Article 37: Marriages between the following are incestuous

and void from the beginning, whether the relationship

between the parties be legitimate or illegitimate:

Article 38: The following marriages shall be void from the

beginning for reasons of public policy

1. Between ascendants or descendants of any

degree
2. Between brothers and sisters, whether of the full or
half-blood
-

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
parents 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 the adopted children of the same adopter
9. Between parties where one, with the intention to
marry the other, killed that other persons spouse
or his/her own spouse

Incestuous marriages have been universally condemned

as grossly indecent, immoral, and inimical to the
purity and happiness of the family and the welfare of
the future generations.

Reasons why incestuous marriages should be prohibited

(especially those between persons closely related by
consanguinity)
1. Abhorrent to the nature, not only of civilized men, but
of barbarous and semi-civilized people
2. Tend to the confusion of rights and duties
incident to family relations (Gould v Gould)
o Child of an incestuous union creates a special
problem of social placement, because its status
is so confused, as is that of its parents.
3. Intermarriages very often result in deficient and
degenerate offspring
o Genetic reason against the marriage of related
persons: to prevent the coming together in their
offspring of any deleterious recessive genes
4. Social and psychological aspects of an incestuous
marriage
o Social prohibitions against incest promote the
solidarity of nuclear family
o Family is the principal context for socialization of
an individual
o Worth noting that theory of the relation of
incest to the nuclear family is consistent with
Freudian psychology
Interfamily sexual attraction as one of
the basic facets of mental life and
attributes much psychic disturbance to
failure of the personality to resolve the
internal conflict between such desires
and societal repression of them

Article 38 provides the marriages described as against

public policy
o It is the policy of the state to foster a normal,
peaceful, and wholesome integral nuclear
family unit which would constitute the very
foundation of society
o Marriages described will not serve the
fundamental objective of nurturing a stable family
unit that can effectively be the foundation of
society
ONLY THOSE DECLARED BY LAW AS VOID MARRIAGE
SHOULD BE TREATED AS SUCH
o Enumeration in Article 38 is exclusive!
Collateral blood relatives by consanguinity
Marriage between collateral blood relatives up to the
fourth civil degree may disturb the policy of the state
Relationship by consanguinity is in itself not capable
of dissolution
o The fact that a common ascendant died does not
sever the blood relationship
The law does not provide that marriages between
collateral blood relatives by the half-blood are prohibited.

Audley v Audley
whether or not the provision in a marital statute prohibiting
marriages between uncles and nieces or aunts and
nephews also include half-blood relationships
- SC Appellate Division of New York (Justice Laughlin)
answered in affirmative
o it would not have been accurate for the
Legislature to have adopted the same
phraseology in said subdivision 3 as was adopted
in subdivision 2 (brothers and sisters)

With respect to lawful marriages, uncles

and nieces and aunts and nephews
could not be of the whole blood
the relationship generally known and
understood, and on that theory it has prohibited
marriages between an uncle and a niece or an
aunt and nephew without regard to the
percentage of their blood relationship

In Re: Simms Estate

- New York Court of Appeals stated hat a marriage between
uncle and niece by the half-blood is not incestuous and
void.
o Not specifically included by law as a void
marriage and cannot be considered as such.
o If the legislature had intended that its interdiction
on this type of marriage should extend down to
the rather more remote relationship, it would
have made a suitable provision.
o In failure to do so in the light of its explicit
language relating to brothers and sisters,
suggests it ay not have intended to carry this
interdiction this far.
-

Back v Back
- Marriage between a deceased husband and the daughter
of his former wife by another man of a previous marriage
- Relationship by affinity terminates with the termination of
the marriage (either by death or divorce) giving rise to the
relationship of affinity
- Marriage between them was valid because the
relationship by affinity was terminated when the mother
procured a divorce from the husband
Conflicting views on the termination of marriage by the
death of one of the spouses
1. Relationship by affinity is not terminated whether
there are children or not in the marriage (Carman v
Newell)
2. If spouses HAVE NO LIVING ISSUES OR CHILDREN
and one spouse dies, the relationship by affinity is
dissolved.
o Follows the rule that relationship by affinity
ceases with the dissolution of the marriage which
produces it
o Relationship by affinity continues if there are
living issues or children of the marriage
in whose veins the blood of the
parties are commingled, since the
relationship of affinity was continued
through the medium of the issue of the
marriage

In Re: Simms Estate appears to be the proper view.

