Vous êtes sur la page 1sur 9

LM 11 | kathromina

WEEK 5 FAM LAW


a. Discuss Article 37 of the Family Code.

 Art. 37. Marriages between the following are incestuous and void from the beginning,
whether relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.

b. Discuss Article 38 of the Family Code.

 Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth
civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other
person’s spouse, or his or her own spouse.

c. Discuss Article 39 of the Family Code.


 Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not
prescribe. (As amended by Executive Order 227 and Republic Act No. 8533; The phrase
“However, in case of marriage celebrated before the effectivity of this Code and falling under
Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect”
has been deleted by Republic Act No. 8533 [Approved February 23, 1998]).

d. Discuss Article 40 of the Family Code.


 Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring such previous marriage void.

TERRE V TERRE (1)

FACTS: On December 24, 1981, complainant Dorothy B. Terre charged respondent Atty. Jordan Terre, a
member of the Philippine Bar with “grossly immoral conduct,” consisting of contracting a second marriage
and living with another woman other than complainant, while his prior marriage with complainant
remained subsisting No judicial action having been initiated or any judicial declaration obtained as to the
nullity of such prior marriage of respondent with complainant. Respondent was charged with
abandonment of minor and bigamy by complainant. Dorothy Terre was then married to a certain Merlito
Bercenillo her first cousin, with this fact, Atty. Jordan Terre succesfully convinced complainant that her
marriage was void ab initio and they are free to contract marriage. In their marriage license, despite her
objection, he wrote “single” as her status. After getting the complainant pregnant, Atty. Terre abandoned
them and subsequently contracted another marriage to Helina Malicdem believing again that her previous
marriage was also void ab initio.
LM 11 | kathromina

ISSUE: WON a judicial declaration of nullity is needed to enter into a subsequent marriage

HELD: Yes. The Court considers this claim on the part of respondent Jordan Terre as a spurious defense.
In the first place, respondent has not rebutted complainant’s evidence as to the basic fact which
underscores that bad faith of respondent Terre. In the second place, the pretended defense is the same
argument by which he inveigled complainant into believing that her prior marriage or Merlito A. Bercenilla
being incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she
was free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer,
knew or should have known that such an argument ran counter to the prevailing case law of the Supreme
Court which holds that for purposes of determining whether a person is legally free to contract a second
marriage, a judicial declaration that the first marriage was null and void ab initio is essential.

TERRE V TERRE (2)

FACTS: Dorothy Terre (petitioner) and Atty. Jordan Terre (respondent) met in 1979 as highschool batch
mates. Petitioner was then married to a certain “Merlito Bercenilla. Respondent was aware of the
marital status of petitioner but still courted her. They moved to Manila to study, hence, respondent was
a law student in Lyceum. Respondent continued courting petitioner and respondent even explained that
petitioner’s first marriage is void because it was incestuous because they are first cousins. Also, the
decision of the court to declare her first marriage null and void is not needed anymore. Petitioner was
convinced and because of the advice she got from her mother and ex-laws, she married the respondent.
Petitioner declared in their marriage license that she was still single. After petitioner gave birth to a baby
boy, respondent contracted another marriage with a certain Helina Malicdem. Hence, petitioner filed a
case for abandonment of a minor and bigamy against respondent.

ISSUE: WON a judicial declaration of nullity is needed to enter into a subsequent marriage

HELD: YES. The first marriage between Dorothy and Merlito may have been void because it is against
public policy. The Court considers this claim on the part of respondent Jordan Terre as a spurious defense.
In the first place, respondent has not rebutted complainant’s evidence as to the basic fact which
underscores that bad faith of respondent Terre. In the second place, the pretended defense is the same
argument by which he inveigled complainant into believing that her prior marriage or Merlito A. Bercenilla
being incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she
was free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer,
knew or should have known that such an argument ran counter to the prevailing case law of the Supreme
Court which holds that for purposes of determining whether a person is legally free to contract a second
marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Also, Atty.
Jordan Terre is guilty of grossly immoral conduct which is against the legal profession. Therefore, Atty.
Terre is disbarred.

