Vous êtes sur la page 1sur 9

CHAPTER 3: VOID AND VOIDABLE MARRIAGES (a) belief of one party would suffice

Void Marriage Voidable Marriage (b) Good faith- after reasonable inquiry and investigation

As to nature Inexistent ab intio valid until annulled Solemnized without a marriage license
subject to exceptions in the preceding chapter of this code
can be ratified by either
As to susceptibility of free cohabitation or Bigamous or polygamous marriage
convalidation Cannot be convalidated/ratified prescription exception is the bigamous, voidable marriage under art 41 where one of the spouses is an
Absolute community absentee
No community property; only co- exist unless there is a good faith of either part is immaterial unlike art. 69 of the civil code of Spain
As to effect on property ownership marriage settlement
legitimate if conceived Contracted through mistake of one party as to identify the other
illegitimate under art. 165 (w/ before decree of 1. constitutes fraud and is as valid ground for annulment (marriage is valid until annulled)
As to effect on children exceptions) annulment the committee is of the belief that if there was a mistake in the part of one party as to the
identity of the other, there was really no consent to the marriage and the marriage is thus void
ab initio
2. mistake with regards to the physical identity of the other and not merely on the character,
health, fortune, rank or chastity of one party
substitution of another party for the party who agreed to the marriage without the knowledge
May be attacked directly/collaterally, cannot be attacked,
of the other
As to how marriage may but for purposes of remarriage, there there must be decree of
be impugned must be judicial declaration of nullity annulment
Enumeration of Void Marriages in this Article Not Exclusive:
can no longer be there are marriages which lack any of the essential or formal requisites of marriage under Arts 2
can still be impugned even after death impugned after death and 3 and are void even if this article does not include them
example: marriages in jest, common law marriages, marriages by proxy
Art. 35. The following marriages shall be void from the beginning: a second marriage without complying with article 52 (delivery of the presumptive legitime of
(1) Those contracted by any party below eighteen years of age even with the consent of the children of the annulled marriage that was declared void ab initio) is also null and void
parents or guardians; (2) Those solemnized by any person not legally authorized to perform under Art 53
marriages unless such marriages were contracted with either or both parties believing in good
faith that the solemnizing officer had the legal authority to do so; Art. 36. A marriage contracted by any party who, at the time of the celebration, was
(3) Those solemnized without license, except those covered the preceding Chapter; psychologically incapacitated to comply with the essential marital obligations of marriage,
(4) Those bigamous or polygamous marriages not failing under Article 41; shall likewise be void even if such incapacity becomes manifest only after its solemnization.
(5) Those contracted through mistake of one contracting party as to the identity of the other; (As amended by Executive Order 227)
and
(6) Those subsequent marriages that are void under Article 53. Psychological Incapacity As a Ground to Render the Marriage Void
psychological incapacity to comply with the essential marital obligations of marriage is a
Marriage of Parties below 18 ground that will render the marriage void
Marriage is void even with parental consent because of the lacking essential requisite of legal incapacity does not need to be manifested before or during the marriage
capacity of the contracting parties it is a basic requirement that the psychological defect be existing during the marriage.
Void whether only one or both are below 18 y/o Thus, 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
Solemnized by person with no authority likewise be void even if such incapacity becomes manifest only after its solemnization. (Art. 36,
refer to comments under arts 7, 10, 31, 32 as amended by EO 227).
the marriage is valid if either or both contracting parties had believed in good faith that the
solemnizing officer had legal authority
Essential marital obligations are set forth under Art. 68 which provides that the husband and
wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual The committee decided to adopt the third paragraph of the New Code of Canon
help and support. Law as a ground for declaration of nullity of marriage because:
1. As a substitute for divorce. Divorce is controversial and is opposed by the
Psychological Incapacity Distinguished from Vice Consent Catholic church. Drawing from the Canon Law itself does not conflict with the
Psychological incapacity has nothing to do with consent to marriage traditional civil law concept of voidable marriages
a person may give free voluntary consent (his mind knew what marriage is and the **it has already been for years favored in the annulment of Catholic
responsibilities in it) but his will may not be capable of fulfilling such rights and obligations religion marriage.
