Article 37.

Marriages between the following are incestuous and void from the beginning, whether the
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)

REASONS FOR PROHIBITION OF INCESTUOUS MAR- RIAGE.
universally condemned as grossly indecent, immoral, and inimical
o abhorrent to the nature,
o confusion of rights and duties incident to family relations
special problem of social placement,
o status is so confused, as is that of its parents
deficient and degenerate offsprings,
o prevent coming together in offspring of any deleterious recessive genes
social and psychological aspects of an incestuous marriage.
o promote the solidarity of the nuclear family.
o controls sex rivalries and jealousies within the family unit.
o ensuring suitable role models, the incest restriction prepares the individual for
assumption of familial responsibility as an

Article 38. The following marriages shall be void from the beginning for reasons of public policy:
1) Between collateral blood relatives, wheth- er 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 ad- opted child;
5) Between the surviving spouse of the adopting parents and the adopted child;
6) Between the surviving spouse of the ad- opted child and the adopter;
7) Between an adopted child and a legiti- mate child of the adopter;
8) Between the adopted children of the same adopter;
9) Between parties where one, with the in- tention to marry the other, killed that other per- sons
spouse or his or her own spouse. (82)

REASONS FOR THE PROHIBITION OF VOID MARRIAGES.
against public policy
will not serve the fundamental objective of nurturing a stable family unit that can effectively be the
foundation of society.
enumeration in Article 38 is exclusive.
o guardian and his or her ward can validly marry each other
o principal and his or her agent can marry each other
! provided they do not suffer from any other impediment

COLLATERAL BLOOD RELATIVES BY CONSANGUINITY.
Marriage between collateral blood relatives up to the fourth civil degree - the policy of the state
relationship by consanguinity is not capable of dissolution.
o mere fact that a common ascendant, died does not sever the blood relationship of first
cousins.
How to determine whether or not two persons are relatives of each other up to the fourth civil degree
o consider nearest and immediate common ascendant
o count number of relatives from one of them to common ascendant and from common
ascendant to the other one


COLLATERAL HALF-BLOOD RELATIVES BY CONSAN- GUINITY.
law does not provide that marriages between collateral blood relatives by the half-blood are
prohibited.
Example
o X is the son of C and Wife 1.
o L is the daughter of Y, who is the C of Husband and Wife 2.
o The nearest and immediate common ascendant of X and L is C.
! They are relatives by consanguinity in the 3
rd
civil degree.
! related thru C, who is the father of X and the grandfather of L
! in effect, X is the half blood uncle of L.
Two different views re: validity of marriage of half blood uncle and nieces or aunts and nephews
o Audley v. Audley Void
! since there is no mention in the staute, the prohibition extended to relatives of
the half-blood as well as relatives of the whole blood
! prohibition against public policy marriages refers to the relationship generally
known and understood, without regard to the percentage of their blood
relationship
! prohibition was enacted for the benefit of public health and perpetuation of
human race. marriage on which the action is predicated being void, there is no
basis for the maintenance of the action for divorce.
o In Re Simms Estate, 26 - marriage between uncle and niece by the half blood is not
! not specifically included by law as a void
! if legislature intended to prohibit such marriages, it would have used similar
language,
failure to do so suggests that it did not intend to nullify such marriage
In Re Simms Estate which says such marriage is valid seems to be the proper view
o Only those expressly prohibited by law as void shall be void
o must be strictly construed in favor of contracting parties and against its illegality.

RELATIONSHIP BY AFFINITY.
related by affinity
o step parents and children
o parents in law and children in law
grew out of the canonical maxim that marriage makes husband and wife one.
o relation, by affinity, to spouses blood relatives and vice versa
Affinity
o connection formed and arising by marriage,
o places the spouse1 in the same degree of nominal propinquity to the relatives of the
spouse 2 as that in which she herself stands towards them, and gives spouse2 same
reciprocal connection with the relations of the spouse 1.
o contra-distinction to consanguinity because there is no real kindred.
o each party becomes related to all consanguinei of the other party to the marriage,
! but respective consanguinei do not become related by affinity to each other
scandalous for parents-in-law to marry their children-in-law because it is more in keeping with
Philippine customs and traditions
o parents-in-law treat children-in-law just like their own children and vice-versa
Step-brother and step-sister can" can marry
o this relationship by affinity is not included in the prohibition.

EFFECT OF TERMINATION OF MARRIAGE ON THE AFFINITY PROHIBITION.
Termination of marriage by annulment or nullification
o relationships by affinity between step-parents and step-children as well as parents-in-
law and children-in-law is terminated.
o theybecome strangers to each other.
o can marry each other legally
! American case Back v. Back deceased husband and daughter of his former
wife (step dad and step daughter)
Termination of marriage in case of death of spouse
o affinity is dissolved if the spouse has no living issues or children and one of the
spouses dies
o relationship by affinity is continued despite the death if there are living issues or
children of the marriagein whose veins the blood of the parties are commingled,
! relationship of affinity was continued through the medium of the issue of the
marriage

ADOPTIVE RELATIONSHIP.
limited to one of parent and child.
o while adopted is not related to the surviving spouse, legitimate child and other adopted
children of the adopter, law makes express declaration that they cannot marry each other,
specifically and expressly limited by law to those mentioned in
o adopter cannot marry the adopted and the surviving spouse of the adopted
o adopted cannot marry any of the following:
! adopter,
! surviving spouse of the adopter,
! legitimate child of the adopter, and
! other adopted children of the adopter.
law seeks to duplicate structure of the natural family
o to ensure that artificial family will mirror a natural family
adopted can marry the adopters
o parents,
o illegitimate child, and
o other relatives, whether by consanguinity or affinity,
adopter can marry adopted childs
o legitimate, illegitimate or adopted child,
o natural parent,
o other relatives, whether by consanguinity or affinity,
Article 38 qualifies spouse of either the adopted or the adopter as a surviving spouse is void
o implies that the marriage between the surviving spouse of either the adopted or the
adopter has been terminated by death.
o if marriage of the adopter and spouse is judicially nullified or annulled and barring any
other ground to make the marriage void, " adopted can validly marry the previous
spouse of the adopter
! spouse is not a surviving spouse as contemplated by law but a former spouse
who, after the finality of the nullity or annulment decree, has become a
complete stranger to the adopter.
! adopter can marry the spouse of the adopted if the marriage of the adopted and
his or her spouse is severed by a final judicial nullity or annulment decree.

INTENTIONAL KILLING OF SPOUSE.
highly criminal, involving grave moral turpitude,
guilty spouse can undertake a sinister scheme to kill his or her spouse in order to marry another
person
no guarantee that he or she will not do the same
guilty party must be animated by an intention to marry another person.
if the reason is not for purpose of marrying someone else, the marriage is valid
o ex. wife kills her husband because he was an incorrigible philanderer and thereafter
marries her lawyer marriage is valid.
No prior criminal conviction by the court for the killing is required
o mere preponderance of
o can be a unilateral intention and need not be shared by the other spouse so that even
the unknowing party will be affected by the void character of the marriage
applies to a person who kills the spouse of another to marry the latter.

Article 39. The action or defense for the dec- laration of absolute nullity of a marriage shall not
prescribe. (n) (Amended by Executive Order Num- ber 227 dated July 17, 1987 and further amended by
Republic Act No. 8533 dated February 23, 1998) No longer prescribes.

