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Primer on Void and Voidable Marriages

The complete provisions of the Family Code on void and voidable marriages are Articles 35 up to 54.

What marriages are void from the beginning?
Article 35 of the Family Code provides that the following marriages are void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or
(2) Those solemnized by any person not legally authorized to perform marriages unless the 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 under the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.

What is the famous Article 36 of the Family Code?

Article 36 states that 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.

What is psychological incapacity?
The Family Code does not define what psychological incapacity is. But the Supreme Court in several
decisions has clarified what psychological incapacity is. In the case of Santos vs. Court of Appeals, the
Supreme Court stated:

"Psychological incapacity under Article 36 of the Family Code is not meant to comprehend all possible
cases of psychoses. It should refer, rather, to no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage. Psychological incapacity must be characterized by

(a) gravity,
(b) juridical antecedence, and
(c) incurability.

What marriages are considered incestuous and thus void?
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.

What marriages are void by reasons of public policy?
The following marriages are 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 party, killed his own wife or her
own husband, or the other person's spouse.

The Family Code prohibits marriage between collateral blood relatives whether legitimate or illegitimate,
up to the fourth civil degree.

What does fourth civil degree mean?

For example, Boy and Girl are first cousins:
Boys father is A. Girls mother is B. A and B are brother and sister. From Boy to his father A, one civil
degree. From A to his parents (Boys grandparents), two civil degrees. From the parents down to B, three.
From B to Girl, four civil degrees.
Boy and Girl therefore cannot get married since they are related within four civil degrees.

Who are people related by four civil degrees (and are therefore prohibited from getting married)?
First cousins (as in the example I gave above) are related by four civil degrees. An uncle and a niece (or an
aunt and a nephew) are also within four civil degrees.

Can persons who find out that their marriage is bigamous simply declare by themselves that the
marriage is void?
No, they cannot. They must file a petition asking the court to declare the marriage as void. (Article 40)

If the husband or wife has been missing for several years and could not be located despite earnest and
diligent efforts, can the present spouse get married again?
Article 41 provides that a marriage contracted by any person during subsistence of a previous marriage is
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

In case of disappearance where there is danger of death under the circumstances stated in Article 391 of
the Civil Code, an absence of only two years is sufficient.

What step must the present spouse take to get married again?
For the purpose of contracting the subsequent marriage under Article 41, the spouse present must file a
summary proceeding for the declaration of presumptive death of the absentee.

What happens if the spouse declared presumptively dead reappears later on?
The subsequent marriage is 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

A sworn statement of the fact and circumstances of reappearance must be recorded in the civil registry of
the residence of the parties to the subsequent marriage at the instance of any interested person; due
notice must be given to the spouses of the subsequent marriage. The fact of reappearance can be
disputed in court.

What are the effects if the subsequent marriage is terminated?
Article 43 provides that the termination of the subsequent marriage produces the following effects:
(1) The children of the subsequent marriage conceived before its termination are legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be, will be dissolved
and liquidated, but if either or both spouses contracted marriage in bad faith, their share of the net
profits of the community property or conjugal partnership property will 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 will remain valid, except that if the donee contracted the marriage in
bad faith, the donations will be 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 the designation is stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the
innocent spouse by testate and intestate succession.
What are the reasons for annulling a marriage?

Republic of the Philippines vs. Liberty Albios, G.R. No. 198780, October 16, 2013

Is a marriage, entered into for the sole purpose of acquiring American citizenship in exchange for $2,000,
void on the ground of lack of consent?

Background facts:
Liberty Albios asked Daniel Lee Fringer to marry her so that she can acquire American citizenship. In
return, Albios promised to give Fringer $2,000. After the wedding, they went their separate ways. Fringer
returned to the United States and never again communicated with Albios. In turn, Albios did not pay
Fringer the $2,000 because he never processed her petition for citizenship.

Regional Trial Court rules that Albios and Fringers marriage is void for lack of consent

Albios filed with the Regional Trial Court a petition for declaration of nullity of her marriage with Fringer.
She described their marriage as made in jest and, therefore, null and void ab initio (from the start). The
RTC ruled that the essential requisite of consent was lacking and that when marriage was entered into for
a purpose other than the establishment of a conjugal and family life, the marriage was a farce.