Psychological incapacity is not a question of defective consent but a question of fulfillment of a 2. As a solution to the problem of Church-annulled marriages. There are
valid reason marriages annulled by the Catholic church but still exist under the Civil Law.
This provision would give many parties to church-annulled marriages a cause
Is the Psychologically incapacitated person disqualified from marrying again? of action to have their marriages declared void by the civil courts
The church does not impose an absolute prohibition for a person proven to have a psychological 3. As an additional remedy. This would give remedy to parties who are
effect to marry again because he or she may get the right partner who understands his or her imprisoned by a marriage that exists in the name only as they have long
problem separated because of the inability of one to perform the essential obligations
The fact of his psychological incapacity for marriage would be revealed anyway when he or she of marriage
applies for a marriage license for the second marriage and the other party is thus placed on Observe that if a marriage can be declared void by the church (such as the Catholic Church) on
guard to investigate about the matter the ground of psychological incapacity, the same ground may be given as cause for
cancellation of a marriage in our civil courts without the necessity of prior church cancellation
Who can file the action to declare a marriage void? *** Please note CANCELLATION of the marriage, not legal separation, and said
either party even the psychologically incapacitated person cancellation will allow either or both parties to get married again to some other
persons.
The Concept of Psychological Incapacity Under church laws, examples of psychological incapacity will include:
Psychological incapacity- the condition of a person who does not have the mind, will, and a wrong concept of marital vows and marital infidelity, adamant refusal to give support,
heart for the performance of marriage obligations unbearable jealousy on the part of one party, indolence, extremely low intelligence,
must be a lasting condition criminality (or the state of a person consistently getting into trouble with the law),
i.e., the signs are clear that the subject will not be rid of his incapacity, sadism, epilepsy, habitual alcoholism, drug addiction, compulsive gambling,
considering the peculiar socio-cultural milieu of his marriage, its actual situation, homosexuality in men or lesbianism in women, satyriasis in men or nymphomania in
and the concrete person of his spouse women.
the incapacity must already be a condition in the subject at the time of the wedding, although **Even if these causes should manifest themselves long after the wedding as
its manifestation or detection would occur later already adverted to, said causes are considered to be POTENTIALLY existing
psychological incapacity is now accepted in civil law as ground for civil marriage annulment already at the time of the celebration of the marriage. Surely, this is actual
***The inclusion in the Family Code of psychological incapacity had its absolute divorce, although given another name.
bearings in the Canon Law Code. Canon 1095, paragraph 3, reads: They are Different from the church, the committee did not give specific examples for fear that this would
incapable of contracting marriage, who are not capable of assuming the limit the applicability of the provision, rather the committee would like the judge to interpret
essential obligations of matrimony due to causes of a psychological nature. the provision on a case to case basis guided by experience, findings of experts and researchers
in psychological disciplines and by decision of church tribunals which may be given persuasive
The following are incapable of contracting marriage: effect
1. those who lack sufficient use of reason According to Dr. Veloso: Isnt psychological incapacity a ground for divorce?
2. those who suffer from a grave lack of discretionary judgment concerning the ---It should be if divorce were allowed here. In countries permitting it, psychological
essential matrimonial rights and obligations to be mutually given and incapacity could go under different names, such as mental cruelty or outright insanity.
accepted The difference between annulment and divorce is real, but they produce the same
3. those who, because of causes of psychological nature, are unable to assume result, namely, freedom to marry again. Freedom is what people look for, whatever the
the essential obligations of marriage theoretical scaffolding leading to it.
Anent the non-existence of absolute divorce, it is THEORETICALLY correct to say that we have
NO divorce law at present (except insofar as Muslim divorces are concerned). But the startling ANOTHER QUERY
TRUTH is that under Art. 36 of the new Family Code (Executive Order 209, as amended by EO Is Art. 36 of the Family Code dealing with psychological incapacity the
227, dated July 17, 1987), there seems to be a basis for the conclusion that we now have a same as that of divorce?