ATIENZA V JUDGE BRILLANTES (1)

Facts: Lupo Almodiel Atienza filed an administrative case against Judge Francisco Brillantes for Gross
Immorality and Appearance of Impropriety. Complainant alleges that he has two children with Yolanda
De Castro, who are living together at a subdivision in Makati, which he purchased in 1987. One day, he
caught the respondent asleep in his bedroom. He asked the houseboy about him and the latter said that
the judge had been cohabiting with De Castro. Atienza did not bother to wake up the respondent instead
asked the houseboy to take care of his two children. After that, the respondent prevented him from
LM 11 | kathromina

visiting his child and has alienated the affection of his children. The Complainant also claims that the
respondent is married to Zenaida Ongkiko. The judge denies having been married to Ongkiko because
their marriage was celebrated twice without marriage license, therefore, his marriage to De Castro in civil
rites in Los Angeles, California was because he believed in good faith and for all legal purposes, that his
first marriage was solemnized without marriage license. He further argues that Article 40 of the Family
Code is not applicable in his case because his first marriage in 1965 was governed by the Civil Code and
the 2nd relationship was 1991 under the Family Code. No retroactive Effect.

Issue: Whether or not the absence of marriage license of his previous marriage justifies his act to cohabit
with De Castro

Held: Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963.
At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he
never secured any marriage license. Any law student would know that a marriage license is necessary
before one can get married. Respondent was given an opportunity to correct the flaw in his first marriage
when he and Ongkiko were married for the second time. His failure to secure a marriage license on these
two occasions betrays his sinister motives and bad faith. Article 40 is applicable to remarriages entered
into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage.
Besides, under Article 256 of the Family Code, said Article is given “retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws.” This is
particularly true with Article 40, which is a rule of procedure. Respondent has not shown any vested right
that was impaired by the application of Article 40 to his case.

ATIENZA V JUDGE BRILLANTES (2)

FACTS: This is a complaint by Lupo A. Atienza for Gross Immorality and Appearance of Impropriety against
Judge Francisco Brillantes, Jr. Complainant alleged that he has two children with Yolanda De Castro with
whom respondent Judge was cohabiting with. Complainant claimed that respondent is married to one
Zenaida Ongkiko with whom he has 5 children. Respondent alleges that while he and Ongkiko went
through a marriage ceremony (1965) before a Nueva Ecija town Mayor, the same was not a valid marriage
for lack of a marriage license. Upon request of the parents of Ongkiko, respondent went through another
marriage ceremony with her in Manila. Again, neither party applied for a marriage license. Respondent
claims that when he married De Castro in civil rites in Los Angeles, California in 1991, he believed in all
good faith and for all legal intents and purposes that he was single because his first marriage was
solemnized without a license. Respondent also argues that the provision of Article 40 of the Family Code
does not apply to him considering that his first marriage took place in 1965 and was governed by the Civil
Code of the Philippines; while the second marriage took place in 1991 and governed by the Family Code.

ISSUE: WON Article 40 of the Family Code is applicable to the case at bar.

HELD: Yes. Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on
August 3, 1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code,
said Article is given “retroactive effect insofar as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other laws.” This is particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested right that was impaired by the application of Article 40
to his case.

CARINO V CARINO (1)


LM 11 | kathromina

FACTS: In 1969 SPO4 Santiago Cariño married Susan Nicdao Cariño. He had 2 children with her. In 1992,
SPO4 contracted a second marriage, this time with Susan Yee Cariño. In 1988, prior to his second marriage,
SPO4 is already bedridden and he was under the care of Yee. In 1992, he died 13 days after his marriage
with Yee. Thereafter, the spouses went on to claim the benefits of SPO4. Nicdao was able to claim a total
of P140,000.00 while Yee was able to collect a total of P21,000.00. In 1993, Yee filed an action for
collection of sum of money against Nicdao. She wanted to have half of the P140k. Yee admitted that her
marriage with SPO4 was solemnized during the subsistence of the marriage b/n SPO4 and Nicdao but the
said marriage between Nicdao and SPO4 is null and void due to the absence of a valid marriage license as
certified by the local civil registrar. Yee also claimed that she only found out about the previous marriage
on SPO4’s funeral.

