does not appear that in the celebration thereof all requisites for its validity were not present, the forwarding of a copy of the marriage certificate not being one said requisites."

In U. S. vs. De Vera:
"Certificate issued pursuant the provisions of section 20 of the Municipal Code by municipal secretaries, marriages recorded in their respective registers, are not the only ones that can attest and prove such facts to such an extent that other proofs established by law may not be presented or admitted at trial, when through the omission or fault either of the municipal secretary himself or of the person who solemnized the marriage, it was not duly entered or recorded in the municipal register."

Furthermore, Marciana Escao believed Arthur W. Jones to be dead when she contracted her second marriage. Her daughter Angelita Jones herself was of the same belief, since she lived with her mother after the latter had married Hortiguela, treated Hortiguela as her true stepfather, and lived and traveled with him together with her mother. She certainly would not have behaved so if she had not believed her father to be dead. Also, according to section 334, No. 24, of the Code of Civil Procedure, a person not heard from in seven years is presumed to be dead. Inasmuch as Felix Hortiguela was lawfully married to Marciana Escao and was divorced from her at the time of her death there is no doubt that he is entitled to inherit in usufruct, not only in testate but also in intestate succession, as in the present case (6 and 7 Manresa, pages 497-499 and 134141, respectively). Therefore, there is no reason to annul the order of May 9, 1932, declaring that the heirs of the deceased were her widower and her daughter Angelita Jones. Neither is there any reason to annul the order of June 26, 1933, approving the partition of the properties of the intestate estate. NOTES: Ruling on administrative fees and jurisdiction of the court have been omitted in this digest. IN RE SZATROW (c/o Christian) 5. Bad Faith or both spouses under FC Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)
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6. Psychological Incapacity FC Art. 36. A marriage contracted by any party who, at the time of the 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. (As amended by Executive Order 227) FC Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a) FC Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) FC Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties. (111a) FC Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) FC Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) FC Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.

CASES
REPUBLIC v. CA and MOLINA Petition to declare marriage void Panganiban Feb. 13, 1997 DOCTRINE: Mere opposing and conflicting personalities will not constitute psychological incapacity. Court gave guidelines outlined below for applying Art. 36. FACTS: Article 36 FC August 16, 1990: Respondent Roridel O. Molina filed a verified petition for declaration of nullity of her marriage to Reynaldo Molina. According to Roridel: They were married on April 14, 1985 at the San Agustin Church 4 in Manila, that a son, Andre O. Molina was born a year after this marriage. Reynaldo showed signs of "immaturity and irresponsibility" as a husband and a father since he preferred to spend more time with his friends on whom he squandered his money; he 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; in February 1986, he was relieved of his job in Manila, and since then she 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; that in March 1987, Roridel resigned from her job in Manila and went to live with her parents in Baguio City; that a few weeks later, Reynaldo left Roridel and their child, and had since then abandoned them; that Reynaldo had thus shown that he was psychologically incapable of complying with essential marital obligations and was a highly immature and habitually quarrel some individual who thought of himself as a king to be served; and that it would be to the couple's best interest to have their marriage declared null and void in order to free them from what appeared to be an incompatible marriage from the start. According to Reynaldo: he and Roridel could no longer live together as husband and wife, but contended that their quarrels were due to (1) Roridel's strange behavior of insisting on maintaining her group of friends even after their marriage; (2) Roridel's refusal to perform some of her marital duties such as cooking meals; and (3) Roridel's failure to run the household and handle their finances. Additional facts in pre-trial: 1. Parties are separated-in-fact for more than three years, petitioner is not asking support for her and her child, respondent is not asking for damages, common child of the parties is in the custody of the petitioner wife. TC: Marriage void. CA: Denied appeal, affirmed in toto RTC
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SolGen insists CA tended "to establish in effect the most liberal divorce procedure in the world which is anathema to our culture." It argues that "opposing and conflicting personalities" is not equivalent to psychological incapacity. CA based decision on the opposing and conflicting personalities" found by the TC and added that "the Civil Code Revision Committee intended to liberalize the application of our civil laws on personal and family rights ISSUE: WON "opposing and conflicting personalities" is equivalent to psychological incapacity. RULING: NO, certain guidelines must be followed. SC made reference to Leouel Santos vs. CA which said that "the psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability." Here what appears is a "difficulty," if not outright "refusal" or "neglect" in the performance of some marital obligations. Mere showing of "irreconciliable differences" and "conflicting personalities" in 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 (nor physical) illness. Evidence of respondent merely showed she and her husband could nor get along with each other. Expert testimony of Dr. Sison showed no incurable psychiatric disorder but only incompatibility, not psychological incapacity. Dr. Sison testified there is no hope for the marriage.In the case of Reynaldo, there is no showing that his alleged personality traits were constitutive of psychological incapacity existing at the time of marriage celebration. There was mere failure of expectation on part of wife which showed love's temporary blindness to the faults and blemishes of the beloved. The court with help of 2 amici curiae, Oscar Cruz and Justice Ricardo C. Puno, came up with guidelines for Art. 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, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. (3) The incapacity must be proven to be existing at "the time of the celebration" of the marriage. The evidence must show that the illness was existing when the parties exchanged their "I do's." The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage (5) Such illness must be grave

enough to bring about the disability of the party to assume the essential obligations of marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the FC as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law (incapable of contracting marriage: unable to assume the essential obligations of marriage due to causes of psychological nature.) (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. No decision shall he handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly staring therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. SEPARATE OPINION: Padilla concurred, Romero separate, saying psychological incapacity is, in a sense, insanity of a lesser degree. Gave history on the provision. Vitug concurred. CHOA v. CHOA Nature: Complaint for Annulment of Marriage based on Article 36 of the Family Code Ponente: Panganiban, J. Date: November 26, 2002 DOCTRINE: Psychological incapacity must be proven by sufficient evidence, otherwise,a demurrer to evidence may be granted by the court. FACTS: Relevant Provision of Law: Art. 36, Family Code. A marriage contracted by any party who, at the time of the 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. (As amended by Executive Order 227) Petitioner Leni Choa and respondent Alfonso Choa are married with two children. Respondent filed before the RTC a Complaint for the declaration of
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nullity of his marriage to petitioner based on her alleged psychological incapacity. Instead of offering any objection to the evidence of the respondent, petitioner filed a Motion to Dismiss (Demurrer to Evidence). RTC denied petitioners Demurrer to Evidence. ISSUE: WON the evidence presented by the respondent as to the alleged psychological incapacity of the petitioner is sufficient to justify the denial of the her demurrer to evidence RULING: NO, the evidence against respondent petitioner is grossly insufficient to support any finding of psychological incapacity that would warrant a declaration of nullity of the parties marriage. First. The documents presented by respondent during the trial do not in any way show the alleged psychological incapacity of his wife. It is the height of absurdity and inequity to condemn her as psychologically incapacitated to fulfill her marital obligations, simply because she filed cases against him. The evidence presented, even if taken as true, merely establishes the prosecution of the cases against him. Second. Neither is the testimony of respondent sufficient to prove petitioners alleged psychological incapacity. Even if taken as true, the testimony of respondent basically complains about three aspects of petitioners personality; namely, her alleged (1) lack of attention to their children, (2) immaturity and (3) lack of an intention of procreative sexuality. None of these three, singly or collectively, constitutes psychological incapacity. The evidence adduced by respondent merely shows that he and his wife could not get along with each other. There was absolutely no showing of the gravity or juridical antecedence or incurability of the problems besetting their marital union. Third. Most telling is the insufficiency, if not incompetency, of the supposed expert testimony presented by respondent. His witness, Dr. Gauzon, utterly failed to identify and prove the root cause of the alleged psychological incapacity. Specifically, his testimony did not show that the incapacity, if true, was medically or clinically permanent or incurable. Neither did he testify that it was grave enough to bring about the disability of the party to assume the essential obligations of marriage. BARCELONA v. CA Nature: Petition for nullity by Art. 36 Ponente: Carpio Date: 24 September 2003 DOCTRINE: Since the effectivity of the new Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, it