semblance of absolute divorce here in the Philippines. ANSWER: No. Said Art. (36) should not be confused with a divorce law that
***Note that for marriages celebrated on or after Aug. 3, 1988 (date of effectivity of cuts the marital bond at the time, the causes therefore manifest themselves,
the Family Code), the period within which to file the action does NOT prescribe, i.e., and neither is it to be equated with legal separation, in which the grounds
the action can be brought before our civil courts at ANYTIME. Likewise, there is no need not be rooted in psychological incapacity but on physical violence,
prescription for marriages entered into before said date. moral pressure, moral corruption, civil interdiction, drug addiction, habitual
Psychological incapacity DOES NOT refer to mental incapacity tantamount to insanity (which alcoholism, sexual infidelity, abandonment, and the like. (Perez-Ferraris v.
merely renders the marriage voidable) Ferraris, supra).
mental capacity or insanity of some kind is a vice of consent while psychological incapacity is not
a species of vice of consent Concept of Psychological Incapacity As Ground For Nullity of Marriage Is Novel In the Body of
mental insanity of mental incapacity: Philippine Laws
1. may be of varying degrees this is so although mental incapacity has long been recognized as a ground for the dissolution of
2. is curable being an illness, hence marriage is capable of ratification a marriage. (Antonio v. Reyes, 484 SCRA 353 [2006]).
3. has lucid intervals Several reasons have been adduced by the Philippine Supreme Court, in arriving at this
4. is a ground only for annulment of marriage in many countries conclusion, thus:
1. Jurisprudence has recognized that psychological incapacity is a malady so grave and
The Existence of Psychological Incapacity Depends on the Facts of the Case permanent as to deprive one of awareness of the duties and responsibilities of the
matrimonial bond one is about to assume (Ibid.)
Amy Perez-Ferraris v. Brix Ferraris 495 SCRA 396 (2006) 2. Given the avowed State interest in promoting marriage as the foundation of the nation,
ISSUE: Whether or not psychological incapacity exists in a given case there is a corresponding interest for the State to defend against marriages, ill-equipped
calling for annulment of marriage depends crucially, more than in any to promote family life (Ibid.)
field of the law, on the facts of the case. 3. The requirement provided in the Molina case for the Solicitor General to issue a
certification stating his reasons for his agreement or opposition to the petition for
HELD: Yes. Said the Supreme Court, thus: annulment of marriage has been dispensed with following the implementation of AM
1. The term psychological incapacity to be a ground for the nullity of 02-11-10- SC, or the Rule on Declaration of Absolute Nullity of Void Marriages and
marriage under Art. 36 of the Fam-ily Code, refers to a serious psychological [Annulment of Voidable Marriages] (Ibid.);
illness affecting a party even before the celebration of the marriage; and 4. The root causes of respondents psychological incapacity has been medically or
2. A husbands alleged mixed personality disorder, the leaving-the- clinically-identified and proven by experts as perennially telling lies, fabricating
house attitude whenever the spouses quarreled, the violent tendencies ridiculous stories and inventing personalities and situations, of writing letters to
during epileptic attacks, the sexual infidelity, the abandonment and lack of petitioner using fictitious names, and of lying about her actual occupation, income,
support, and, his preference to spend more time with his band mates than educational attainment and family background inter alia (Ibid.);
his family, are not rooted on some debilitating psychological condition but a 5. The Supreme Court has already held in Marcos v. Marcos, 343 SCRA 755 (2000), that
mere refusal or unwillingness to assume the essential obligations of personal examination of the subject by the physician is not required for the spouse to be
marriage. It is not enough to prove that the parties failed to meet their declared psychologically incapacitated.
responsibilities and duties as married persons; it is essential that they must 6. A person unable to distinguish between fantasy and reality would similarly be unable to
be shown to be incapable of doing so, due to some psychological, not comprehend the legal nature of the marital bond, much less its psychic meaning, and
physical, illness. the corresponding obligations attached to marriage, including parenting (Antonio v.