ISSUE: Whether or not the absolute nullity of marriage may be invoked to claim presumptive legitimes.

HELD: The marriage between Nicdao and SPO4 is null and void due the absence of a valid marriage license.
The marriage between Yee and SPO4 is likewise null and void for the same has been solemnized without
the judicial declaration of the nullity of the marriage between Nicdao and SPO4. Under Article 40 of the
FC, 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. Meaning, where the 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 said projected marriage to be free from legal infirmity, is a final judgment declaring
the previous marriage void. However, for purposes other than remarriage, no judicial action is necessary
to declare a marriage an absolute nullity. For other purposes, such as but not limited to the determination
of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a
criminal case for that matter, the court may pass upon the validity of marriage even after the death of the
parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long
as it is essential to the determination of the case. In such instances, evidence must be adduced,
testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an
absolute nullity. These need not be limited solely to an earlier final judgment of a court declaring such
previous marriage void. The SC ruled that Yee has no right to the benefits earned by SPO4 as a policeman
for their marriage is void due to bigamy; she is only entitled to properties, money etc owned by them in
common in proportion to their respective contributions. Wages and salaries earned by each party shall
belong to him or her exclusively (Art. 148 of FC). Nicdao is entitled to the full benefits earned by SPO4 as
a cop even if their marriage is likewise void. This is because the two were capacitated to marry each other
for there were no impediments but their marriage was void due to the lack of a marriage license; in their
situation, their property relations is governed by Art 147 of the FC which provides that everything they
earned during their cohabitation is presumed to have been equally contributed by each party – this
includes salaries and wages earned by each party notwithstanding the fact that the other may not have
contributed at all.

CARINO V CARINO (2)

FACTS: SPO4 Santiago Cariño married Susan Nicdao in 1969 without marriage license. They had two
children. He then married Susan Yee on November 10 1992, with whom he had no children in their almost
10 year cohabitation starting way back in 1982. He passed away on November 23 1992. The two Susans
filed with the RTC of Quezon City the claims for monetary benefits and financial assistance pertaining to
the deceased from various government agencies. Nicdao collected a total of P146,000 while Yee received
a total of P21,000. Yee filed an instant case for collection of half the money acquired by Nicdao, collectively
LM 11 | kathromina

denominated as "death benefits." Yee admitted that her marriage with the SPO4 took place during the
subsistence of, and without first obtaining a judicial declaration of nullity, the marriage between Nicdao
and the SPO4. She however claimed that she became aware of the previous marriage at the funeral of the
deceased. In 1995, the trial court ruled in favor of Yee. Nicdao appealed to the CA, which the CA affirmed
the decision of the trial court.

ISSUE: Whether or not Yee can claim half the amount acquired by Nicdao.

RULING: No. SC held that the marriage between Yee and Cariño falls under the Article 148 of the Family
Code, which refers to the property regime of bigamous or polygamous marriages, adulterous or
concubinage relationships. Yee cannot claim the benefits earned by the SPO4 as a police officer as her
marriage to the deceased is void due to bigamy. She is only entitled to the properties acquired with the
deceased through their actual joint contribution. Wages and salaries earned by each party belong to him
or her exclusively. Hence, they are not owned in common by Yee and the deceased, but belong to the
deceased alone and Yee has no right whatsoever to claim the same. By intestate succession, the said
“death benefits” of the deceased shall pass to his legal heirs. And, Yee, not being the legal wife, is not one
of them. As regards to the first marriage, the marriage between Nicdao and SPO4 is null and void due to
absence of a valid marriage license. Nicdao can claim the death benefits by the deceased even if she did
not contribute thereto. Article 147 creates a co-ownership in respect thereto, entitling Nicdao to share
one-half of the benefits. As there is no allegation of bad faith in the first marriage, she can claim one-half
of the disputed death benefits and the other half to the deceased' to his legal heirs, by intestate
succession. The marriage between Yee and SPO4 is likewise null and void for the same has been
solemnized without the judicial declaration of the nullity of the marriage between Nicdao and
SPO4. Under Article 40, if a party who is previously married wishes to contract a second marriage, he or
she has to obtain first a judicial decree declaring the first marriage void, before he or she could contract
said second marriage, otherwise the second marriage would be void. However, for purposes other than
to remarry, no prior and separate judicial declaration of nullity is necessary.