is clear that in Art. 36 (psychological incapacity) cases, expert opinion need not be alleged and accordingly, there is no need to allege root causes of the incapacity. FACTS: Relevant Provision of Law: Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Private respondent Tadeo Bengzon filed a petition for nullity based on Art. 36 against his wife petitioner Diana Barcelona. Tadeo withdrew his initial petition and then refiled again on the same ground. In response to this second petition, Diana filed a MTD based on 1) failure to state a COA and 2) forum shopping. She alleged that Tadeo did not comply with guidelines set forth in Santos v. CA and Republic v. CA and Molina, as the petition 1) did not allege the root cause of the psychological incapacity; 2) did not state that the incapacity existed at the time of celebration of their marriage; 3) did not say that it was incurable; 4) did not allege the gravity thereof; and 5) did not enumerate her failed marital obligations. The RTC dismissed Dianas MTD. From this Diana filed for certiorari, prohibition and mandamus with the CA. The CA affirmed the RTC. ISSUES: (1) W/N Tadeo failed to state a COA RULING: Tadeo did not fail to state a COA. After the Santos and Molina rulings, the SC adopted the new Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (the new Rules). These rules are to be retroactively applied. These new Rules provide that expert opinion need not be alleged. Only experts can testify on matters re: root cause of the psychological incapacity. Now that the Rules do not require experts, then there is no need to allege root cause at all. Tadeos second petition has a COA for it states the right of Tadeo, the correlative obligation of Diana, and the act/omission of Diana in violation of his legal right. And in filing a MTD, Diana hypothetically admitted all the factual averments in the complaint. (2) W/N there was forum shopping RULING: No forum shopping existed because the first petition was dismissed without prejudice at the insistence of Tadeo to keep the peace between him and his children.
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REPUBLIC v. QUINTERO HAMANO (c/o Jenin) MORIGO v. PEOPLE Nature: Petition for review on certiorari Ponente: QUISUMBING, J. Date: February 06, 2004 DOCTRINE: The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. FACTS: [1st MARRIAGE] Appellant Lucio Morigo and Lucia Barrete got married on August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol. On September 8, 1990, Lucia reported back to her work in Canada leaving appellant Lucio behind. [DIVORCE DECREE] On August 19, 1991, Lucia filed with the Ontario Court (General Division) a petition for divorce against appellant which was granted by the court on January 17, 1992 and to take effect on February 17, 1992. [2nd Marriage] On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago at the Virgen sa Barangay Parish, Tagbilaran City, Bohol. On September 21, 1993, accused filed a complaint for judicial declaration of nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case No. 6020. The complaint seek ( sic) among others, the declaration of nullity of accuseds marriage with Lucia, on the ground that no marriage ceremony actually took place. [INFORMATION] On October 19, 1993, appellant was charged with Bigamy in an Information filed by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of Bohol. The petitioner moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his marriage with Lucia posed a prejudicial question in the bigamy case. Motion was granted, but subsequently denied. RTC: GUILTY of bigamy RE: 1st marriage is void. want of a valid marriage ceremony is not a defense in a charge of bigamy. The parties to a marriage should not be allowed to assume that their marriage is void even if such be the

fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again. RE: Divorce Decree. The court of a country in which neither of the spouses is domiciled and in which one or both spouses may resort merely for the purpose of obtaining a divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a divorce granted by said court is not entitled to recognition anywhere RE: Lucios good faith. Everyone is presumed to know the law, and the fact that one does not know that his act constitutes a violation of the law does not exempt him from the consequences thereof.

Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring the marriage between Lucio and Lucia void ab initio since no marriage ceremony actually took place. No actual marriage ceremony performed between Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of the marriage contract by the two, without the presence of a solemnizing officer. CA: RTC decision affirmed Petitioner contends, that he should not be faulted for relying in good faith upon the divorce decree of the Ontario court. He highlights the fact that he contracted the second marriage openly and publicly, which a person intent upon bigamy would not be doing. that his lack of criminal intent is material to a conviction or acquittal in the instant case. The crime of bigamy, just like other felonies punished under the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent are allowed as a complete defense. OSG contends, under Article 40 of the Family Code, a judicial declaration of nullity is a must before a party may re-marry. Whether or not the petitioner was aware of said Article 40 is of no account as everyone is presumed to know the law. petitioners contention that he was in good faith because he relied on the divorce decree of the Ontario court is negated by his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia. ISSUE: W/N a judicial declaration of nullity is necessary for purposes of remarriage. RULING: NO. Petitioner is ACQUITTED.
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Topic: Void Marriages; Psychological Incapacity The elements of bigamy are: (1) the offender has been legally married; (2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead; (3) he contracts a subsequent marriage; and (4) the subsequent marriage would have been valid had it not been for the existence of the first. The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. The contract of marriage is null; it bears no legal effect. Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the time he contracted the marriage with Maria Jececha. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. CF. Mercado v. Tan A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be legally contracted. One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statutes as void It bears stressing though that in Mercado, the first marriage was actually solemnized not just once, but twice: first before a judge where a marriage certificate was duly issued and then again six months later before a priest in religious rites. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio. In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity. TENEBRO V. CA 423 SCRA 272 Date: 18 February 2004 Ponente: Ynares-Santiago DOCTRINE: The subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity. FACTS: 3 Marriages, 1 Husband: W1 Hilda Villareyes (1986) W2 - Leticia Ancajas (1990) W3 Nilda Villegas (1993) On 10 April 1990, Veronico Tenebro married Ancajas before the judge of MCTC Lapu-Lapu City. They lived together until the latter part of 1991, when Tenebro informed Ancajas that he had been previously married to Villareyes on 10 Nov 1986. He showed her a photocopy of the marriage certificate, and thereafter left their conjugal dwelling. On 25 Jan 1993, Tenebro contracted another marriage, this time with Villegas, before the judge in RTC Cebu City. When Ancajas learned of this 3rd marriage, she verified Tenebros marriage with Villareyes. The latter confirmed through a letter. Ancajas filed a complaint for bigamy against Tenebros. Tenebros Defense: Admitted that he cohabited with Villareyes but denied that they were validly married. He claimed that there was no marriage ceremony that took place. He merely signed a marriage contract merely to enable her to get the allotment from his office in connection with his work as a seaman. The Civil Register in Manila has no record of his marriage to Villareyes. RTC CA - Tenebros guilty of bigamy - Affirmed.

Meanwhile, the marriage between Tenebros and Ancajas (marriage #2) was declared null and void ab initio on the ground of psychological incapacity. ISSUE:
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W/N the absolute nullity of the second marriage on the ground of psychological incapacity, prior to its judicial declaration as being void, constitute a valid defense in a criminal action for bigamy. HELD: NO. The subsequent judicial declaration of nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage insofar as the Philippines penal laws are concerned. As such, an individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding the subsequent declaration that the second marriage is void ab initio on the ground of psychological incapacity. RATIO: Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the RPC criminalizes "any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings". A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage. Thus, as soon as the second marriage to Ancajas was celebrated on April 10, 1990, during the subsistence of the valid first marriage, the crime of bigamy had already been consummated. To our mind, there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned. The States penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and punish an individuals deliberate disregard of the permanent character of the special bond between spouses, which petitioner has undoubtedly done. Moreover, the declaration of the nullity of the second marriage on the ground of psychological incapacity is not an indicator that petitioners marriage to Ancajas lacks the essential requisites for validity. Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the

celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. 7. Incestuous Marriages FC Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) NCC Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915) NCC Article 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a) NCC Article 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. (917) NCC Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.