Reyes, op. cit.); and
QUERY 7. The psychological incapacity must be shown to be medically or clinically permanent or
Is an unsatisfactory marriage considered a null and void marriage? incurable. The requirement that psychological incapacity must be shown to be medically
Ans.: No, it is not. (Perez-Ferraris v. Ferraris, 495 SCRA 396 [2006]).
or clinically permanent or incurable is one that necessarily cannot be divined without marriage, the totality of evidence presented during trial by the spouse seeking the declaration
expert opinion. (Ibid.) of nullity of marriage must still prove the gravity, judicial antecedence, and incurability, as
previously adverted to, of the alleged psychological incapacity
Effect of the Rule Expert Opinion Need Not Be Alleged
The obvious effect on the new rules providing that expert opinion need not be alleged in the Status of Children under this article
petition is that there is also no need to alleged the root cause of the psychological incapacity the children conceived or born before the decree of nullity of marriage are considered
only experts in the fields of neurological and behavioral sciences are competent to determine legitimate
the root cause of psychological incapacity. this together with children born of the subsequent marriage under art 53 are exceptions to Art
165 defining illegitimate children
Psychological Incapacity Reexamined
Psychological incapacity should refer to no less than a mental (not physical) incapacity that Properties after annulment of marriage
causes a party to be truly cognitive of the basic marital covenants that concomitantly must be family home and all common property shall be divided between them in equal shares since the
assumed and discharged by the parties to the marriage which include their mutual obligations liquidation and partition of said properties are governed by the provisions on co-ownership
to live together, observe love, respect, fidelity, and to render help and support.
It is contradictory to characterize acts as a product of psychologically incapacity and, hence, Necessity of Intervention by Solicitor General
beyond the control of the party because of an innate inability while at the same time in the Special Rule on Declaration of Nullity and Annulment of Marriage promulgates by the SC,
considering the same set of acts as willful the Solicitor general is no longer required to appear in every case of declaration of nullity or
since psychological incapacity means that one is truly incognitive of the basic marital covenants annulment of marriage
that one must assume and discharge as a consequence of marriage, it removes the basis for the petitioner is required to serve a copy of the petition on the SolGen who may file a motion for
contention that the petitioner purposely deceived the private respondent reconsideration from the decision granting the petition and who may appeal within 15 days
While it is no longer necessary to allege expert opinion in a petition under Art. 36 of the Family from notice of the denial of said motion
Code, such psychological incapacity must be established by the TOTALITY OF THE EVIDENCE
presented during the trial. Decree of nullity or of annulment is the best evidence of such annulment
**The totality of the evidence, as shown in Villalon v. Villalon (475 SCRA 572 not the petition granting the decision
[2005]), does not support a finding that petitioner is psychologically this decree is issued by the court after compliance by the parties of Arts 50-52 of the family
incapacitated to fulfill his marital obligations. Although he engaged in marital code and the registration in the appropriate civil registries and registries of property of the
infidelity in at least two occasions, the same does not appear to be symptomatic partition between them of their properties and the delivery of their childrens presumptive
of a grave psychological disorder which rendered him incapable of performing legitimes
his spousal obligations. (Ibid.).
Psychological incapacity, as a ground for the declaration of nullity of a marriage, must be Art. 36 of the Family Code is Not to be Confused with a Divorce Law
characterized by juridical antecedence, gravity, and incurability. Art. 36 of the Family Code is NOT TO BE CONFUSED WITH A DIVORCE LAW that cuts the material
**(Villalon, op. cit.). In said case, the Supreme Court agrees with the Court of bond at the time the causes therefore manifest themselves it refers to a serious
Appeals that petition failed to establish the incurability and gravity of his alleged psychological illness afflicting a party even before the celebration of the marriage.
psychological disorder. (Ibid.). By itself, sexual in- fidelity, is not sufficient proof that
petitioner is suffering from psychological incapacity. It must be shown that the acts Art. 37. Marriages between the following are incestuous and void from the beginning,
of un- faithfulness are manifestations of a discarded personality which make whether the relationship between the parties be legitimate or illegitimate
petitioner completely unable to discharge the duties and obligations of marriage. 1. Between ascendants and descendants of any degree
(Ibid.). Nonetheless, refusal to comply with the essential obligations of marriage is 2. Between brothers and sisters, whether of the full or half-blood
not psychological incapacity within the meaning of the law. (Republic of the Phils. v.