All doubts must be construed in favor of marriage.
Only those expressly prohibited by law as void shall be
treated as such.
Provisions of article 38 must be strictly construed in
favor of the contracting parties and against its
illegality
Relationship by affinity
Step-parents and step-children as well as parents-in-law
and children-in-law are related by affinity
Affinity is a connection formed by marriage
o Placing the spouse in the same degree of
nominal propinquity to the relatives of the other
spouse
The only marriages by affinity prohibited are marriages
between step-parents and step-children as well as
parents-in-law and children-in-law
o Can most likely destroy the peacefulness of the
family relations and cause disturbance within the
family circle
o it would be scandalous for parents-in-law to
marry their children-in-law because it is more in
keeping with Philippine customs and traditions
that parents-in-law treat children-in-law like their
own children and vice-versa
Step-brother and step-sister can marry each other as
this relationship by affinity is not included in the
prohibition.
Effect of termination of marriage on the affinity
prohibition

In the event that the marriage is annulled or nullified,

relationship between step-parents and step-children as
well as parents-in-law and children-in-law is terminated
The said persons become strangers to each other.
Allowing them therefore to marry each other legally.

Adoptive relationship
Relationship created in adoption is merely limited to one
of parent and child
An ADOPTED can validly marry the parents, illegitimate
child, and other relatives, whether by consanguinity or
affinity, of the ADOPTER
There is no prohibition against the marriage between an
adopted and the illegitimate child of the adopter
The ADOPTER can validly marry the legitimate,
illegitimate or adopted child, the natural parent, and
other relatives, whether by consanguinity or affinity,
of the ADOPTED
Intentional killing of spouse
Situation described is HIGHLY CRIMINAL
If the guilty spouse can undertake a sinister scheme to kill
the spouse in order to marry another, there is no
guarantee that he/she will not do the same evil act against
the subsequent spouse

Guilty party must be animated by an intention to

marry another person
Mere preponderance of evidence is required to prove the
killing (Justice Caguioa)
it can be a unilateral intention and need not be shared
by the other spouse (Justice Puno)
o

Article 39: The action or defense for the declaration of absolute

nullity of a marriage shall not prescribe. (Amended by EO
227, dated July 17, 1987 and further amended by RA 8533,
dated February 23, 1998)
-

The time within which to file an action for the declaration of

nullity of a marriage or to invoke such nullity as a defense
DOES NOT PRESCRIBE
A judicial decree of nullity of a marriage does not
legally dissolve a marriage because SUCH MARRIAGE
IS INVALID FROM THE BEGINNING
Judicial decree merely declares or confirms the voidness,
non-existence, or incipient invalidity of the marriage.
Nial v Bayadog: Nullity or marriage was filed by the
children of the deceased only after the death. SC justifies
decision saying that a void marriage is considered as to
never having taken place and will be treated as nonexistent by courts. It is imprescriptible and can be filed by
children even after death of contracting party.
SC En Banc Resolution in AM No 02-11-10 ruling in
the Nial case as to prescription does not hold anymore.
o Only the husband and wife can file the case
o Case will be closed or terminated if during
pendency, the husband or wife should die
o Heirs can no longer file a case for nullity of
marriage
EO 227: If the ground for declaration of nullity is
psychological incapacity, and marriage was celebrated
prior to the effectivity of Family Code (Aug 3, 1988), such
action or defense must be filed or invoked within 10
years
o If marriage was celebrated after the effectivity of
Family Code, action or defense shall not
prescribe
RA 8533: Deleted the 10 year prescriptive period
There is no prescriptive period to nullify a marriage
under Article 36 even if the marriage was celebrated
before the Family Code
Only the husband or wife can file a court case declaring
the marriage void.
o Equitable doctrine of unclean hands
o Any parties in a void marriage can file a nullity
case even though such party is the wrong-doer