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In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a) NCC Article 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) 8. Marriages against public policy FC Art. 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. (82)

NCC Article 80. The following marriages shall be void from the beginning: (6) Those where one or both contracting parties have been found guilty of the killing of the spouse of either of them; (7) Those between stepbrothers and stepsisters and other marriages specified in article 82. (n) NCC Article 82. The following marriages shall also be void from the beginning: (1) Between stepfathers and stepdaughters, and stepmothers and stepsons; (2) Between the adopting father or mother and the adopted, between the latter and the surviving spouse of the former, and between the former and the surviving spouse of the latter; (3) Between the legitimate children of the adopter and the adopted. (28a)

NCC Article 963. Proximity of relationship is determined by the number of generations. Each generation forms a degree. (915) NCC Article 964. A series of degrees forms a line, which may be either direct or collateral. A direct line is that constituted by the series of degrees among ascendants and descendants. A collateral line is that constituted by the series of degrees among persons who are not ascendants and descendants, but who come from a common ancestor. (916a) NCC Article 965. The direct line is either descending or ascending. The former unites the head of the family with those who descend from him. The latter binds a person with those from whom he descends. (917) NCC Article 966. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor.
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In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great-grandparent. In the collateral line, ascent is made to the common ancestor and then descent is made to the person with whom the computation is to be made. Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth. (918a) NCC Article 967. Full blood relationship is that existing between persons who have the same father and the same mother. Half blood relationship is that existing between persons who have the same father, but not the same mother, or the same mother, but not the same father. (920a) 9. Non-compliance under FC Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. 10. Effect of nullity FC Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. FC Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the

parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) FC Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) FC Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. FC Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. FC Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n). FC Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. (n) Republic Act No. 6809 AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::
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Section 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as follows: "Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years." Section 2. Articles 235 and 237 of the same Code are hereby repealed. Section 3. Article 236 of the same Code is also hereby amended to read as follows: "Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. "Contracting marriage shall require parental consent until the age of twenty-one. "Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code." Section 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. Section 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general circulation. Approved: December 13, 1989 FC Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on coownership. In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this

Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household. Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a) FC Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit. If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article. The foregoing rules on forfeiture shall likewise apply even if both parties are in both faith. (144a)

CASE
YAPTINCHAY v. TORRES Nature: Petition for Certiorari Ponente: Sanchez Date: June 9, 1969 DOCTRINE: Before the rules on co-ownership may apply pursuant to Article 144 of the Civil Code, there must be a clear showing that during the cohabitation, that the person asserting co-ownership really contributed to the acquisition of the property involved. Until such is established, the interest
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cannot be considered a present right where an injunction may be issued to for protection of said right. FACTS: Relevant Provision of Law: Article 144 of the Civil Code
Article 144: When a man and a woman live together as husband and wife, but they are not married, or their marriage is void from the beginning, the property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by the rules on co-ownership.

for because her right sought to be protected is doubtful and still in dispute. They in turn asked for a writ of preliminary injunction to direct Teresita to cease and desist in disturbing Virginias possession of the house and to remove the guards, agents and employees installed by Teresita. Judge Guillermo issued the order which is the subject of this petition for Certiorari ruling that the property should be under the responsibility of Viriginia as special administratrix. He issued a writ of preliminary injunction requiring Teresita to surrender possession and to enjoin her from further disturbing Virginias possession. However, this order was amended the amendatory order clarifying that the defendants were also enjoined from selling, disposing or encumbering the property pending the termination of the case. ISSUE: Is Teresita entitled to the preliminary injunction she asked for in the Pasig Branch of the CFI of Rizal? RULING: No. Injunction is not to be granted for the purpose of taking property out of possession and control of a party and placing it in that of another whose title thereto has not been clearly established. In order to establish her right, Teresita tries explain first that she has contributed her own exclusive funds for the acquisition and construction of the property. She tries to establish that the property came to be through her and Isidros joint efforts and capital. However, she also states in other pleadings that she acquired thorugh her own personal funds and efforts the real properties including the Forbes property. To substantiate this she presented promissory notes in favor of Republic Bank the proceeds of which were allegedly used for the construction, completion and furnishing of the house, but none of these notes reveals that it was actually the case. Contrary to her assertions, the notes state that the proceeds were used for Fishpond Development, to augment working capital, for agricultural development and etc. The fact of her indebtedness to Republic Bank does not establish that the house was built with her own funds. Therefore, there was no grave abuse of discretion when Judge Torres issued the injunction in favor of the respondents. Moreover, the grant or denial of an injunction rests on the discretion of the court and the appellate court will not interfere except in clear case of abuse which is absent in this case. Lastly, Teresitas invocation of Article 144 of the Civil Code to establish that there exists a co-ownership must also fail because she has failed to clearly show that she contributed to the acquisition of the property involved during the cohabitation. Until such right to co-ownership is established, Teresitas interests may not be deemed a present right which can be protected by a writ of injunction because the existence of a clear positive right in her favor is
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Petitioner Teresita Yaptinchay asked that she be appointed first as special then also as regular administrator of the estate of Isidro Yaptinchay who died in Hong Kong on July 7, 1965. She alleged that Isidro had lived with her continuously, openly and publicly as husband and wife for 19 years. She stated that Isidro left property in the Philippines and in Hong Kong amounting to around 500,000php and that he left no will and that to her knowledge, Isidro left three daughters mainly Virginia, Mary and Asuncion. She also said that certain personal properties were being stolen from the residences and therefore an appointment of a special administrator was needed. The CFI of Rizal (Pasay) issued the order on July 17, 1965 appointing Teresita as special administratrix. Josefina Yaptinchay, the legitimate wife along with the other children of Isidro opposed the order on the grounds that Teresita was not an heir and therefore had no right to institute the proceedings and that since she admits to the cohabitation, she is not qualified as an administrator for want of integrity. The oppositors prayed that Viriginia, one of the daughters, be appointed as special administratrix while Josefina be appointed as regular administratrix. The CFI set aside its order appointing Teresita and set a hearing. After the hearing, Virginia was appointed as special administratrix. As special administratrix, Viriginia submitted an inventory of the assets of the estate of Isidro and included in this inventory is a bungalow residential House with swimming pool in North Forbes Park. On August 14, 1965, Teresita filed an action for replevin, liquidation of her partnership with Isidro and for preliminary injunction, this time in the Pasig Branch of the CFI of Rizal. Pending hearing on the issues, Judge Guillermo Torres issued a TRO against the private respondents enjoining them from disposing any of the properties listed and from interfering with Teresitas rights and possession of the house. The respondents resisted the action stating that the Pasay City Branch had exclusive jurisdiction over the settlement of the estate and that the action for replevin was meant to oust the said court of that jurisdiction. They also alleged that Teresita was not entitiled to the preliminary injunction prayed

absent. Injunction is not to protect contingent or future rights nor is it a remedy to enforce an abstract right. 11. Who can invoke nullity FC Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe. However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect. (As amended by Executive Order 227) (n) 12. Prescription FC Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe. However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect. (As amended by Executive Order 227) (n) FC Art. 36. A marriage contracted by any party who, at the time of the 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. (As amended by Executive Order 227) FC Art. 255. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. FC Art. 42. Paragraph 2. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) FC Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. (n)

13. Procedure in action for declaration of nullity A.M. No. 02-11-10-SC March 4, 2003

RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES RESOLUTION Acting on the letter of the Chairman of the Committee on Revision of the Rules of Court submitting for this Court's consideration and approval the Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the Court Resolved to APPROVE the same. The Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003 March 4, 2003 Davide, C.J. Bellosillo, Puno, Vitug Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio Morales, Callejo, Sr. and Azcuna Ynares-Santiago, on leave Corona, on official leave RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARIAGES AND ANNULMENT OF VOIDABLE MARRIAGES Section 1. Scope - This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of te Philippines. The Rules of Court shall apply suppletorily. Section 2. Petition for declaration of absolute nullity of void marriages. (a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) (b) Where to file. - The petition shal be filed in the Family Court.