CA, 268 SCRA 198 [1997]). The cause of the alleged psychological incapacity must be How Degrees of Generation Are Computed
identified as a psychological illness and its incapacitating nature fully-explained. In the direct line, count ALL who are included, then minus one. Herein, a
(Ibid.) granddaughter is two degrees away from the grandfather
Even when the rules have been relaxed and the personal examination of a spouse by a In the collateral line go up to the nearest common ancestor, then go down minus
psychiatrist or psychologist is no longer mandatory for the declaration of nullity of their one. (Hence, brothers are 2 degrees apart
Relationships OUTSIDE art. 37 and 38 are NOT IMPEDIMENTS to Marriage
Art. 38. The following marriages shall be void from the beginning for reasons of public policy: 1. Brother in Law and Sister in law
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil 2. Stepbrother and stepsister
degree; 3. Guardian and ward
(2) Between step-parents and step-children; 4. Adopted and illegimate child of the adopter
(3) Between parents-in-law and children-in-law; 5. Adopted son of the husband and the adopted daughter of the wife
(5) Between the surviving spouse of the adopting parent and the adopted child; 6. Parties who have been convicted of adultery or concubinage.
(6) Between the surviving spouse of the adopted child and the adopter
(7) Between an adopted child and a legitimate child of the adopter; Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not
(8) Between adopted children of the same adopter; prescribe. (As amended by RA 8533, dated Feb. 23, 1998)
(9) Between parties where one, with the intention to marry the other, killed that other Before it was amended, the action or defense for the declaration of nullity of marriage
persons spouse, or his or her own spouse. under art. 36 (psychological incapacity) shall prescribe in 10 years. Now there is NO
PRESCRIPTION.
Other Void Marriages
(a) Marriages in a play, drama, or movie. Article 40. The absolute nullity of a previous marriage may be invoked for purposes of
(b) Marriages between two boys and two girls. marriage on the basis solely of a final judgment declaring such previous marriage void.
(c) Marriages in jest. In Domingo v. CA, the Family Code has clearly provided the effects of the declaration
(d) Common law marriages. of nullity of marriage.
There is necessity for a judicial declaration of absolute nullity of a prior subsisting
When Second Marriage is NOT Bigamous marriage before contracting another.
A married man contracted a second marriage on Aug. 18, 1951, but the marriage The clause on the basis solely of a final judgment declaring such marriage void
license was issued only on Aug. 19, 1951, or one day following. He was prosecuted for denotes that such final judgment declaring the previous marriage void need not be
bigamy obtained only for purposes of remarriage.
He is not guilty, because the second marriage by itself was null and void. The Under the Family Code, there must be a judicial declaration of the nullity of the
subsequent issuance of the license does not validate the void marriage. Had the previous marriage before a party can enter into a second marriage.
license been issued prior to the celebration of the second marriage, said second Article 40 of the Code is applicable to remarriages entered into after the effectivity of
marriage would have been valid were it not for the existence of the rst marriage. In the Family Code on Aug. 3, 1988 regardless of the date of the first marriage.
such a case, he would have been guilty of bigamy Article 40 is given a retroactive effect
Void marriages still need judicial declaration.
Liability of Solemnizer Although the marriage may be null and void, the parties are not allowed to assume its
If a Judge signs a marriage contract before the marriage license is obtained (and then nullity but that there is need of a judicial declaration of such fact before the parties
postdates the marriage contract) on the request of the mother of the bride (who had can marry again; otherwise, the second marriage will also be void.
been raped), he can be said to have acted imprudently, and should be admonished. A marriage void for lack of a marriage license still needs a judicial declaration for such
fact.
Stepbrothers, Etc.
A woman with a child G got married to a man with a child, B. May G and B get validly Article 41. A marriage contracted by any person during the substinence of a previous marriage
married to each other? shall be null and void, unless before the celebration of a subsequent marriage, the prior
Yes, because although they are considered as stepbrother and stepsister of each spouse had been absent for four consecutive years, and the spouse present had a well-
other, still such a marriage, while prohibited under the Civil Code, is now allowed founded belief that the absent spouse was already dead. In case of disappearance where
under the Family Code there is danger of death under the circumstances set forth in the provisions of Article 391 of
Rule for Roman Catholic Priests on Marriage the Civil Code, an absence of only two years shall be sufficient.