Wrong-doer may be held liable for

damages by way of counterclaim

SC Resolution in AM 02-11-10-SC: Any interested party

can file a direct case for nullity of marriage
Under the new rules on declaration of nullity, heirs
can no longer file a case for the nullity of marriage of
their parents or of their parent with a step-parent

Previously
- Father can file a case for declaration of nullity of a
bigamous marriage entered into by his daughter and
married man (Cojuangco v Romillo)
- Legitimate heirs can file a suit against stepmother for the
declaration of nullity to protect their successional rights
(Nial v Bayadog)
- Under the new rules, parents and heirs cannot file a
case for nullity.
-

Perez v CA: Second wife filed a petition for intervention in

the declaration of nullity of marriage filed by her husband
in relation to the first marriage. SC denied the petition
because the second wife had no legal interest to justify her
intervention.

Void marriage can still be COLLATERALLY ATTACKED

by any interested party in a proceeding where the
determination of marriage validity is necessary
o In an intestate proceeding, heirs can attack the
validity of marriage 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.
-

If a marriage is void ab initio, parties cannot contract a

subsequent valid marriage without a previous judicial
declaration of nullity of the previous void marriage
Though the first marriage is judicially declared void, any
subsequent marriage may still be declared void because
of failure to comply with Art 52 and 53
nullity of the marriage should be ascertained and
declared by the decree of a court of competent
jurisdiction

People v Mendoza (sept 28, 1954)

People v Aragon (Feb 28, 1957)
Gomez v Lipana (June 30, 1970)
Conseguera v Conseguera (Jan 30,
1971)
Odayat v Amante (June 2, 1977)
Tolentino v Paras (May 30, 1983)
Wiegel v Sempio Diy (Aug 19,
1986)
Yap v CA (Oct 28, 1986)
FAMILY CODE (Aug 3, 1988)

No need for a judicial declaration

of nullity of a void marriage
There was a need for a judicial
declaration of nullity
No need for judicial declaration
There was a need
No need for a judicial declaration
Article 40! There is a need for a
judicial declaration of nullity of a
void marriage ONLY FOR
PURPOSES OF REMARRIAGE

Status of subsequent marriage is dependent upon the time

of the solemnization

Domingo v CA: reason for the need to obtain a judicial

declaration of nullity
- Judicial declaration is now explicitly required either as a
cause of action or ground for defense
- The only acceptable basis for 2nd marriage to be free from
legal infirmity is a final judgment declaring the previous
marriage to be void
De Casto v Assidao-De Castro: in a case for support, the
lower court can declare a marriage void even without prior
judicial declaration of nullity filed in a separate action the
determination of the nullity is important in resolving the right of
the child to be supported.
- Validity of a marriage can be collaterally attacked
-

BIGAMY
In a bigamous void marriage, the subsisting first marriage
is valid
Crime of bigamy contemplates a situation where the first
marriage is valid or at least annullable and not void from
the beginning
If the 2nd marriage is void because of legal grounds other
then bigamy, then there can be no crime of bigamy
o Good faith in contracting the second marriage
is a defense in the crime of bigamy.

Mercado v Mercado
- Criminal offense of bigamy is committed for as long as a
subsequent marriage was contracted by a person without
obtaining a judicial declaration of nullity pursuant to Art 40
of Family Code.

CRIMINAL BIGAMY is determined by the fact that no

judicial declaration of nullity was obtained
o Dissent of Justice Vitug: The only effect of nonobservance of Article 40 is to make subsequent
marriage void pursuant to Articles 52 and 53