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(c) Imprecriptibility ofaction or defense. - An Action or defense for the declaration of absolute nullity of void marriage shall not prescribe. (d) What to allege. - A petition under Article 36 of Family Code shall specially allege te complete facts showing the either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriages at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. Section 3. Petition for annulment of voidable marriages. (a) Who may file. - The following persons may file a petition for annulment of voidable marriage based on any of the grounds under article 45 of the Family Code and within the period herein indicated: (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabitated with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party , at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the other's insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during the a lucid interval or after regaining sanity, provided that the petitioner , after coming to reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud, provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife;

(4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapability continues and appears to be incurable, within five years after the celebration of marriage; and (6) Te injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Where to file. - The petition shall be filed in the Family Court. Section 4. Venue. - The Petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing. Or in the case of non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, the custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiringurgent action. (3) It must be verified and accompanied celebration of marriage. (b) Where to file.-The petition shall be filed in the Family Court. Section 4. Venue. - The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident
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respondent, where he may be found in the Philippines at the election of the petitioner. Section 5. Contents and form of petition. - (1) The petition shall allege the complete facts constituting the cause of action. (2) it shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action. (3) it must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by me petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) it shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. Section 6. Summons. - The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such places as the court may order In addition, a copy of the summons

shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. (2) The summons to be published shall be contained in an order of the court with the following data: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication. Section 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Section 8. Answer. - (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Section 9. Investigation report of public prosecutor. - (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the on the finding of collusion within ten days from receipt of a copy of a report The court shall set the report for hearing and If convinced that the parties are in collusion, it shall dismiss the petition. (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Section 10. Social worker. - The court may require a social worker to conduct a case study and submit the corresponding report at least three days before
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the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Section 11. Pre-trial. (1) Pre-trial mandatory. - A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties. (2) Notice of pre-trial. - (a) The notice of pre-trial shall contain: (1) the date of pre-trial conference; and (2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial. (b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pretrial shall be sent to respondent at his last known address. Section 12. Contents of pre-trial brief. - The pre-trial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues; (d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof;

(e) The number and names of the witnesses and their respective affidavits; and (f) Such other matters as the court may require. Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pre-trial under the succeeding paragraphs. Section 13. Effect of failure to appear at the pre-trial. - {a) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there Is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Section 14. Pre-trial conference. -At the pre-trial conference, the court: (a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other makers as may aid in the prompt disposition of the petition. Section 15. Pre-trial order. - {a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall Issue a pre-trial order which shall recite in detail the matters taken up In the conference, the action taken thereon, the amendments allowed on the pleadings, and except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties.
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(b) Should the action proceed to trial, the order shall contain a recital of the following; (1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule; (2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. (c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (d) The parlies shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice. (e) The parties shall have five days from receipt of the pre-trial order to propose corrections or modifications. Section 16. Prohibited compromise. - The court-shall not allow compromise on prohibited matters, such as the following: (a) The civil status of persons; (b) The validity of a marriage or of a legal separation; (c) Any ground for legal separation; (d) Future support; (e) The jurisdiction of courts; and

(f) Future legitime. Section 17. Trial. - (1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (2) The grounds for declaration of absolute nullity or annulment of marriage must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals. (4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Section 18. Memoranda. - The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Section 19. Decision. - (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Article 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.
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(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal Is filed by any of the parties the public prosecutor, or the Solicitor General. (4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule. The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and In the Civil Registry where the Family Court'granting the petition for declaration of absolute nullity or annulment of marriage is located. Section 20. Appeal. (1) Pre-condition. - No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. (2) Notice of appeal. - An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. Section 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive iegltimes. - Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Section 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage." (a) The court shall issue the Decree after; (1) Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and

in the Civil Registry of the place where the Family Court is located; (2) Registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located; and (3) The delivery of the children's presumptive legitimes in cash, property, or sound securities. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Section 23. Registration and publication of the decree; decree as best evidence. - (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report td the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. Section 24. Effect of death of a party; duty of the Family Court or Appellate Court. - (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.
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Section 25. Effectlvity. - This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003. (a) Requisite for valid remarriage FC Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n).

(1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. (1814a)

CASES Wiegel v. Sempio-Diy, supra. Terre v. Terre, supra.

(b) Support and custody pendente lite FC Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n) (c) Safeguards against collusion FC Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. (d) No concession of judgment FC Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. NCC Article 2035. No compromise upon the following questions shall be valid:

CASES
JOCSON v. ROBLES Nature: Action for annulment of marriage on the ground of bigamy Ponente: JBL Reyes Date: February 10, 1968 DOCTRINE: The Civil Code disallows a decree of annulment upon a stipulation of facts or upon a confession of judgment FACTS: Relevant Provision of Law: Family Code Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. New Civil Code Art. 2035. No compromise upon the following questions shall be valid: (2) The validity of a marriage or a legal separation; Ricardo had contracted a first marriage with Josefina Fausto. On May 27, 1958, he married Gloria Jocson (herein petitioner). When Josefina found out about the marriage to Gloria, she filed a criminal action for Bigamy against Ricardo. This, in turn, led Gloria to file for annulment of her marriage to Ricardo, and she also asked for moral and exemplary damages, attorneys fees and costs, alleging that Ricardo had been physically abusive towards her which ultimately resulted in her miscarriage.
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Ricardos answer alleged that he was compelled by force, thread and intimidation to contract the marriage with Maria by her parents, although they all knew that he was already married. He then filed a motion for summary judgment on the ground that no genuine issue of fact is involved, contending his allegations were supported by a joint affidavit made by Glorias father and brother. Gloria, on the other hand, submitted the case for judgment on the pleadings The CFI denied the motion for summary judgment ruling that before it could rule on the declaration of nullity, there needed to be sufficient proof establishing the existence of the first marriage. The Court also found indications of collusion between the parties to secure the nullification of the marriage. ISSUE: Whether or not a declaration of nullity of a marriage can be made on a summary judgment RULING: No, this is expressly prohibited by the New Civil Code (and now the Family Code as well) The Court ruled that the first paragraph of Articles 88 and 1011 of the Civil Code expressly prohibit the rendition of a decree of annulment of a marriage upon a stipulation of facts or a confession of judgment. The affidavits annexed to the petition for summary judgment practically amounted to the methods not countenanced by the Civil Code TOLENTINO v. VILLANUEVA (c/o Henry)

(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 ceased, such party thereafter freely cohabited with the 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; or (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a) 2. Grounds for annulment a. Absence of parental condent FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife; FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