PRESCRIPTIVE PERIOD TO FILE FOR A JUDICIAL DECLARATION OF NULLITY OR TO
INVOKE IT AS A DEFENSE.
JDN
o does not legally dissolve a marriage
! invalid from the beginning
! being non-existent, cannot be dissolved
o merely declares or confirms the voidness, non- existence, or incipient
o imprescriptible and can be filed by the children even after the death of the contracting
party
! if death of either party would extinguish cause of action or the ground for
defense, then it cannot be considered imprescriptible
Supreme Court en banc resolution in A.M. No. 02-11-10 March 15, 2003
o only husband and wife can file the case
o should any of the spouses die, the case will be closed or terminated
o heirs can no longer file a case for nullity of their parents or of their parent with step-
parent
EO 227
o psychologically incapacity celebrated prior to effectivity of the Family Code "
o such action or defense must be filed or invoked within ten years from August 3, 1988,
" August 1, 1998.
o if celebrated after the effectivity of Family Code, " action or defense shall not
prescribe.
RA 8533 further amended Article 39 " deleted prescriptive period of 10 years
o no prescriptive period to nullify a marriage under Article 36
o All void marriages under the Family Code do not prescribe.

PARTIES.
Family Code is silent as to who can file a petition to declare nullity of a marriage
equitable doctrine of unclean hands
o court should not grant relief to the wrongdoer
o not a rule as applied in nullity actions
! merely judge-made and has no statutory
o Any of the parties in a void marriage can file a nullity case even though such party is
the wrongdoer
o wrongdoer may be held liable for damages by way of counterclaim by the other
contracting party under the provisions on Human Relations in the Civil Code, specially
Articles 19, 20, and 21 thereof.
Supreme Court Resolution A.M. No. 02- 11-10-SC " only the husband or wife can file a court case
declaring the marriage void
o prior to the resolution, any interested party can file a direct case for nullity of the
marriage.
o heirs can no longer file a case for the nullity of marriage of their parents or of their
parent with their step- parent
However void marriage can still be collaterally attacked by any interested party
o in any proceeding where the determination of validity of marriage is necessary to give
rise to certain rights or to negate certain rights.
o example intestate proceeding where certain heirs can attack validity of marriage of the
deceased parent so that children of the deceased parent can be considered illegitimate for
purposes of inheritance.

Article 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.

JUDICIAL DECLARATION OF NULLITY OF PREVIOUS MARRIAGE (JDN.
If a marriage is void ab initio, to validly contract a subsequent valid marriage, necessary to:
o Obtain a JDN
! Necessary before one can remarry, even if the previous marriage is void
! Absence of the JDN means that the parties cannot comply with art 52 and 53
o Comply with art 52 " register JDN with local civil registrar
o Comply with art 53 "register liquidation, partition and distribution or properties with
local registry of property
Subsequent marriage is void in accordance with art 40, 52 and 53 if
o there is no JDN of previous void marriage
o Failure to comply with 52 and 53
! JDN is obtained but not registered with the local civil registrar
! Liquidation, partition, and distribution of the properties was also not recorded
in the proper registry of property (needs JDN as well)
Reason
o nullity of marriage should be ascertained and declared by decree of a court of
competent jurisdiction for good order of society and peace of mind of persons concerned,
o to preclude disputes or denial of the invalidity of the marriage by providing for
obtainable evidence that can be used as proof in the form of a judicial record

HISTORICAL BACKGROUND OF THE NEED FOR A JUDICIAL DECLARATION OF NULLITY.
People v. Aragon February 28, 1957,
o no need for a judicial declaration of nullity of a void marriage.
Wiegel v. Sempio Diy August 19, 1986,
o need for a judicial declaration of nullity of a void marriage.
Family Code August 3, 1988,
o by statute, rule now is that there is a need for a judicial declaration of nullity of a void
marriage only for purposes of remarriage.
status of a subsequent marriage depends upon the time of the solemnization of the said subsequent
marriage. For example, Juan and Ana married on September 2, 1952. Marriage was void. Juan
married Gina without a JDN. The validity of this subsequent marriage depends on when they
married.
o March 7, 1960 - subsequent marriage is valid
! prevailing doctrine was Aragon allowing the validity of subsequent marriage of
Juan and Gina without need of a judicial declaration of nullity of Juans
previous void marriage with Ana.
o 1972- void
! prevailing doctrine required a judicial declaration of nullity of Juans previous
void marriage with Ana.
o March 7, 1978- valid
o September 15, 1986 - void
! Wiegel case
o December 26, 1986, - valid because,
o March 7, 1991- void
Domingo v. Court of Appeals - reason for need to obtain a judicial declaration of nullity for purposes
of remarriage
o Family Code settled once and for all conflicting jurisprudence on the matter
! declaration of absolute nullity of a marriage is now explicitly required
either as a cause of action or a
ground for defense.
o Where absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law for marriage to be free
from legal infirmity is a final judgment declaring the previous marriage void.
! 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.
o proper interpretation of Article 40 is position in the provision of the word solely.
! solely would clearly qualify phrase for purposes of remarriage
for purposes of remarriage, the only legally acceptable basis for
declaring a previous marriage and absolute nullity is the JDN
the only acceptable proof the nullity of first marriage for purposes of
remarriage is a JDN
! JDN can be used for other purposes aside from remarriage
action for liquidation, partition, distribution and separation of property
action for custody and support of their children and the delivery of the
latters presumptive legitimes.
o In such cases, evidence need not be limited solely JDN
o aim is to do away with any continuing uncertainty on status of the second marriage
De Castro v. Assidao-De Castro
o case for support, courts can declare a marriage void even without prior judicial
declaration of nullity of void marriage
! because validity of a marriage, as a general rule, can be collaterally attacked.
o But in for purposes of remarriage, the only acceptable proof is a judicial declaration of
nullity of marriage.

ARTICLE 40 AND BIGAMY.

Two types of subsequent void marriages difference lies in the status of the first marriage
Void Bigamous Marriage Art. 35 (4) and Art. 41
o 1
st
marriage was valid or voidable
o subsequent marriage was contracted at the time when the 1
st
marriage which was valid
was still subsisting
Void for failure to comply with requirements Art. 40 in relation to 52 and 53
o Subsequent void marriage contracted while a previous void marriage is still subsisting
o first marriage is void
o subsequent marriage without obtaining a JDN

NOT THE SAME AS BIGAMY
o Article 40 does not expressly declare or define that a subsequent void marriage obtained in violation
of Article 40 is bigamous.
o no bigamy if first marriage is void
o Article 40 precisely contemplates a situation where the first marriage is void.