Yes they can marry, under the civil law, for his being a priest is not, under our law, a
disqualication. Thus, it is legally possible for such a priest to have a legitimate child For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of The missing person was in danger of death under other circumstances
reappearance of the absent spouse. Vessel includes all kinds of watercraft, and aeroplane, all kinds of aircraft
War all military operations involving armed fighting, and does not only apply to
Kinds of Bigamous Marriages under this Article: soldiers but also to those employed in the armed forces like nurses and doctors,
1) The void bigamous marriage contracted by a person during the substinence of his or her reporters, and cameramen
previous marriage. Danger of death includes such events as earthquakes, fires, explosions, dangerous
The good faith of the party who marries is immaterial, the second marriage expeditions, landslides, volcanic eruptions, etc.
would still be void.
The person who marries again in bad faith is criminally liable for bigamy 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
2) The voidable bigamous marriage contracted by a person whose spouse has been absent for there is a judgment annulling the previous marriage or declaring it void ab initio.
4 consecutive years (in ordinary absence) or 2 years (in extraordinary absence)
A sworn statement of the fact and circumstances of reappearance shall be recorded in the
Under Article 83 of the Civil Code, the subsequent marriage is voidable: civil registry of the residence of the parties to the subsequent marriage at the instance of any
1) When the absent spouse has not been heard of for seven consecutive years interested person with due notice to the spouses of the subsequent marriage and without
2) when, although absent for less than seven years, the absentee is generally considered as prejudice to the fact of reappearance being judicially determined in case such fact is disputed.
dead and believed to be so by the present spouse; and
3) when the absent spouse is presumed to be dead after four years from the occurrence any of Rule Under the Civil Code:
the events enumerated in Art 391 of the Civil Code Under Article 83 of the Civil Code, the second marriage contracted by a person with
an absent spouse remains valid until annulled by a competent court upon the
Under the above Article of the Family Code, the period of 7 years is reduced to 4 reappearance of the missing spouse, which action for annulment may be filed,
years, and the period of 4 years is reduced to 2 years --- Reason for reduction: it is according to Article 87 of the Civil Code, by the returning spouse throughout his
now much easier to receive news about what is happening in other parts of the lifetime, or by the spouse of the subsequent marriage.
country or even abroad because of modern means of communication and Anomalous situation arises: if nobody files said action for annulment, both the present
transportation. spouse and the first spouse are entitled to exercise conjugal rights.
Under the Civil Code, there is no need for the missing spouse to be judicially declared The Civil Code has no solution to this situation.
st
an absentee before the present spouse can marry again. it is enough that the required Many authorities believe that the 1 marriage and all its effects with respect to the
period of absence has passed. personal and property relations of the parties should be considered suspended by the
nd
The above Article of the Family Code clearly provides that for the purpose of the celebration of the 2 marriage.
present spouse contracting a second marriage, he or she must file a summary The effects on the first marriage would be similar to legal separation in which the
proceeding as provided in the Code for the declaration of the presumptive death of marriage subsists but the rights and obligations of the parties to each other are
the absentee, without prejudice to the latters reappearance. This provision is extinguished. to be revived only in case of the return of the missing spouse and
nd
intended to protect the present spouse from a criminal prosecution for bigamy under annulment of the 2 marriage of the present spouse.
Art. 349 of the Revised Penal Code because with the judicial declaration that the
missing spouse is presumptively dead, the good faith of the present spouse in The absent spouse who returns cannot get married again because he or she
contracting a second marriage is already established. is still married to the present spouse.
The present spouse cannot have sexual relations with both the returning
Absent Spouse spouse and his or her second spouse.
The other spouse has been missing for at least 4 years Properties acquired by the absent spouse during his or her absence or after
The period of 4 years is reduced to 2 years of in the disappearance of the missing his or her return do not become part of his or her conjugal partnership with
spouse, there was danger of death as provided in Article 391 of the Civil Code namely: the present spouse.
The missing person was on board a vessel lost during a voyage, or an If a child is born of the returning spouse and the present spouse, the child is
aeroplane which is missing; illegitimate.