BOBIS V BOBIS (1)

Petitioner: IMELDA MARBELLA-BOBIS


Respondent: ISAGANI D. BOBIS
FACTS:
• October 21, 1985, first marriage with one Maria Dulce B. Javier. Not annulled, nullified or terminated
• January 25, 1996, second marriage with petitioner Imelda Marbella-Bobis
• Third marriage with a certain Julia Sally Hernandez
• February 25, 1998, Imelda Bobis filed bigamy
• Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity
of his first marriage on the ground that it was celebrated without a marriage license
• Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first
marriage before entering into the second marriage
*After petitioner sued for bigamy, it’s just when the respondent filed a declaration of absolute nullity.

ISSUE: Whether or not the subsequent filing of a civil action for declaration of nullity of a previous
marriage constitutes a prejudicial question to a criminal case for bigamy
HELD: A prejudicial question is one which arises in a case the resolution of which is a logical antecedent
of the issue involved therein. It is a question based on a fact distinct and separate from the crime but so
LM 11 | kathromina

intimately connected with it that it determines the guilt or innocence of the accused. Its two essential
elements are: (a) the civil action involves an issue similar or intimately related to the issue raised in the
criminal action; and (b) the resolution of such issue determines whether or not the criminal action may
proceed. In Article 40 of the Family Code, respondent, without first having obtained the judicial
declaration of nullity of the first marriage, cannot be said to have validly entered into the second marriage.
In the current jurisprudence, a marriage though void still needs a judicial declaration of such fact before
any party can marry again; otherwise the second marriage will also be void. The reason is that, without a
judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar,
respondent was for all legal intents and purposes regarded as a married man at the time he contracted
his second marriage with petitioner. Any decision in the civil action for nullity would not erase the fact
that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision
in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial
question
*Parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts
having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond
question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy
(Landicho v. Relova)

BOBIS V BOBIS (2)

FACTS: On October 21, 1985, respondent Isagani Bobis contracted a first marriage with Ma. Dulce
Javier. With said marriage not yet annulled, nullified nor terminated, he contracted a second marriage
with herein petitioner Imelda Marbella (on Jan. 25, 1996), and a third marriage with certain Julia
Hernandez, thereafter.
Petitioner then filed a case of bigamy against respondent on Feb. 25, 1998, at the RTC of Quezon
City. Thereafter, respondent initiated a civil action for the declaration of absolute nullity of his first
marriage license. He then filed a motion to suspend the criminal proceeding for bigamy invoking the civil
case for nullity of the first marriage as a prejudicial question to the criminal case. The RTC granted the
motion, while petitioner’s motion for reconsideration was denied.

ISSUE: Whether or not the subsequent filing of a civil action for declaration of nullity of a previous
marriage constitutes a prejudicial question to a criminal case for bigamy.

HELD: Any decision in the civil case the fact that respondent entered into a second marriage during the
subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of
the criminal charge. It is therefore not a prejudicial question. Respondent cannot be permitted to use his
malfeasance to defeat the criminal action against him.
A prejudicial question is one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein. It is a question based on a fact distinct and separate from the
crime but so intimately connected with it that it determines the guilt or innocence of the accused. It must
appear not only that the civil case involves facts upon which the criminal action is based, but also that the
resolution of the issues raised in the civil action would necessarily be determinative of the civil
case. Consequently, the defense must involve an issue similar or intimately related to the same issue
raised in the criminal action and its resolution determinative of whether or not the latter action may
proceed. Its two essential elements are (a) the civil action involves an issue raised in the criminal action;
and (b) the resolution of such issue determines whether or not the criminal action may proceed.
In the case at bar, the respondent’s clear intent is to obtain a judicial declaration of nullity of his
first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He
LM 11 | kathromina

cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is disregard
Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply
claiming that the first marriage is void and the subsequent marriage is equally void for lack of a prior
judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of
a requisite—usually the marriage license—and thereafter contract a subsequent marriage without
obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such
scenario would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova, 22
SCRA 731(1968):
Parties to a marriage should not be permitted to judge for themselves its nullity, [as] only
competent courts have such authority. Prior to such declaration of nullity of the first marriage is beyond
question. A party who contracts a second marriage then assumes the risk of being prosecuted for
bigamy.
A prejudicial question does not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution
of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted
that all the essential elements of a crime have been adequately alleged in the information, considering
that the prosecution has not yet presented single evidence on the indictment or may not yet have rested
its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect
a question on the merits of the criminal charge through a non-criminal suit.
Ignorance of the existence of Article 40 of the Family Code cannot be successfully invoked as an
excuse. The contracting of a marriage knowing that the requirements of the law have not been complied
with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal
Code. The legality of a marriage is a matter of law and every person is presumed to know the law. As
respondent did not obtain the judicial declaration of nullity when he entered into the second marriage,
why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal
prosecution and subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity
of the previous marriage, he can do it as a matter of defense when he presents his evidence during the
trial proper in the criminal case.
The elements of bigamy are (1) the offender has been legally married; (2) that the first marriage
has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been
judicially declared presumptively dead; (3) that he contracts a subsequent marriage; and (4) the
subsequent marriage would have been valid had it not been for the existence of the first. The exceptions
to prosecution for bigamy are those covered by Article 41 of the Family Code and by PD 1083 otherwise
known as the Code of Muslim Personal Laws.

e. What is a voidable bigamous marriage?

 Voidable Bigamous Marriage; Presumptive Death – Judicial declaration of presumptive


death is now authorized for purposes of remarriage. The present spouse must institute a
summary proceeding for declaration of presumptive death of he absentee. The ordinary
rules of procedure in trial will not be followed. Affidavits will suffice with possible
clarificatory examinations of affiants if the Judge finds it necessary for a full grasp of the
facts.

f. Discuss Article 41 of the Family Code.


LM 11 | kathromina

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

g. Discuss Article 42 of the Family Code.

 Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous marriage or declaring it void ab
initio.
 A sworn statement of the fact and circumstances of reappearance shall be recorded in
the civil registry of the residence of the parties to the subsequent marriage at the instance
of any interested person, with due notice to the spouses of the subsequent marriage and
without prejudice to the fact of reappearance being judicially determined in case such
fact is disputed.

h. How may the subsequent bigamous marriage be terminated?

 Under the present article termination is automatic upon the recording of the affidavit of
reappearance with the appropriate civil registry and with notice to the spouses of the
subsequent marriage.
 The recording shall be in the civil registry of the residence of the parties to the subsequent
marriage at the instance of any interested party with notice to the former and without
prejudice to any issue raised against the fact of reappearance if this is disputed.
 The affidavit may be executed by the absent spouse or by any interested person. If the
affidavit is false and is recorded, this can be questioned in court.

i. Discuss Article 43 of the Family Code.

 Art. 43. The termination of the subsequent marriage referred to in the preceding Article
shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be
considered legitimate;
(2) The absolute community of property or the conjugal partnership, as the case may be,
shall be dissolved and liquidated, but if either spouse contracted said marriage in bad
faith, his or her share of the net profits of the community property or conjugal partnership
property shall be forfeited in favor of the common children or, if there are none, the
children of the guilty spouse by a previous marriage or in default of children, the innocent
spouse;
LM 11 | kathromina

(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in
bad faith as beneficiary in any insurance policy, even if such designation be stipulated as
irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified
to inherit from the innocent spouse by testate and intestate succession.

j. Discuss Article 44 of the Family Code.

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