ARTICLE 40 AND CRIMINAL BIGAMY.
o committed by any person who shall contract a second or subsequent marriage
o before former marriage has been legally dissolved, or
o before absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceeding
o first marriage is valid or at least annullable and not void from the beginning.
o subsequent marriage would have been valid had it not been bigamous.
o if 2
nd
marriage is void for grounds other than bigamy, there can be no bigamy
o good faith in contracting the second marriage is a defense in the crime of bigamy.
o Mercado v. Mercado see Vitug Dissent
o criminal offense of bigamy is committed for as long as a subsequent marriage was
contracted by a person without him or her obtaining a judicial declaration of nullity of his
or her first marriage pursuant to Article 40 of the Family Code.
o criminal bigamy is determined not by the fact that the first marriage is legally void but
by the fact that no judicial declaration of nullity of the first marriage was obtained prior
to the subsequent marriage.
o dissenting opinion of Associate Justice Jose Vitug
! criminal law on bigamy contemplated an existing marriage or at least an
annullable or voidable one but not a null and void one.
! void marriage is a defense in a criminal bigamy case regardless of whether or
not a judicial declaration of its nullity has been obtained.
! criminal law on bigamy, does not require a judicial declaration of nullity in
order to set up the defense of the nullity marriage in cases of criminal bigamy.
! total nullity and inexistence of a void marriage should be capable of being
independently raised by way of a defense in a criminal case for bigamy
! While accused may have violated Article 40, such violation is not a bar in
invoking the nullity of the first marriage because Article 40 merely aims to put
certainty as to the void status of the subsequent marriage and is not aimed as a
provision to define bigamy under the Family Code or criminal bigamy under the
Revised Penal Code. The only effect of the non-observance of Article 40 is to
make the subsequent marriage void pursuant to Articles 52 and 53.
o Domingo v. Court of Appeals
o authority for rule that in instance where a party who has previously contracted a
marriage which remains subsisting desires to enter into another marriage is legally
unassailable, he is required by law to prove that the previous one was an absolute nullity.
But this he may do on the basis solely of a final judgment declaring such previous
marriage void
o rule enunciated in Aragon, still prevails, notwithstanding the provisions of Family
Code particularly Articles 40, 52 and 53 thereof and prouncements of the Supreme Court
in; Weigel v. Sempio-Diy, and Domingo v. CA,.
o judicial declaration of nullity of a void marriage and its registration with the proper civil registry
merely impose additional requisites for the validity of a subsequent marriage contracted by a party
to a void marriage and are not meant to change the concept of bigamy or its elements.
o As to the cases of, Weigel, , and Domingo, - do not involve prosecutions for bigamy.
Consequently, any pronouncement made therein tending to imply that, in a case for
bigamy, a judicial declaration is the only admissible proof of the nullity of the former
marriage, would merely be an obiter dictum and as such, could not prevail over the rule
enunciated by the Supreme Court in Mendo

Article 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null
and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for
four consecutive years and the spouse present had a well-founded belief that the absent spouse was already
dead. In case of disappearance where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purposes of contracting the subsequent marriage under the preceding paragraph, the spouse present
must institute a summary proceeding as provided for in this Code for the declaration of presumptive death
of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)

Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated
by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.
A sworn statement of the fact and 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.

BIGAMOUS MARRIAGE.
General Rule " Marriage contracted during lifetime of first spouse is null and void.
Bigamy " person who marries another, knowing that the latter is already married and that his
marriage is valid and subsisting
o Even if 1st marriage is annullable or voidable, any subsequent marriage celebrated
without such prior annullable or voidable marriage being in fact annulled,
o the subsistence of a previous marriage
! implies a valid marriage
! does not mean a void
If previous marriage is void and there is a subsequent marriage without judicial declaration of nullity
of the first void marriage, the subsequent marriage is also void technically because it does not
comply with Articles 40, 52, and 53

EXCEPTION: VALID BIGAMOUS MARRIAGE
present spouse obtains a judicial declaration of presumptive death via a summary proceeding in a
court of competent jurisdiction prior to the subsequent marriage
Before declaration can be obtained, it must be shown that
o present spouse had a well founded belief that the absent spouse is dead
o general rule - prior spouse had been absent for four consecutive years and
! shortened to two years in case of disappearance where there is danger of death
under Article 391 of the Civil Code
absent spouse was on a vessel and the vessel was lost during a sea
voyage and has not been heard of for two years since the loss;
on an airplane which was missing and such spouse was not heard of for
two years since the loss of the airplane
in the armed forces has taken part in the war and has been missing for
two years; and
when the absent spouse has been in danger of death under other
circumstances.
judicial declaration of presumptive death is without prejudice to effect of the reappearance of other
spouse
o merely a statement that the prior spouse is merely presumed dead
o declared presumption - prima facie,
! can be overthrown by evidence
o act of death is not really established.

TERMINATION OF THE SUBSEQUENT MARRIAGE.
Automatic termination of subsequent marriage can be obtained by recording of the affidavit of
reappearance of absent spouse in civil registry of residence of parties to subsequent marriage
o Unless there is a judgment annulling the previous marriage.
o only instance where marriage is terminated extra judicially
! but if reappearance is disputed " subject to judicial determination
TWO VALID BIGAMOUS MARRIAGES
o if spouse reappears and there is no filing of affidavit or sworn statement with civil
register of reappearance and
o there is a marriage between the present spouse and the reappearing spouse
o both marriages must be valid
! if the marriage between them is also void, there is no subsequent valid
bigamous marriage.

LIQUIDATION OF THE PROPERTIES OF THE FIRST MARRIAGE.
judicial declaration of presumptive death should be issued for contracting the subsequent marriage
After the issuance of this judicial declaration properties of the first marriage should be liquidated
o Articles 103 and 130 of the Family Code if the marriage to be liquidated is in itself
valid
o no liquidation and the present spouse immediately remarries" the property regime
that will apply in the subsequent marriage will be the complete separation of property.
! if there were a liquidation, parties may agree in settlement as to what type of
property regime will govern
! in the absence of such marriage settlement or void" absolute community of
property regime.
! If the marriage is void " co-ownership
For purposes of opening the succession of the absent spouse after the community property of the
first marriage has been liquidated,
o absentee shall not be presumed dead for purposes of opening his succession till after
an absence of ten years.
o 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.
o If the absentee disappears under circumstances where the risk of death is high as
provided in Article 391 of the Civil Code, four years shall be enough for purposes of the
division of the estate.
o if the person proves to be alive " entitled to the balance of his estate after payment of
all his debts
! may be recovered by motion in the same proceeding

WELL-FOUNDED BELIEF OF DEATH.
time required for presumption to arise has been shortened to four (4) years;
need for a judicial declaration of presumptive death to remarry
stricter standard than the Civil Code
prescribes a wellfounded belief that the absentee is already dead before a petition for declaration
of presumptive death
o depends on the circumstances of the case.
o See Republic v. Nolasco

JUDICIAL DECLARATION OF PRESUMPTIVE DEATH.
General Rule - no judicial declaration of presumptive death is required as such presumption arises
from the law
Only in Article 41 of the Family Code that a judicial declaration of presumptive death is mandatorily
required by law to be obtained by the present spouse only for the purpose of capacitating the
present spouse to remarry.
o judicial declaration of presumptive death is best evidence of well-founded belief on
the part of the present spouse that absent spouse is dead.
o immunizes present spouse charges of bigamy, adultery or concubinage
judicial proceeding shall be summary in nature
for purposes of remarriage, the period of absence to be able to presume an absentee dead
o normal period of four (4) consecutive years
o two (2) consecutive years, if the disappearance occurred under circumstances where
the danger of death is high.