F. Voidable Marriages
1. Void vs voidable marriages

FC Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

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Republic Act No. 6809

December 13, 1989

b. Insanity FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; c. Fraud FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; FC Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as follows: "Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years." Section 2. Articles 235 and 237 of the same Code are hereby repealed. Section 3. Article 236 of the same Code is also hereby amended to read as follows: "Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. "Contracting marriage shall require parental consent until the age of twenty-one. "Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code." Section 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. Section 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general circulation. Approved: December 13, 1989

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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. (86a) FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (3) For causes mentioned in number 3 of Articles 45, by the injured party, within five years after the discovery of the fraud; NCC Article 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. (1269) NCC Article 1339. Failure to disclose facts, when there is a duty to reveal them, as when the parties are bound by confidential relations, constitutes fraud. (n) NCC Article 1340. The usual exaggerations in trade, when the other party had an opportunity to know the facts, are not in themselves fraudulent. (n) NCC Article 1341. A mere expression of an opinion does not signify fraud, unless made by an expert and the other party has relied on the former's special knowledge. (n) NCC Article 1342. Misrepresentation by a third person does not vitiate consent, unless such misrepresentation has created substantial mistake and the same is mutual. (n) NCC Article 1343. Misrepresentation made in good faith is not fraudulent but may constitute error. (n) NCC Article 1344. In order that fraud may make a contract voidable, it should be serious and should not have been employed by both contracting parties.

DOCTRINE: Where there has been no misrepresentation or fraud, that is, when the husband at the time of the marriage knew that the wife was pregnant, the marriage cannot be annulled.
FACTS: Godofredo Buccat and Luida Mangonon de Buccat met in March 1938, became engaged in September, and got married in November 26. On Feb 23, 1939 (89 days after getting married) Luida, who was 9 months pregnant, gave birth to a son. After knowing this, Godofredo left Luida and never returned to married life with her. Godofredo filed for an annulment of their marriage on the grounds that when he agreed to married Luida, she assured him that she was a virgin. Lower court decided in favor of the defendant and found it untenable that petitioner did not notice that defendant was pregnant at the time of marriage because she was about 6 months pregnant then. Issue 1: WON annulment for Godofredo Buccats marriage can be granted on the ground that Luida concealed her pregnancy before the marriage? NO. Clear and authentic proof is needed in order to nullify a marriage, a sacred institution in which the State is interested and where society rests. In this case, the court did not find any proof that there was concealment of pregnancy constituting fraud as a ground for annulment. It was unlikely that Godofredo, a first-year law student, did not suspect anything about Luidas condition considering that she was in an advanced stage of pregnancy (highly developed physical manifestation, ie. enlarged stomach ) when they got married. It was impossible for a person whose intelligence cannot be questioned, being a first year law student, to not have noticed the severe stage and advanced stage that the person he was marrying was in at that time. His claim of developed abdomens being normal is not something the court can accept because it was not just a normal developed abdomen but one in an advanced and severe stage of pregnancy. The court cannot accept that there is fraud. Note: Originally in Spanish. This digest is based on translation and other digests.

CASES
BUCCAT v. MANGONON DE BUCCAT Nature: Annulment Ponente: Horrilleno Date: April 25, 1941

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AQUINO v. DELIZO Nature: Action for annulment of marriage, filed by Fernando Aquino Ponente: J. Gutierrez David Date: 27 July 1960 FACTS: Relevant Provision of Law: Article 45, NCC. Fernando Aquino filed a complaint against his wife, Conchita Delizo. He alleged that Conchita, on the date of their marriage (27 December 1954) concealed from him (Fernando) the fact that she was pregnant by another man. Sometime in April, 1955, or about four months after their marriage, Conchita gave birth to a child. In her answer, Conchita claimed that the child was conceived out of lawful wedlock between her and Fernando. During trial, only the petitioner Fernando testified. The respondent, Conchita, neither appeared nor presented any evidence despite the reservation made by her counsel that he would present evidence on a later date. TC dismissed the complaint noted that no birth certificate was presented to show that the child was born within 180 days after the marriage between the parties held that concealment of pregnancy as alleged by the plaintiff does not constitute such fraud as would annul a marriage. Fernando, through a verified "petition to reopen for reception of additional evidence", tried to present the certificates of birth and delivery of the child born of the defendant on April 26, 1955, which documents, according to him, he had failed to secure earlier and produce before the trial court thru excusable negligence. The petition, however, was denied. CA affirmed the dismissal of the complaint because it was not impossible for plaintiff and defendant to have had sexual intercourse during their engagement so that the child could be their own, and found unbelievable plaintiff's claim that he did not notice or even suspect that defendant was pregnant when he married her there has been excusable neglect in plaintiff's inability to present the proof of the child's birth, through her birth certificate, and for that reason the court a quo erred in denying the motion for reception of additional evidence. Fernando thus filed a motion praying that the decision be reconsidered, or, if such reconsideration be denied, that the case be remanded to the lower court for new trial. In support of the motion, plaintiff attached as annexes thereof the following documents:

(1) Affidavit of Cesar Aquino (his brother, with whom Conchita was living at the time Fernando met, courted and married her; Cesar and Conchita have begotten two more children, aside from her first born, in common-law relationship) admitting that he is the father of defendant's first born, Catherine Bess Aquino, and that he and defendant hid her pregnancy from plaintiff at the time of plaintiff's marriage to defendant; (2) Affidavit of defendant, Conchita Delizo, admitting her pregnancy by Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her marriage to plaintiff and her having hidden this fact from plaintiff before and up to the time of their marriage; (3) Affidavit of Albert Powell, stating that he knew Cesar Aquino and defendant lived together as husband and wife before December 27, 1954, the date of plaintiff's marriage to defendant; (4-6) Birth Certificates of Conchitas children with Cesar, Catherine Bess Aquino (born April 26, 1955); Carolle Ann Aquino, and Chris Charibel Aquino. (7) Pictures of defendant showing her natural plumpness as early as 1952 to as late as November, 1954; however, the November, 1954 photo itself does not show defendant's pregnancy which must have been almost four months old at the time the picture was taken. Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the motion for reconsideration, and deferred action on the prayer for new trial until after the case is disposed of. As both the defendant and the fiscal failed to file an answer, and stating that it "does not believe the veracity of the contents of the motion and its annexes", the Court of Appeals, denied the motion. ISSUE: Would the wifes concealment of the fact that at the time the marriage was celebrated, she was pregnant by a man other than her husband, constitute fraud, and be a ground for annulment of the marriage? RULING: Yes. Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which was also an action for the annulment of marriage on the
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ground of fraud, plaintiff's claim that he did not even suspect the pregnancy of the defendant was held to be unbelievable, it having been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar. In here, Conchita was alleged to be only more than four months pregnant at the time of her marriage to plaintiff. At that stage, the Court said, It is not prepared to say that her pregnancy was readily apparent, especially since she was "naturally plump" or fat as alleged by Fernando. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by Fernando, Conchita is "naturally plump", he could hardly be expected to know, merely by looking, whether or not she was pregnant at the time of their marriage more so because she must have attempted to conceal the true state of affairs. Even physicians and surgeons, with the aid of the woman herself who shows and gives her subjective and objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10). The appellate court also said that it was not impossible for plaintiff and defendant to have had sexual intercourse before they got married and therefore the child could be their own. This statement, however, is purely conjectural and finds no support or justification in the record. The decision complained of is SET ASIDE and the case REMANDED to the court a quo for new trial.

ANAYA v. PALAROAN, Date: 26 Nov 1970 Ponente: Reyes, JBL Topic: Voidable Marriages; Grounds for Annulment; Fraud DOCTRINE: Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of article 86, providing that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage.