The missing person was in the armed forces and had taken part in war
Rule under the Family Code (4) 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
1) the subsequent marriage referred to in Article 41 shall be automatically terminated by the irrevocable; and
recording of an affidavit of the reappearance of the absent spouse in the office of the local civil (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to
registrar of the residence of the parties to the second marriage. inherit from the innocent spouse by testate and intestate succession. (n)

2) The affidavit of reappearance may be recorded by the returning spouse or by any interested Net Profits
person. Net profits refer to the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market value at the time
3) Due notice of the recording of the affidavit of reappearance must be sent to the spouses of of its dissolution
the subsequent marriage. o DOES NOT refer to the capital contributed by each spouse who retains
his/her right thereto regardless of bad/good faith
4) The fact of reappearance may be referred to the courts in a proper action if such fact is
disputed. *Arts. 43(2, 3, 4, and 5) and 44 apply to marriages declared void ab initio or annulled by final
judgment under Arts. 40 and 45
5) The automatic termination of the second marriage will not apply if the previous marriage of
the present spouse and the returning spouse has been annulled or declared void by the courts. Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be
void ab initio and all donations by reason of marriage and testamentary dispositions made by
Critiques: one in favor of the other are revoked by operation of law. (n)
It may be unduly harsh and oppressive to the spouses of the second marriage who
may really love each other and would like to stay married Another Instance of a Void Marriage
May constitute an undue imposition on the present spouse to live with the returning Refers to another instance of void marriage when both spouses in the subsequent
first spouse even if he or she does not want to do so. marriage act in bad faith
Akin to other void marriages, there must be a judicial declaration of nullity as required
Ruling: under Art. 40 as well as registration of said judgment in the civil registry under Art. 52
The automatic termination of the second marriage upon the return of the absent *Void marriages are found under Arts. 35, 36, 37, 38, 44, and 53
spouse is the BETTER solution because if the solution is left to the present spouse, he
or she may decide to keep both marriages. SIEMPO-DY
The absent spouse who returns cannot marry again if his or her spouse decides to Spouses Having Acted in BAD FAITH
stick to the second marriage. Both spouses to the subsequent marriage knew that the absent spouse was still alive
when they entered into said marriage
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall Their marriage is void ab initio and they may even be prosecuted for bigamy
produce the following effects: Effects on the personal and property relations of the spouses as well as their children
(1) The children of the subsequent marriage conceived prior to its termination shall be will be those of marriages that are null and void and NOT those of voidable marriages
considered legitimate and their custody and support in case of dispute shall be decided by the Donations by reason of marriage and testamentary dispositions made by one in favor of
court in a proper proceeding; the other are revoked by operation of law
(2) The absolute community of property or the conjugal partnership, as the case may be,
shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, Art. 45. The marriage may be annulled for any of the following causes, existing at the time of
his or her share of the net profits of the community property or conjugal partnership property the marriage:
shall be forfeited in favor of the common children or, if there are none, the children of the (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen
guilty spouse by a previous marriage, or in default of children, the innocent spouse; years of age or over but below twenty-one, and the marriage was solemnized with- out the
(3) Donations by reason of marriage shall remain valid, except that if the donee consent of the parents, guardian or person having substitute parental authority over the
contracted the marriage in bad faith, such donations made to said donee are revoked by party, in that order, unless after attaining the age of twenty-one, such party freely cohabited
operation of law; with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party, after coming to reason, to
freely cohabited with the other as husband and wife; In marriage contracts, not all kinds of fraud make the marriage voidable. The fraud in
(3) That the consent of either party was obtained by fraud, unless such party afterwards, marriage must be one of those enumerated in Art. 46
with full knowledge of the facts constituting the fraud, freely cohabited with the other as How ratified free cohabitation after full knowledge of the facts constituting the fraud
husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue Force, Intimidation or Undue Influence
influence, unless the same having disappeared or ceased, such party thereafter freely Force or Violence in order to wrest consent, serious or irresistible force is employed
cohabited with the other as husband and wife; Intimidation when one of the contracting parties is compelled by a reasonable and
(5) That either party was physically incapable of con- summating the marriage with the well- grounded fear of an imminent and grave evil upon his person or property, or upon
other, and such incapacity continues and appears to be incurable; or the person or property of his spouse, descendants, or ascendants, to give his consent
(6) That either party was afflicted with a sexually- transmissible disease found to be serious Undue influence control over ones will
and appears to be incurable. (85a) Impotence or Physical Incapacity
(a)
Grounds for the Annulment of a Marriage Impotence (impotentia copulandi) refers to lack of power of copulation and not to mere
Must exist at the time of the celebration of the marriage sterility (impotentia generandi)
A voidable marriage is valid until it is annulled Although impotency carries with it sterility, a sterile person is not necessarily impotent
Before annulment, the voidable marriage must be regarded as valid. Impotency is a ground to annul marriage because:
o If known to the impotent person, a grievous fraud and injury has been
Key words for the causes committed
1. Non-age (below 18) o If unknown to the impotent person, there is a violation of an implied
2. Unsoundness of mind warranty
3. Fraud (as defined in Art. 46, Family Code) (b)
4. Force, intimidation, or undue influence The burden of proof of impotency is upon the complainant (who must be the potent
5. Impotence spouse) to prove that the impotency existed at the time of the wedding, that it still
6. Sexually-transmitted disease (if incurable) existed, and that it is incurable; and the pleadings must so state presumption is in
favor of the marriage.