SWORN STATEMENT OF REAPPEARANCE.
subsequent marriage is automatically terminated by the recording of the affidavit of reappearance in
the civil registry of the residence of the parties to the subsequent marriage and due notice to
spouses of subsequent marriage
o such termination is without prejudice to the outcome of any judicial proceeding
questioning such reappearance.
o may be filed by reappearing spouse or any interested party
o includes their parents, their children, the present spouse and even the subsequent
spouse of the present spouse
o parents and children of the other contracting spouse in the subsequent marriage are
also interested parties.
presumption of death will subsist upon the appearance of the absentee prior to the filing of the sworn
statement of reappearance
o absentees mere reappearance, even if made known to spouses in the subsequent
marriage, will not terminate such marriage
o presumption of death of that the former spouse continues despite spouses physical
reappearance
o by fiction of law, still be regarded as legally an absentee until subsequent marriage is
terminated as provided by law.
Atty Sta. Maria believes though that the better view is that judicial declaration of presumptive death
is immediately rendered functus officio if the reappearance of the absent spouse is authentic
o mere fact of reappearance renders without effect the judicial declaration of
presumptive death creating therefore a valid bigamous marriage prior to the filing of the
sworn statement of reappearance
If re-apperaing spouse or any interested party does not make any sworn statement of reappearance
o Subsequent marriage remains validly subsisting
! Law shall continue to protect the second marriage rather than the first because
reappearing spouse did not assert his or her rights
!
o First marriage is likewise subsisting because it was not nullified nor annulled
! statutory requirement of the filing of a sowrn statement of reappearance also
serves as the best evidence to show that the State is also prepared to return the
preference to the first marriage and consider it as the only marriage allowable
under the circumstances if even one of the parties or any interested person so
desires
filing of an affidavit of reappearance serves as the legal and speedy process through which the
maintenance of an ordered and harmonious family relationship can be achieved.
failure to file affidavit of reappearance will cause confusion and has deleterious effects
o reappearing spouse cannot enter into a contract of marriage with another person.
! because he or she is still married to the present spouse.
! no choice but to file a nullity or annulment case against the present spouse if
there are valid grounds to do so
! If he or she remarries without obtaining a nullity or annulment decree, such
subsequent marriage is either bigamous or violative of Articles 40, 52 and 53
and therefore void.
o Subsequent new spouse may file a case for legal separation based on sexual infidelity
against the present spouse

CRIMINAL LIABILITY.
penalty of prision mayor upon any person who shall contract a second or subsequent marriage
o before former marriage has been legally dissolved, or
o before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceeding.

REPUBLIC V. NOLASCO
Filipino seaman wanted to get a judicial declaration of presumptive death from the court relative to his
missing English spouse. The Supreme Court ruled that the Filipino seaman failed to conduct a search for
the missing wife with such diligence to give rise to a well-founded belief that she was dead.
The investigation allegedly conducted by respondent in his attempt to ascertain Janet Monica Parkers
whereabouts is too sketchy to form basis of a reasonable or well-founded belief that she was already dead.
When he arrived in San Jose, Antique after learning of Janet Monicas departure, instead of seeking the
help of local authorities or of the British Embassy, he secured another seamans contract and went to
London, a vast city of many millions of inhabitants, to look for her there. Respondents testimony, however
showed that he confused London for Liverpool and this casts doubt on his supposed efforts to locate his
wife in England. There is no analogy between Manila and its neighboring cities, on the one hand, and
London and Liverpool, on the other, which, as pointed out by the Solicitor General, are around three
hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or
London with a simple hope of somehow bumping into one particular person there which is in effect
what Nolasco says he did can be regarded as a reasonably diligent search.
The Court also views respondents claim that Janet Monica declined to give any information as to her
personal background even after she had married the respondent too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his wife
which respondent claims were all returned to him. Respondent said he had lost these returned letters, under
unspecified circumstances.
Neither can this Court give much credence to respondents bare assertion that he had inquired from their
friends of her whereabouts, considering that respondent did not identify those friends in his testimony.
Moreover, even if admitted as evidence, said testimony merely tended to show that the missing spouse had
chosen not to communicate with their common acquaintances and not that she was dead.
Respondent testified that immediately after receiving his mothers letter sometime in January 1983, he cut
short his employment contract to return to San Jose, Antique. However, he did not explain the delay of nine
(9) months from January 1983, when he allegedly asked leave from his captain, to November 1983 when he
finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker without inquiring
about her parents and their place of residence. Also, respondent failed to explain why he did not even try to
get help of the police or other authorities in London and Liverpool in his effort to find his wife. The
circumstances of Janet Monicas departure and respondents subsequent behaviour make it very difficult to
regard the claimed belief that Janet Monica was dead a well-founded one.
Since respondent failed to satisfy the clear requirements of the law, his petition for judicial declaration of
presumptive death must be denied.

ARTICLE 41 THEREOF COMPARED TO ARTICLE 83 OF THE CIVIL CODE. When Article 41 is
compare with the old provision of the Civil Code, which it superseded, the following crucial differences
emerge. Under Article 41, the time required for the presumption to arise has been shortened to four (4)
years; however, there is need for a judicial declaration of presumptive death to enable the spouse present to
remarry. Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of
the Civil Code merely requires either that there be no news that such absentee is still alive; or the absentee
is generally considered to be dead and believed to be so by the spouse present, or is presumed dead under
Article 390 and 391 of the Civil Code. The Family Code, upon the other hand, prescribes a "well founded
belief " that the absentee is already dead before a petition for declaration of presumptive death can be
granted.

DECLARATION OF PRESUMPTIVE DEATH; REQUISITES. (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code: "1. That the absent spouse has been missing for
four consecutive years, or two consecutive years if the disappearance occurred where there is danger of
death under the circumstances laid down in Article 391, Civil Code; 2. That the present spouse wishes to
remarry; 3. That the present spouse has a well-founded belief that the absentee is dead; and 4. That the
present spouse files a summary proceeding for the declaration of presumptive death of the absentee."

DEGREE OF DILIGENCE REQUIRED IN SEARCHING FOR MISSING SPOUSE; CASE AT BAR.
In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his
attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable or
well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of Janet
Monica's departure, instead of seeking the help of local authorities or of the British Embassy, he secured
another seaman's contract and went to London, a vast city of many millions of inhabitants, to look for her
there. Respondent testified that immediately after receiving his mother's letter sometime in January 1983,
he cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay
of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November 1983
when he finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker without
inquiring about her parents and their place of residence. Also, respondent failed to explain why he did not
even try to get the help of the police or other authorities in London and Liverpool in his effort to find his
wife. The circumstances of Janet Monica's departure and respondent's subsequent behaviour make it very
difficult to regard the claimed belief that Janet Monica was dead a well-founded one.