FACTS: Aurora Anaya and Fernando Palaroan were married on 4 Dec 1953. On 7 Jan 1954, Fernando filed an action for annulment of the marriage on the ground that his consent was obtained through force and intimidation, docketed in CFI of Manila, Civil Case #21589. this case was dismissed and Anayas counterclaim for damages was granted. While the amount of the counterclaim was being negotiated, Fernando divulged to Aurora that several months prior to their marriage he had premarital relationship with a close relative of his. Upon learning of this, Aurora then filed a case for the annulment of their marriage on the ground of fraud the non-disclosure of such pre-marital relationship. ISSUE: W/N the non-disclosure to a wife by her husband of his pre-marital relationship with another woman is a ground for annulment of marriage. HELD: NO. Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of article 86, providing that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage.
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For fraud as a vice of consent in marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the Civil Code, which provides: ART. 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (4) 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 her husband or his wife, as the case may be; This fraud, as vice of consent, is limited exclusively by law to those kinds or species of fraud enumerated in Article 86, as follows: ART. 86. Any of the following circumstances shall constitute fraud referred to in number 4 of the preceding article: (1) Misrepresentation as to the identity of one of the contracting parties; (2) Non-disclosure of the previous conviction of the other party of a crime involving moral turpitude, and the penalty imposed was imprisonment for two years or more; (3) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband. No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. The intention of Congress to confine the circumstances that can constitute fraud as ground for annulment of marriage to the foregoing three cases may be deduced from the fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given special treatment in a subsequent article within the chapter on void and voidable marriages. If its intention were otherwise, Congress would have stopped at Article 85, for, anyway, fraud in general is already mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in number 4 of the preceding article," and proceeds by enumerating the specific frauds (misrepresentation as to identity, nondisclosure of a previous conviction, and concealment of pregnancy), making it clear that Congress intended to exclude all other frauds or deceits. To stress further such intention, the enumeration of the specific frauds was followed by the interdiction: "No other misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of the enumerated circumstances that would constitute a ground for annulment; and it is further excluded by the last paragraph of the article, providing that "no other misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a marriage. While a woman may detest such non-disclosure of premarital lewdness or feel having been thereby cheated into giving her consent to the marriage, nevertheless the law does not assuage her grief after her consent was solemnly given, for upon marriage she entered into an institution in which society, and not herself alone, is interested. The lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it agrees with the rule or not. d. Force, intimidation and undue influence FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; NCC Article 1335. There is violence when in order to wrest consent, serious or irresistible force is employed. There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent. To determine the degree of intimidation, the age, sex and condition of the person shall be borne in mind. A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent. (1267a)
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NCC Article 1336. Violence or intimidation shall annul the obligation, although it may have been employed by a third person who did not take part in the contract. (1268) NCC Article 1337. There is undue influence when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress. (n) RPC Article 344. Last Paragraph. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the coprincipals, accomplices and accessories after the fact of the above-mentioned crimes.

She lived with her husband in his parents home but considered him a stranger since she doesnt love him She was kept a prisoner in the house; she never occupied the same bed with husband Never had sexual intercourse except on June 1, 1949 forced by husband using a knifeshe mustered courage to escape from her husbands home

DEFENDANTS CLAIMS: - Marriages were regular and legal - Entered into marriage freely and voluntarily - Plaintiff not kept a prisoner - Plaintiff would everyday ask her father in law to give her and her husband their own house and business - She slapped heronly when she ran away with P1200 and when asked where she came from she retorted it was none of his business CFI: finding the plaintiffs marriage consummated only by intimidation and force and that plaintiff never for a moment acquiesced to the status of a wife to the defendant and declared two marriages between them null and void; defendant ordered to return the P1200 and whatever personal belongings the plaintiff had left in their house Witnesses: Judge Delfin Hofilena for defendant but testified in cross examination that plaintiff came to him and confided that she was being compelled to marry a man she did not like TE SENG: plaintiff ran away, her father asked help from him to take daughter home; confessed that daughter did not want to marry the defendant DECISION OF SC: The decision appealed from is AFFIRMED with the sole modification that the amount ordered return to plaintiff should be P1248 according to evidence and not P1200. REASONS: 1) While it is true that it is the policy of the law to maintain the marriage ties, when it is amply proved that the marriage is effected through duress and intimidation and w/o the consent and against the will of one of the parties, there are no ties to be preserved and the marriage should consequently be annulled 2) There was no voluntary cohabitation on the wifes part

CASES
SISON v. TE LAY LI FACTS: Appeal from a decision of CFI Davao declaring the two marriages celebrated one after another on April 28, 1949 null and void on the ground of plaintiffs consent was obtained through force and intimidation employed upon her by her father. Morning of April 28, 1949civil wedding before Judge Delfin Hofilena of MC of Davao, afternoonremarried in accordance with rites of Republic of China before Chinese Consul S.T. Mih in office in Davao City PLAINTIFFS TESTIMONY: - Defendant never wooed her - Wedding arranged by father - Father whipped her often as she opposed marriage - Resorted to beating her - She ran away from home but found by father and promised she will not force her again - But renewed subject of marriagehanded her a knife telling her to choose between her life of hisbecause of fear that her father might kill her she agreed to the marriage - Testimony corroborated by mother and Epifania del Riorelative of her mother

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RUIZ v. ATIENZA (This is an OG case that could not be found online nor in the library. I did however find a digest which I adjusted to our format. - Macky) Nature: Petition for annulment Ponente: Bengzon Date: 18 March 1941 DOCTRINE: Intimidation alone does not constitute force/violence enough to annul a marriage. FACTS: Relevant Provision of Law: Marriage Law, Act. 3613 Jose Ruiz filed for annulment against Pelagia Atienza. Earlier, Jose impregnated Pelagia. On 14 November 1938, Pelagia gave birth. On this same day, Pelagias father, cousin, and three other companions went to Joses dorm and threatened him by balisong to marry Pelagia. They also threatened him by saying they would charge him with immorality and challenge his admission to the bar. ISSUE: W/N such acts constitute sufficient grounds for annulment RULING: No, grounds for annulment were not established. First off, annulment because of force/violence under the Marriage Law (Act 3613) did not include intimidation. The acts Jose alleged were only acts of intimidation, nothing more. There was no evidence of bodily harm, as only a 1 inch knife was found in evidence. Further, Jose had many occasions to escape from his captors as they took him from his dorm room, a fairly public place which could have been seen by his friends or by policemen. e. Impotence FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

CASES
SARAO v. GUEVARA (c/o Jenin) JIMENEZ v. CANIZARES Nature: Action for annulment of marriage, filed by Joel Jimenez Ponente: J. Padilla Date: 31 August 1960 FACTS: Relevant Provision of Law: Article 45, NCC. On 7 June 1955 in the CFI of Zamboanga the plaintiff Joel Jimenez filed a complaint, praying for a decree annulling his marriage to the defendant Remedios Caizares, celebrated on 3 August 1950, because the orifice of her vagina was too small to allow the penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after they had been married. On 14 June 1955 the wife was summoned and served a copy of the complaint but she did not file an answer. On 29 September 1956, pursuant to the provisions of article 88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether there was a collusion, to intervene for the State to see that the evidence for the plaintiff is not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order requiring the defendant to submit to a physical examination by a competent lady physician to determine her physical capacity for copulation and to submit, within ten days from receipt of the order, a medical certificate on the result thereof. On 14 March 1957 the defendant was granted additional five days from notice to comply with the order of 17 December 1956 with warning that her failure to undergo medical examination and submit the required doctor's certificate would be deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would be rendered. After hearing, at which the defendant was not present, on 11 April 1957 the Court entered a decree annulling the marriage between the plaintiff and the defendant. ISSUE:
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Can the marriage be annulled based solely on the husbands testimony that the wife is impotent? RULING: NO. The lone testimony of the husband that his wife is physically incapable of sexual intercourse is insufficient to tear asunder the ties that have bound them together as husband and wife. Marriage in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The law specifically enumerates the legal grounds, that must be proved to exist by indubitable evidence, to annul a marriage. In the case at bar, the annulment of the marriage in question was decreed upon the sole testimony of the husband who was expected to give testimony tending or aiming at securing the annulment of his marriage he sought and seeks. Whether the wife is really impotent cannot be deemed to have been satisfactorily established, because from the commencement of the proceedings until the entry of the decree she had abstained from taking part therein. Although her refusal to be examined or failure to appear in court show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical examination unless compelled to by competent authority. "Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency." The decree appealed from is SET ASIDE and the case REMANDED to the lower court for further proceedings. f. Affliction with STD FC Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)