Non-age Impotency, being an abnormal condition, should not be presumed presumption is in
Example: A 20-year-old boy married a 22-year-old girl. No parental consent was favor of potency
obtained by the man. The marriage is VOIDABLE. The lone testimony of the husband that his wife is physically incapable of sexual
o May the parents ratify? No, for this is not provided for under the law intercourse is, therefore, insufficient to tear asunder the ties that have bound them
together as husband and wife
Unsoundness of Mind
The parties must possess the mental capacity the law requires for the making of a will (c)
The true test is whether the party concerned could intelligently consent he knew A man may be impotent insofar as his wife is concerned, but potent insofar as other
what contract he was entering into women are concerned
Intoxication which results in lack of mental capacity to give consent is equivalent to o Woman can still have the marriage annulled, for her husbands impotency
unsoundness of mind with her was as prejudicial as universal impotency
Somnambulism at the time of the wedding (d)
Unsoundness of mind due to drug addiction Doctrine of Triennial Cohabitation Although the general rule is in favor of potency,
still there is a doctrine applied in England and some courts of the United States to the
effect that if the wife still remains a virgin after living together with her husband for
Fraud three years, the presumption is that the husband is impotent, and he will have to
Occurs through insidious words or machinations of one of the contracting parties, the overcome this presumption.
other is induced to enter into a contract which, without them, he would not have agreed (e)
The person alleged to be impotent may be examined physically. A refusal on the part of
a man to submit to an examination raises the presumption that the defendant is really
impotent. Where the lack of present impotency is admitted, an examination may still be
made to determine if the impotency existed at the time of the marriage celebration.
However, refusal on the part of a Filipino girl to submit to such physical examination,
does NOT raise the presumption of impotency because of the natural modesty of our
native girls.
(f)
For impotency to be a ground for the annulment of a marriage, the action must be
brought by the potent spouse, and such spouse must have been unaware of the others
impotency
(g)
In one case, where the plaintiff, 73 years of age, alleged that the husband was impotent
(age of husband was 60), the court refused to allow this defect to cancel the marriage

Sexually-Transmitted Diseases (STD)


These would include AIDS, herpes, syphilis, gonorrhea, hepatitis, and the like, provided,
they are serious. Of course, AIDS is not only serious, it is fatal.
How Voidable Marriages May be Ratified
Free and voluntary cohabitation ratifies the voidable marriage
The period need not be long
Cohabitation must be something more than mere living together in the same house or
even occupying the same bed; it is the living together of the parties as husband and
wife, including sexual relations

Distinctions Between ANNULMENT and LEGAL SEPARATION


ANNULMENT
(a) The marriage was defective at the very beginning.
(b) The cause for annulment must be already existing at the time of the marriage.
(c) There are seven grounds for annulment.
(d) Annulment dissolves the marriage bond; the parties are free to marry again.
(e) From the angle of Private International Law, the grounds are generally those given in the
lex loci celebrationis
LEGAL SEPARATION
(a) There was no defect in the marriage at the be- ginning.
(b) The cause for legal separation arises after the marriage celebration.
(c) There are ten grounds for legal separation.
(d) The marriage remains.
(e) From said angle, the grounds are those given by the NATIONAL LAW, not the lex loci
celebrationis for in legal separation, the very validity of the marriage itself is NOT
questioned, unlike in the case of annulment

Vous aimerez peut-être aussi