MARRIAGE; NATURE, CONSEQUENCES AND INCIDENTS THEREOF GOVERNED BY LAW
AND NOT SUBJECT TO STIPULATIONS; EXCEPTION; PUBLIC POLICY INVOLVED OF THE
MOST FUNDAMENTAL KIND. In Goitia v. Campos-Rueda, the Court stressed that: ". . . Marriage is
an institution, the maintenance of which in its purity the public is deeply interested. It is a relationship for
life and the parties cannot terminate it at any shorter period by virtue of any contract they make . . ." By the
same token, the spouses should not be allowed, by the simple expedient of agreeing that one of them leave
the conjugal abode and never to return again, to circumvent the policy of the laws on marriage. The Court
notes that respondent even tried to have his marriage annulled before the trial court in the same proceeding.
In In Re Szatraw, the Court warned against such collusion between the parties when they find it impossible
to dissolve the marital bonds through existing legal means. While the Court understands the need of
respondent's young son, Gerry Nolasco, for maternal care, still the requirements of the law must prevail.
Since respondent failed to satisfy the clear requirements of the law, his petition for a judicial declaration or
presumptive death must be denied. The law does not view marriage like an ordinary contract. Article 1 of
the Family Code emphasizes that. ". . . Marriage is a special contract of permanent union between a man
and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the property
relations during the marriage within the limits provided by this Code." In Arroyo, Jr. v. Court of Appeals,
the Court stressed strongly the need to protect. ". . . the basic social institutions of marriage and the family
in the preservation of which the State has the strongest interest; the public policy here involved is of the
most fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following basic
state policy: 'The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution . . . The same sentiment has been expressed in the Family Code of the
Philippines in Article 149: 'The family, being the foundation of the nation, is a basic social institution
which public policy cherishes and protects. Consequently, family relations are governed by law and no
custom, practice or agreement destructive of the family shall be recognized or given effect.' "


LUKBAN V. REPUBLIC
1.PRESUMPTION OF DEATH, "JURIS TANTUM" ONLY; CANNOT BE SUBJECT OF JUDICIAL
PRONOUNCEMENT. 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 proceeding much less can the court determine the status of petitioner 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).

2.ID.; ID.; PHILOSOPHY BEHIND THE RULING. The philosophy behind this ruling is that "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." (Nicolai Szartraw, supra).

3.SPECIAL PROCEEDING DEFINED; WHEN CAN REMEDY BE INVOKED. While it is true that a
special proceeding is "an application or proceeding to establish the status or right of a party, or a particular
fact", 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.

ARMAS V CALISTERIO
On 24 April 1992, Teodorico Calisterio died intestate leaving several parcels of land with an estimated
value of P604,750.00. Teodorico was survived by his wife Marietta Calisterio and his sister Antonia C.
Armas. On 09 October 1992, Antonia filed with the Regional Trial Court, Branch 104 of Quezon City a
petition for settlement of the Intestate Estate of Teodorico. She claimed, among others, that she is the sole
surviving heir of Teodorico for the reason that the marriage of Teodorico with Marietta was null and void
being bigamous in nature. She also prayed that her son Sinfroniano C. Armas, Jr., be appointed as
administrator. Marietta opposed the petition. She claimed that her first marriage with James Bounds had
been dissolved due to the latter's absence since 11 February 1947, his whereabouts being unknown to her
for more than eleven years before she contracted her second marriage with Teodorico on 08 May 1958.
Hence, being the surviving spouse of Teodorico, she sought priority in the administration of the estate of
the decedent. After trial, the court a quo ruled in favor of Antonia declaring her as sole heir of Teodorico.
On appeal, the Court of Appeals reversed and set aside the decision of the lower court and ruled, among
others, that Marietta Calisterio is entitled to one-half of her husband's estate and Antonia Armas and her
children are entitled to the other half. Hence, this petition.

It remained undisputed that respondent Marietta's first husband, James William Bounds, had been absent or
had disappeared for more than eleven years before she entered into a second marriage in 1958 with the
deceased Teodorico Calisterio. This second marriage, having been contracted during the regime of the Civil
Code, should thus be deemed valid notwithstanding the absence of a judicial declaration of presumptive
death of James Bounds. The conjugal property of Teodorico and Marietta, no evidence having been
adduced to indicate another property regime between the spouses, pertains to them in common. Upon its
dissolution with the death of Teodorico, the property should rightly be divided in two equal portions one
portion going to the surviving spouse and the other portion to the estate of the deceased spouse. The
successional right in intestacy of a surviving spouse over the net estate of the deceased concurring with
legitimate brothers and sisters or nephews and nieces (the latter by right of representation), is one-half of
the inheritance, the brothers and sisters or nephews and nieces, being entitled to the other half. AHCaED


MARRIAGES; VESTED RIGHTS IN ACCORDANCE THEREWITH ARE NOT IMPAIRED BY THE
FAMILY CODE. The marriage between the deceased Teodorico and respondent Marietta was
solemnized on 08 May 1958. The law in force at that time was the Civil Code, not the Family Code which
took effect only on 03 August 1988. Article 256 of the Family Code itself limited its retroactive governance
only to cases where it thereby would not prejudice or impair vested or acquired rights in accordance with
the Civil Code or other laws.

BIGAMOUS MARRIAGE; ILLEGAL AND VOID FROM ITS PERFORMANCE; EXCEPTIONS.
"Art. 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." Under
the foregoing provisions, a subsequent marriage contracted during the lifetime of the first spouse is illegal
and void ab initio unless the prior marriage is first annulled or dissolved. Paragraph (2) of the law gives
exceptions from the rule.

FORMER SPOUSE DECLARED PRESUMPTIVELY DEAD; SPOUSE CONTRACTING SECOND
MARRIAGE MUST BE IN GOOD FAITH. For the subsequent marriage referred to in the three
exceptional cases therein provided, to be held valid, the spouse present (not the absentee spouse) so
contracting the later marriage must have done so in good faith. Bad faith imports a dishonest purpose or
some moral obliquity and conscious doing of wrong it partakes of the nature of fraud, a breach of a
known duty through some motive of interest or ill will.

JUDICIAL DECLARATION OF ABSENCE OF THE ABSENTEE SPOUSE IS NOT NECESSARY.
A judicial declaration of absence of the absentee spouse is not necessary as long as the prescribed period of
absence is met. It is equally noteworthy that the marriage in these exceptional cases are, by the explicit
mandate of Article 83, to be deemed valid "until declared null and void by a competent court." It follows
that the burden of proof would be, in these cases, on the party assailing the second marriage.

CASE AT BAR. It remained undisputed that respondent Marietta's first husband, James William
Bounds, had been absent or had disappeared for more than eleven years before she entered into a second
marriage in 1958 with the deceased Teodorico Calisterio. This second marriage, having been contracted
during the regime of the Civil Code, should thus be deemed valid notwithstanding the absence of a judicial
declaration of presumptive death of James Bounds.

SUBSEQUENT BIGAMOUS MARRIAGE CONSIDERED VALID; REQUISITES. Under the 1988
Family Code, in order that a subsequent bigamous marriage may exceptionally be considered valid the
following conditions must concur; viz.: (a) The prior spouse of the contracting party must have been absent
for four consecutive years, or two years where there is danger of death under the circumstances stated in
Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a well-founded belief
that the absent spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration of
presumptive death of the absentee for which purpose the spouse present can institute a summary proceeding
in court to ask for that declaration. The last condition is consistent and in consonance with the requirement
of judicial intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the
Family Code.

Article 43. The termination of the subsequent marriage referred to in the preceding Article shall produce
the following effects:
The children of the subsequent marriage conceived prior to its termination shall be considered
legitimate and their custody and support in case of dispute shall be decided by the court in a
proper proceeding;
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;
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;
The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a
beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and
The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from
the innocent spouse by testate and intestate succession.