FC Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or 3. Who can seek annulment FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Articles 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a) 4. Prescription FC Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;
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(2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Articles 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a) 5. Procedure in annulment a. support and custody pendent lite FC Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n) b. safeguards against collusion FC Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) c. no confession of judgment FC Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) NCC Article 2035. No compromise upon the following questions shall be valid: (1) The civil status of persons; (2) The validity of a marriage or a legal separation; (3) Any ground for legal separation; (4) Future support; (5) The jurisdiction of courts; (6) Future legitime. (1814a)

CASES
Jocson v. Robles, supra. Tolentino v. Villanueva, supra. 6. Effects of Annulment FC Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n) FC Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.
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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. FC Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or the trustee of their property may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n) FC Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) FC Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. FC Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. FC Art. 237. The annulment or declaration of nullity of the marriage of a minor or of the recorded agreement mentioned in the foregoing. Articles 234 and 235 shall revive the parental authority over the minor but shall not affect acts and transactions that took place prior to the recording of the final judgment in the Civil Register. (n) Republic Act No. 6809 December 13, 1989

AN ACT LOWERING THE AGE OF MAJORITY FROM TWENTY-ONE TO EIGHTEEN YEARS, AMENDING FOR THE PURPOSE EXECUTIVE ORDER NUMBERED TWO HUNDRED NINE, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Article 234 of Executive Order No. 209, the Family Code of the Philippines, is hereby amended to read as follows: "Art. 234. Emancipation takes place by the attainment of majority. Unless otherwise provided, majority commences at the age of eighteen years." Section 2. Articles 235 and 237 of the same Code are hereby repealed. Section 3. Article 236 of the same Code is also hereby amended to read as follows: "Art. 236. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of civil life, save the exceptions established by existing laws in special cases. "Contracting marriage shall require parental consent until the age of twenty-one. "Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code." Section 4. Upon the effectivity of this Act, existing wills, bequests, donations, grants, insurance policies and similar instruments containing references and provisions favorable to minors will not retroact to their prejudice. Section 5. This Act shall take effect upon completion of its publication in at least two (2) newspapers of general circulation. Approved: December 13, 1989

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7. Marriage when one spouse is absent FC Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a) FC Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n) FC Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) FC Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) NCC Article 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2) 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 if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. (29a) NCC Article 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage: (2) In a subsequent marriage under article 83, number 2, that the former husband or wife believed to be dead was in fact living and the marriage with such former husband or wife was then in force; NCC Article 87. The action for annulment of marriage must be commenced by the parties and within the periods as follows: (2) For causes mentioned in number 2 of article 85, by the spouse who has been absent, during his or her lifetime; or by either spouse of the subsequent marriage during the lifetime of the other; RPC Article 349. Bigamy. - The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before
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the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

CASES
Jones v. Hortiguela, supra. IN THE MATTER OF THE DECLARATION OF THE CIVIL STATUS OF LUKBAN v. REPUBLIC OF THE PHILIPPINES Nature: Petition for a declaration that Lourdes G. Lukban is a widow of her husband Francisco Chuidian who is presumed to be dead and has no legal impediment to contract a subsequent marriage. Ponente: Bautista Angelo, J. Date: February 29, 1956 DOCTRINE: A petition for judicial declaration that petitioners spouse is presumed to be dead cannot be entertained because it is not authorized by law. FACTS: Lourdes G. Lukban, contracted marriage with Francisco Chuidian on December 10, 1933 at the Paco Catholic Church, Manila. On December 27, of the same year, Francisco left Lourdes after a violent quarrel and since then he has not been heard from despite diligent search made by her. She also inquired about him from his parents and friends but no one was able to indicate his whereabouts. She has no knowledge if he is still alive, his last known address being Calle Merced, Paco, Manila. She believes that he is already dead because he had been absent for more than twenty years, and because she intends to marry again, she desires that her civil status be defined in order that she may be relieved of any liability under the law. The subject petition was filed by Petitioner Lourdes G. Lukban. The Solicitor General opposed the petition on the ground that the same is not authorized by law. After Petitioner had presented her evidence, the court sustained the opposition and dismissed the petition. Petitioner then appealed to this court. ISSUE: W/N the petition for judicial declaration that Lourdes Lukban is a widow and that her husband is presumed to be dead is valid. RULING: NO. The petition filed by Lukban is not valid for being contrary to law. The petition is similar to the petition in case of Nicolai Szartraw wherein it was held that a petition for judicial declaration that Petitioners husband is

presumed to be dead cannot be entertained because it is not authorized by law, and if such declaration cannot be made in a special proceeding similar to the present, much less can the court determine the status of Petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243). The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of this nature is well expressed in the the same case, to wit: A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. It is, therefore, clear that a judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Appellant claims that the remedy she is seeking for can be granted in the present proceedings because in the case of Hagans vs. Wislizenus (42 Phil., 880), it was declared that a special proceeding is an application or proceeding to establish the status or right of a party, or a particular fact. However, that remedy can be invoked if the purpose is to seek the declaration of death of the husband, and not, as in the present case, to establish a presumption of death. If it can be satisfactorily proven that the husband is dead, the court would not certainly deny a declaration to that effect as has been intimated in the case of Nicolas Szartraw. Appellant also claims that the present petition can be entertained because Art. 349 of the Revised Penal Code, in defining bigamy, provides that a person commits that crime if he contracts a second marriage before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings and, it is claimed, the present petition comes within the purview of this legal provision. The argument is untenable for the words proper proceedings used in said article can only refer to those authorized by law such as those which refer to the administration or settlement of the estate of a deceased person (Art. 390 and 391, New Civil Code). This is supported by Jones vs. Hortiguela (64 Phil., 179), wherein this Court made the following comment:
For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living,
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that each former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68).

dead, but merely asks for a declaration that he be presumed dead because he had been unheard from in seven years.
The petition is for a declaration that the petitioner's husband is presumptively dead. But this declaration, even if judicially made, would not improve the petitioner's situation, because such a presumption is established by law. A judicial pronouncement to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration. A judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof cannot reach the state of finality or become final. XXX If a judicial decree declaring a person presumptively dead, because he had not been heard from in seven years, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, for such a presumption is still disputable and remains subject to contrary proof, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.