Court of Appeals affirms RTC ruling
The Court of Appeals affirmed the RTC ruling that the essential requisite of consent was lacking. The CA
stated that Albios and Fringer clearly did not understand the nature and consequence of getting married
and that their case was similar to a marriage in jest. It further explained that Albios and Fringer never
intended to enter into the marriage contract and never intended to live as husband and wife or build a
family. It concluded that their purpose was primarily for personal gain, that is, for Albios to obtain foreign
citizenship, and for Fringer, the consideration of $2,000.

Supreme Court rules that the marriage is valid
Albios and Fringer's marriage is not void ab initio (from the start) and continues to be valid and subsisting.

Consent was not lacking between Albios and Fringer. Their consent was conscious and intelligent as they
understood the nature and the beneficial and inconvenient consequences of their marriage. Their consent
was freely given as best evidenced by their conscious purpose of acquiring American citizenship through
marriage. Such plainly demonstrates that they willingly and deliberately contracted the marriage.

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on
the kind of life that a couple chooses to lead. Thus, marriages entered into for other purposes, limited or
otherwise, such as convenience, companionship, money, status, and title, provided that they comply with
all the legal requisites, are equally valid. Love, though the ideal consideration in a marriage contract, is not
the only valid cause for marriage. Other considerations, not precluded by law, may validly support a

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with
Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot
declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they
have availed of its benefits, or simply have no further use for it. These unscrupulous individuals cannot be
allowed to use the courts as instruments in their fraudulent schemes. Albios already misused a judicial
institution to enter into a marriage of convenience; she should not be allowed to again abuse it to get
herself out of an inconvenient situation. Article 45 provides that 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;
(2) That either party was of unsound mind, unless after coming to reason, the party freely cohabited with
the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless the 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, the party afterwards freely cohabited with the other as husband and
(5) That either party was physically incapable of consummating the marriage with the other, and the
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.
Article 45, paragraph (3) speaks of fraud that may annul a marriage.

What constitutes fraud?
Any of the following circumstances constitutes fraud referred to in Number 3 of Article 44:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral
(2) Concealment by the wife that at the time of the marriage, she was pregnant by a man other than her
(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, homosexuality, or lesbianism existing at the time
of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity constitutes fraud
that will give grounds for the annulment of marriage.
Who can file for the annulment of a marriage and within what periods?
(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 the 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 spouse'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
(3) For causes mentioned in number 3 of Article 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

What is the duty of the Court in cases of annulment or declaration of nullity of marriages?
Article 48 provides that in all cases of annulment or declaration of absolute nullity of marriage, the Court
must 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.

During the course of the trial for the annulment or declaration of nullity of marriages, how can the
rights of the spouses and their children as to support, visitation rights, etc. be ensured?
Article 49 provides that during the pendency of the action and in the absence of adequate provisions in a
written agreement between the spouses, the Court must provide for the support of the spouses and the
custody and support of their common children. The Court must give paramount consideration to the
moral and material welfare of the children and their choice of the parent with whom they wish to remain
under Title IX. It must also provide for appropriate visitation rights of the other parent.

What are the things to be decided upon by the Court in cases of annulment or declaration of nullity?
Article 50 provides that the final judgment of the Court must provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common children, and the
delivery of their presumptive legitimes, unless such matters had been decided upon in previous judicial
proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership
must be notified of the proceedings for liquidation.

How can the rights of the children be guaranteed?
Article 51 provides that in the partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, must 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.

Does this mean that the children will no longer inherit from their parents?
No, the delivery of the presumptive legitimes will not 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 will be considered as advances on their

What are required to be done with the judgment, partition, etc.?
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 must be recorded in
the appropriate civil registry and registries of property; otherwise, it will not affect third persons.

When can the former spouses get married again to other persons?
Article 53 provides that either of the former spouses may marry again after complying with the
requirements of Article 52; otherwise, the subsequent marriage will be void.

What is the status of the children in these cases?
Article 54 provides that children conceived or born before the judgment of annulment or absolute nullity
of the marriage under Article 36 has become final and executory are legitimate. Children conceived or
born of the subsequent marriage under Article 53 are also legitimate.