Article 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the
other are revoked by operation of law.


STATUS OF CHILDREN.
children conceived during subsequent marriage in cases of presumptive death of one of the spouses
and before termination of the subsequent marriage " considered legitimate
o because children were conceived either inside a valid bigamous marriage or
o inside a valid marriage despite the non-observance of Articles 40, 52 and 53.
o even if one of the contracting parties is in bad faith.
! subsequent marriage in cases of presumptive death can only be considered void
if both spouses were in bad faith in contracting subsequent marriage
! If only one is in bad faith " valid

EFFECT OF TERMINATION OF SUBSEQUENT MARRIAGE ON THE PROPERTY REGIME.
General Rule : property regime shall be dissolved and liquidated
o payment of all debts and obligations of absolute community or conjugal partnership
o spouses shall divide property equally or in accordance with sharing in a valid marriage
settlement
! unless there has been a voluntary waiver of share by either upon the judicial
separation of the property.
If either of the spouses acted in bad faith
o guilty spouse shall not get share in net profits of property regime
o forfeited in favor of the common children.
o if no common children children by a previous marriage of the guilty spouse
o absence of common children and children by a previous marriage of guilty party,
forfeited in favor of innocent spouse.
net profits subject to forfeiture,
o market value of the community property at the time of the celebration of marriage
LESS market value at the time of its dissolution

DONATIONS BY REASON OF MARRIAGE.
essentially gratuitous
both parties are in good faith donation by reason of marriage shall be valid
o even in the event that the subsequent marriage has been terminated.
o even if the donor acted in bad faith in contracting marriage.
donee acted in bad faith in contracting the marriage,
o donation by reason of marriage ipso jure is terminated by operation of law.
Both acted in bad faith
o ipso jure terminated
o marriage is void in accordance with Article 44
! therefore, principal consideration for such donation does not exist.
o may be argued however that since the fault is on the part of both contracting parties,
neither may recover what he has given
! This view should not apply considering the express mandate of Article 44 and
! marriage is a special contract vested with public interest
! doctrine of estoppel on both parties will not apply considering that such
doctrine is not applicable if public policy is violated.
ex. of bad faith
o if the present spouse, after obtaining judicial declaration of presumptive death and
before celebration of the subsequent marriage, is able to talk to the reappearing spouse,
thereby knowing that he or she is alive,
o If the other contracting party of the subsequent marriage is likewise in bad faith, the
subsequent marriage will be void
o any donation propter nuptias of the present spouse who is in bad faith in favor of the
other contracting party who is also in bad faith will surely prejudice the reappearing
spouse as he or she is a presumptive heir of the present spouse.
o technically speaking, since the subsequent marriage is void, the present spouse who
has subsequently married may even be considered as committing an act of adultery or
concubinage.
o Under Article 739 of the Civil Code, a donation made between persons who are guilty
of adultery or concubinage at the time of the donation is void.
Article 44, however, provides that, where both parties are in bad faith, testamentary dispositions
made by one in favor of the other are revoked by operation of law.

DESIGNATION AS BENEFICIARY IN INSURANCE POLICY.
innocent spouse has choice of revoking or maintaining as beneficiary in an insurance policy the
other spouse who acted in bad faith.
can revoke even if the designation as beneficiary is irrevocable

DISQUALIFICATION AS TO INHERITANCE.
spouse who contracted subsequent marriage in bad faith disqualified to inherit from the innocent
spouse by testate and intestate succession.
disqualification is by a voluntary act done in bad faith.
subparagraph (4) will apply even if the parties are mutual heirs of each other but the innocent spouse
can still succeed
both parties in the subsequent marriage are in bad faith,
o marriage is void
o testamentary dispositions made by one in favor of the other are revoked by operation
of law.
o contracting parties cannot inherit by intestate succession because no legal relation
binds them.

SUBSEQUENT MARRIAGE UNDER ARTICLE 41 CONTRACTED IN BAD FAITH.
If only one of the parties (present spouse or the new spouse) was in bad faith " still valid.
o ex. of bad faith in contracting subsequent marriage prior to subsequent marriage,
would be spouse personally saw absentee spouse.
If both spouses in the subsequent marriage are in bad faith " Void
o ex. if both the would be spouse and the present spouse personally know that absent
spouse is alive prior to issuance of and judicial declaration of presumptive death.
good faith must be present up to time of celebration of subsequent marriage
o must not be in bad faith until time of solemnization of subsequent marriage
o after issuance of judicial declaration of presumptive death and before celebration of
subsequent marriage, one of the parties personally sees and talks to supposedly absent
spouse judicially presumed to be dead" already in bad faith in contracting the
subsequent marriage.
! if that spouse still contracts subsequent marriage " valid
! if other contracting party is also in bad faith " void

Article 45. A marriage may be annulled for any of the following causes, existing at the time of the
marriage:
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;
That either party was of unsound mind, unless such party after coming to reason, freely cohabited
with the other as husband and wife;
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;
See 46
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;
That either party was physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
That either party was afflicted with a sexually transmissible disease found to be serious and appears
to be incurable.

Article 46. Any of the following circumstances shall constitute fraud referred to in Number 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;) of the preceding Article:
Non-disclosure of a previous conviction by final judgment of the other party of a crime involving
moral turpitude;
Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man
other than her husband;
Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the
marriage; or
Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the
time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage.

PUBLIC POLICY CONSIDERATION.
state is interested in permanence and maintenance of marriage
reservation of marriage is deemed essential to public welfare and public interest
fundamental policy of state
o regards marriage as indissoluble and sacred
o foundation upon which society rests
o cautious and strict in granting annulment of marriage.
relation for life
parties cannot terminate it at any shorter period by virtue of any contract
o reciprocal rights arising from relation are determined by law so long as marriage
continues
o legal existence of parties is merged into one
o new relation is regulated and controlled by the state upon principles of public policy
for the benefit of society as well as the parties
o when object of a marriage is defeated, relief in some way should be obtainable
! by rendering continuance intolerable to one of the parties
! and productive of no possible good to the community
law favors marriage and therefore allows dissolution only under restrictions and limitations provided
by law as may deem best for public welfare
in order to annul a marriage, clear and undeniable proofs are necessary
instituted for good of society
marital relation is foundation of all forms of government
state has an interest in every divorce suit,
marital relation, once established, continues until the marriage is dissolved on some grounds
prescribed by the statute

EXCLUSIVITY OF GROUNDS FOR ANNULMENT.
Annullable marriage is same as a voidable marriage
Difference from void marriage
o Valid until terminated
o Grounds for annulment are exclusive
! Only those specified by law
! Any ground not provided by law cannot be invoked to annul a marriage
! Exclusivity of grounds is in line with policy of state to enhance permanence of
marriage.
! State discourages and denies annulment unless claimed on proper grounds and
sustained by an honest disclosure of facts
! cannot be left to the whims of the spouses,
state has serious concern and interest over maintenance of marriage and
family unit brought about by the same.
mere non-cohabitation is not a ground for annulment of marriage

1. NO PARENTAL CONSENT
18 years and below 21 years " must obtain parental consent
o no degree of maturity to comprehend consequences and serious responsibilities of
marital relations
marriage contracted without parental consent" annullable
o at instance of party whose parent or guardian did not give his or her consent
o or the person having parental authority over the party
based upon common experience and logic
o so probability of a troublesome, ill- marriage due to unpreparedness of contracting
parties financially, emotionally and psychologically can be terminated or prevented
o so that one in the sunlight of youth, standing on threshold of life, should not walk
precipitously into marriage chamber but first should look with calm deliberation whether
both desirable and safe.
o ample support in aphorism and precept.