GUE v. REPUBLIC Nature: Appeal from CFI Order Ponente: MONTEMAYOR Date: March 24, 1960 DOCTRINE: A judicial declaration that a person is presumptively dead, because he had been unheard from in seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Thus, such declaration is not authorized by law. FACTS: Relevant Provision of Law: Art. 390, NCC On October 11, 1944, Angelina L. Gue got married to William Gue. On January 5, 1946, her husband left Manila where they were residing and went to Shanghai, China, but since then, he had not been heard of, neither had he written to her, nor in anyway communicated with her as to his whereabouts. Despite her efforts and diligence, she failed to locate him. From January, 1949, the petitioner had sent letters to her husband in Shanghai, but she never received any reply thereto. She made inquiries from the Bureau of Immigration in 1955 and 1958 as to whether her husband had already returned to the Philippines and she received Exhibit D and Exhibit E from said Office, which gave no information as to the whereabouts of her husband. It was also established by petitioner's testimony that no properties have been acquired by said spouses during their union, and during which they begot two children, named Eugeni and Anthony, surnamed Gue Thus, Angelina filed a petition to declare her husband, William Gue, presumptively dead. CFI: dismissed the petition CFI cited the case of "Petition for the Presumption of Death of Nicolai Szatraw", 81 Phil., 461. The Supreme Court held: In this case, there is no right to be enforced nor is there a remedy prayed for by the petitioner for the final determination of his right or status or for the ascertainment of a particular fact, for the petition

Petitioner Angelina contends, With the promulgation of the New Civil Code in 1950, particularly, Article 390 thereof, the Courts are now authorized to declare persons presumptively dead. ISSUE: W/N a petition for judicial declaration that ones spous e is PRESUMED TO BE DEAD may prosper. RULING: NO. Such declaration is not authorized by law. RTC decision is affirmed. We believe that the petition at bar comes within the purview of our decision in the case of Nicolai Szatraw, wherein it was held that a petition for judicial declaration that petitioner's husband is presumed to be dead cannot be entertained because it is not authorized by law , and if such declaration cannot be made in a special proceedings similar to the present, much less can the court determine the status of petitioner as a widow since this matter must of necessity depend upon the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that he is merely presumed to be dead. (See italicized portion in cited under CFI ruling)

does not pray for a declaration that the petitioner's husband is

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8. Marriages dissolved abroad FC Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a) Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) DOJ Opinions Republika ng Pilipinas KAGAWARAN NG KATARUNGAN Department of Justice Manila OPINION NO.: 134 S. 1993 2nd Indorsement September 23,1993 Respectfully returned to the Honorable Secretary ( Attn.: Secretary Sime D. Hidalgo), Department of Foreign Affairs, Pasay City, the within request of the Ambassador of the Embassy/Mission of the Philippines in Vienna, for opinion as to whether a foreign divorce obtained by an alien spouse, who was a former Filipino citizen, will entitle his/her Filipino spouse to remarry. We concur with the view that said Filipino Spouse may legally remarry based on Article 26 of the Family Code of the Philippines (E.O. No. 209, as amended ), which reads as follows: Art. 26. xxxxx
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Where a marriage between a Filipino citizen and a foreigner is validity celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. In Opinion No. 10, s. 1989, we had occasion to rule that:

Divorce, as a general rule, is not recognized in the Philippines. However, in the situation contemplated in Article 26 of the Family Code, Supra, and only in that instance, the effect of divorce, which is the severance of the marriage ties, is allowed to benefit the Filipino spouse who is thereby given capacity to remarry under Philippine law. It is said that the idea of inclusion of the second paragraph of Article 26 is to avoid the absurd situation of a Filipino being still legally married to his or her alien spouse, although the latter is no longer married to the Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her national law. It will, likewise, solve the problem of many Filipino women who, under the Civil Code, are still considered married to their alien husbands even after the latter have already validly divorced under their (the husbands) national law and perhaps have already remarried (Alicia V. Sempio-Diy, Handbook on the Family Code of the Philippines, p. 27). It is believed that the above ruling equally applies to the instant case. The aforequoted Article 26 merely states alien spouse without taking into consideration his nationality at the time of marriage. Therefore, the fact the spouse who obtained the foreign divorce was a former Filipino citizen is not controlling. What is important is that the divorce was obtained by the spouse who is not a citizen of the Philippines, in order that the second paragraph of Article 26 of the Family Code can apply.

Ramon J. Liwag Acting Secretary 9. Illegal Marriages FC Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

FC Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counsellor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counselling. Failure to attach said certificates of marriage counselling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage. NCC Article 84. No marriage license shall be issued to a widow till after three hundred days following the death of her husband, unless in the meantime she has given birth to a child. (n) RPC Article 351. Premature marriages. - Any widow who shall marry within three hundred and one day from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos. The same penalties shall be imposed upon any woman whose marriage shall have been annulled or dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and one day after the legal separation. RPC Article 352. Performance of illegal marriage ceremony. - Priests or ministers of any religious denomination or sect, or civil authorities who shall perform or authorize any illegal marriage ceremony shall be punished in accordance with the provisions of the Marriage Law.

Article 259. If the marriage is dissolved by the death of the husband, and the mother contracted another marriage within three hundred days following such death, these rules shall govern: (1) A child born before one hundred eighty days after the solemnization of the subsequent marriage is disputably presumed to have been conceived during the former marriage, provided it be born within three hundred days after the death of the former husband: (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is prima facie presumed to have been conceived during such marriage, even though it be born within three hundred days after the death of the former husband. (n) Art. 351. Premature marriages. Any widow who shall marry within three hundred and one day from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos. The same penalties shall be imposed upon any woman whose marriage shall have been annulled or dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and one day after the legal separation.

Constancia Masinsin is charged under Article 351 of the Revised Penal Code. Masinsin married her first husband, Irineo Bermudez in July 1926 in the town of Pililia Rizal. They were together for around 18 years and half or until February 3, 1945. During that time, they did not have a single child because according to her, when they went to the doctor, Irineo was told to be impotent. On February 3, 1945, when McArthurs forces entered the northern part of Manila, Irineo were kidnapped by a group of guerillas from their home in Alvarado Street together with some of their neighbors. Later, his corpse was found in a creek along Tower Street, near St. Lukes Hospital. Constancia ordered the burial of Irineo at a school in Manila. Five months after the death of Irineo, on July 5, 1945, Constancia was remarried to William Mascarinas and two years later, she gave birth to her first child. ISSUE: Is Constancia liable under Article 351 of the RPC? RULING: No. The Attorney Generals interpretation of Article 351 of the Revised Penal Code is a strict and literal one which ignores the new provisions of the civil code. It should be noted that the new civil code provisions established rebuttable presumptions in order to prevent dubious paternity with the assumption that the husband is not impotent. Article 351 of the Revised Penal Code originated from Article 476 of the Old Revised Penal Code the purpose of which was also to avoid doubtful paternity. In this case, after 18 years and a half of not having children, along with the Doctors statement of Irineos impotence, with this knowledge, Constancia remarried after 5 months. Her birth of her first son after two
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CASE
PEOPLE v. MASINSIN Nature: Criminal Case Ponente: De La Rosa Date: June 4, 1953 DOCTRINE: To be liable under Article 351 of the Revised Penal Code, the husband should not have been impotent. FACTS: Relevant Provision of Law: Article 259 of the Civil Code and 351 of the Revised Penal Code

years confirms that the conception of her son was way beyond 301 days. In this case, there is an absence of malice which is essential to any crime because she knew that it was impossible that she was pregnant because of Irineos impotence. The prohibition of 301 days or ten months only applies to those cases wherein there exists a possibility of pregnancy by the deceased husband. This is why the prohibition ends as soon as she delivers the baby if she is pregnant. Otherwise, as in this case, she is free to remarry. NOTES: Caveat! The case was written in Spanish, Im not entirely sure of the accuracy of my digest. This was an effort made possible by online translators and filling in the gaps using the most logical way I can. Arby.

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