2. UNSOUND MIND.
derangement of mind which prevents comprehension of
o nature of contract and
o from giving free and intelligent consent.
must relate specifically to contract of marriage
must render afflicted party incapable of understanding or assenting to marriage contract
mentally incapable of giving an intelligent consent to what is done, with an understanding of the
obligations assumed " mere idle ceremony
o valid marriage- must be capable of entering understandingly intot he relation
Not invalidated by
o
mere weakness of mind or

o
dullness of intellect,

o
by eccentricities or

o
partial dementia


no definite rule by which mental condition as to sanity or insanity can be tested


question is not brain quality or quality in abstract

o
wno the mind could and did act rationally regarding the marriage.

o
wno it proceeded from a mind sane as respects to the

Annulment will be denied if plaintiff does not satisfy the burden of proving, clearly and definitely
that the defendant was insane at time of marriage meaning:
o Incapable of understanding the nature of the act
o Insufficient mental capacity to enter into the status and understand the nature, effect,
duties and obligations of the marriage contract
o Mentally incapable of giving an intelligent, understanding consent or
o that her mind could, would and did not act rationally regarding the marriage.


BURDEN OF PROOF OF INSANITY.
General Rule
o rests upon the person who alleges insanity, or the person who seeks to avoid an act on
account of insanity
o must establish fact of insanity by a preponderance of evidence.
Exception
o If a previous state of insanity is proved, burden of proof shifts to the one who asserts
that the act was done while person was sane
o But insanity not shown to be settled will not be presumed to continue until contrary is
shown.
o lucid interval is in its nature temporary and uncertain in its duration
! no legal presumption of its continuance.

3. FRAUD.
non-disclosure or concealment of certain circumstances which materially affect the essence of
marriage
no fraud when there is no concealment
no fraud when there is disclosure or there is disclosure.
Circumstances of fraud are exclusive under article 46 because the last paragraph specifically states
that No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall
constitute fraud
o Reason: mere accidental matters which do not go into the essence of the marriage and
do not affect the free consent of the injured party
! Duty of parties to inform themselves of such matters before entering into the
marriage
o any act of fraud not in Article 46 cannot annul a marriage
o example of fraud which are not grounds for annulment " Non-disclosure of a
husbands pre-marital relationship with another woman

3.a. NON-DISCLOSURE OF PREVIOUS CONVICTION AS FRAUD.
must have been convicted by final judgment of a crime involving moral turpitude
o Turpitude inherent baseness, vileness or depravity in private and social duties which
one owes to his fellow men or society
o everything which is contrary to justice, honesty, or good morals
o ex. Homicide.
Burden is on convicted party to reveal criminal record
Failure of convicted party failure to do so will constitute non-disclosure.
Not necessary that one of the parties investigates to determine criminal record
o Failure to investigate will not bar a case for annulment if it later develops
Ex. Marriage of school girl to ex convict who at time of marriage committed a crime for which he is
subject to indictment when marriage was brought about his false representations as to his standing
in society

3.b CONCEALMENT OF PREGNANCY AS FRAUD.
limited to the wife only
o if wife is pregnant by another man, husband would be misled in devoting all attention
and care on somebody elses child
o compared to pregnancy, fact of husbands having a child in a concealed prior
relationship is speculative and difficult to prove
maternity is always certain while paternity may be disputed
concealment must have been done in bad faith
o A has sexual intercourse with B. Diagnosed as not pregnant because she was barren.
She then marries C believing that she was not pregnant with B. Turns out that she was
pregnant with B at the time of her marriage ceremony with C.. " Not annullable even if
it turned out that previous diagnosis was completely wrong because there was no bad
faith on her party. Not guilty of concealment.
Mere pregnancy alone at time of the marriage is not sufficient. Wife must conceal the pregnancy.
But if woman does not expressly inform the man of pregnancy but such physical condition was
readily apparent to the man, he cannot claim lack of knowledge of such pregnancy
Mere fact that the woman at the time of the marriage is four months pregnant cannot be conclusive
as to apparency of such pregnancy so as to bar the man from invoking this particular ground
o According to medical authorities, even on 5th month of pregnancy, the enlargement of
a womans abdomen is still below the umbilicus
o enlargement is limited to the lower part of the abdomen so that it is hardly noticeable
o only on the 6th month of pregnancy that the enlargement of the womans abdomen
reaches the height above the umbilicus, making the roundness of the abdomen more
general and apparent
If woman misrepresents to her fianc that she was pregnant for purpose of inducing her fianc to
marry her when in fact she was not pregnant " Not annullable
o such inducement cannot annul the marriage under Article 46(2) because there was no
pregnancy to conceal
Atty. Sta Maria says that fraud should also be imputed on husband who did not disclose at time of
marriage that he impregnanted another woman because 46(2) is discriminatory against women.


3.c. CONCEALMENT OF SEXUALLY-TRANSMISSIBLE DISEASE, REGARDLESS OF NATURE,
AS FRAUD.
nature or gravity is irrelevant
enough that there was concealment of Sexually Transmissible Disease (STD) at time of marriage to
warrant annulment of such a marriage on the ground of fraud
reason is that at the time of the marriage, defendant was incapable of meeting obligations and
performing functions of marital relation
o morally and physically unfit
includes danger of transmission and heredity that even science cannot fathom or certainly define
suppression of the presence of a disease including the dire and disastrous possibilities, directly
affecting the marital relation, constitute fraud which clearly entitles innocent party to a decree of
annulment particularly when it has not been consummated
consummation is not required

3.d. CONCEALMENT OF DRUG ADDICTION AND HABITUAL ALCOHOLISM AS FRAUD.
Habitual alcoholism - habitual drunkenness and habitual intemperance
o terms are not susceptible to an exact meaning
o nature and extent of the drunkenness must be such that the person by frequent
indulgence may be said to have a fixed and irresistible habit of drunkenness
! lost power or will to control his appetite for intoxicating
! indulges in the practice of becoming intoxicated whenever the temptation is
presented and the opportunity offered
o fixed habit of frequently getting drunk or unable to resist opportunity and temptation
presented
o indulges in practice of becoming intoxicated whenever the temptation is presented,
and the opportunity is afforded him
o drinks to excess so frequently as to become a fixed practice or habit with him
o A man may drink once in awhile to the excess and yet not be habitual drunkard
o Can be alcoholic even in there are intervals when he entirely refrains from alcohol
! not necessary that he be constantly or universally drunk,
! not necessary that he have more drunken than sober hours
! does not have to be constantly under the influence of alcohol
o reasons
! Disqualifies party from attending to
! Renders him unfit for duties of the marital relation
! Disqualifies him from properly rearing and caring for the children born of the
marriage
Concealment of drug addiction
o deleterious and evil effects resulting from continued and excessive use of drugs
o interferes with happiness of married life

3. e. CONCEALMENT OF HOMOSEXUALITY OR LESBIANISM AS FRAUD.
marriage is based on trust and difference of sexes both in the physical and psychological constitution
of the parties
lesbian or a homosexual
o disposed to have affection toward the same sex to extent that having relations with the
other sex to him or her is repugnant to his or her being
Reason - may not serve purpose of law mandating a heterosexual relationship.
questions of sexual identity are concerned with one of the basic elements of marriage " exclusive
sexual bond between the spouses
ground is not homosexuality or lesbianism per se
o but the concealment of such sexual orientation.
element of bad faith on part of the one making the concealment is essential and must be duly
proven. (
not afflictions or diseases
sexual orientation or preference
not intrinsically abhorrent
subject to ratification
o indicates that parties could eventually accept each other and lead a family life of their
own with children.
In the US, concealment of homosexuality is considered as basis for divorce within the purview of
the statutory ground of cruelty to other spouse
o such behavior endangers life or health of the aggrieved party
o renders his or her life one of such extreme discomfort as to incapacitate him or her
physically from discharging the marital duties

4. VITIATED CONSENT.
Essential consent of valid marriage " consent freely given
o must not be obtained by force, intimidation or undue influence.
Not necessary that the person would be unable to resist
Violence constituting duress may be physical or moral
o coercion of the person may continue until moment of celebration of marriage or
o coercion of will by antecedent threats of bodily harm
! person is forced to elect between consenting to marry and exposure to
threatened evils.
Intimidation - 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
o degree is determined by the age, sex and condition of the person
o to nullify a marriage, must have do with the evil or harm arising from an unlawful act,
not a threat from a legal right.
! threat to enforce ones claim through competent authority or legal right does not
vitiate consent.
! ex. threat to prosecute a person for a crime he has committed .
! A had previous knowledge of B. A married B under threat to oppose admission
to the practice of law for immorality if A did not marry B. " Not annullable
because under existing, a man with bad moral character should not be admitted
to the bar.
However, if the charge of immorality subject of the threat was false
marriage can be annulled.
proven by preponderance of evidence
o may include the actuations of parties previous to marriage
o ex. Annulment wont be granted if petitioner previously executed an affidavit stating
that he lived with respondent as husband and wife as common law partners.
o Ex. 2. When petitioner claims that his consent to marriage was vitiated only a year
after solemnization of 2
nd
marriage.
o Prolonged inaction to file annulment case.
o Apprehension of danger was not overwhelming as to deprive him of will to voluntarily
marry " never sought the assistance of the security personnel of his school nor the police
regarding the activities of those who were threatening him and neither did he inform the
judge about his predicament prior to solemnizing their marriage.


5. INCAPACITY TO CONSUMMATE.
permanent and incurable incapacity of one of the spouses to perform the complete act of sexual
intercourse
may be on the part of the husband or of the wife
may be caused by a physical or structural defect in the anatomy
may be due to chronic illness and inhibitions or fears arising in whole or in part from
psychophysical conditions.
may also be caused by psychogenic causes
o mental block or disturbance resulting in making the spouse physically incapable
o excessive sensibility, if medically and sufficiently proven on the part of the wife,
rendering sexual intercourse practically impossible on account of the pain it must inflict,
may be sufficient to show incapacity
o vaginismus
! incurable nervous disorder on the part of the wife
! renders sexual coition impossible is good proof of inability to perform the
marital act
Not sufficient to show incapacity
o Epilepsy
o Mere refusal without being physically incapable " capable of erection but
psychologically inhibited in engaging sexual intercourse
Must exist at time of marriage ceremony
o Marriage cannot be annulled if wife became physically incapacitated from
consummating marriage due to paralyzation after an accident which occurred after the
marriage " incapability did not exist at time of marriage ceremony
Must be continuous and appears to be incurable
o Accidental, temporary or occassional impotency is not enough due to public policy.
o Ex. Of curable, thus not annullable - firmness and rigidity of the hymen of the wife
which can be broken by simple surgical procedure,

BURDEN OF PROOF IN CASES OF INCAPACITY TO CONSUMMATE.
Whoever alleges incapacity has the burden of proving the same.
general rule " incapacity to engage in sexual intercourse cannot be presumed but must be proven
by preponderance of evidence.
o Impotency, being an abnormal condition, should not be presumed.
o presumption is in favor of potency
incapacity or impotence need not be universal
o when impotence is psychological in origin, condition may exist only as to the present
spouse and not as to others
o relative or selective nature of incapacity to consummate as ground for annulment is
recognized
o physical incapability of consummating must only be with the other spouse and not
with all persons.

RULE OF TRIENNIAL COHABITATION; EXCEPTION TO PRESUMPTION OF POTENCY
presumption of impotence arises if wife remains a virgin for at least 3 years from the time the
spouses started cohabiting
in this case, husband must show that he was not impotent during said period
burden will be upon him to overcome the presumption of impotence


STERILITY IS NOT IMPOTENCY
sterile person can successfully engage in sexual coition
o does not imply want of power for copulation.
sterility is not a ground for annulment
ex. Removal of ovaries- resulting to inability to bear children No annulment granted.


6. SEXUALLY TRANSMISSIBLE DISEASE CONCEALED AT TIME OF MARRIAGE CEREMONY.
If not incurable, must be concealed to be annullable.
If STD is not concealed, must be serious and incurable to be annullable.
o Ex. chronic syphilis was really grave and in an incurable diseased state at the time of
the marriage ceremony which can justify the annulment of the marriage - 2 months after
marriage ceremony, husband contracted syphilis from wife who had STD at time of
marriage ceremony. Syphilis temporarily regressed for a time and constantly recurred.
Their child died due to mass syphilitic sores from the wife. Sexual intercourse was no
longer healthy and safe.
If venereal disease obtained after marriage ceremony " Not a ground for annulment
o However, the sexual infidelity can be a ground for legal separation because the disease
is usually communicated thru sexual contact


RATIFICATION OF ANNULLABLE MARRIAGES.
policy of the state is to enhance and promote permanence of marriage
o preserve the marriage
o uphold family as an integral unit of society
ratification
o made if injured party freely cohabits with guilty party in the proper situations
provided by law
o circumstances which show that parties subsequently manifested their approval of the
marital union despite the defects, a decree of annulment will not be issued.
following situations will defeat any petition for annulment
no parental consent for
18-21
Free cohabitation after reaching the age of 21
- but if party was 18-21, even if party freely cohabited, this is not ratification
Insanity - if the contracting party with unsound mind, after coming to reason, freely
cohabited with the other as husband and wife
-only insane spouse can ratify
- subsequent free cohabitation of sane spouse who had no knowledge of
insanity at time of marriage but later found out of such insanity" not
ratification, can still file annulment
Fraud injured party, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife
Vitiated consent injured party, after the disappearance or cessation of the force, intimidation or
undue influence, freely cohabited with the other as husband and wife
Incurable physical
incapacity to consummate
or affliction of either
party of incurable STD
existing at time of
marriage
-mere free cohabitation will not ratify
- injured party may still file case for annulment
- reason is that the grounds are not based on defenctive consent but based on
impotency or disease which is incurable
- negates procreation of normal and healthy children
- however, parties must bring the suit within 5 years after the marriage
ceremony, or else the action for annulment shall be barred.