VOID AND VOIDABLE MARRIAGES

Nature Void marriage without legal effect; deemed never to have taken place at all cannot be ratified or confirmed can be attacked collaterally may be questioned even after death of one of the parties may be challenged by any proper interested party co-ownership exist children are illegitimate Art 35 Marriages that are void ab initio 1. Contracted by any below 18 yrs old even with parent consent Voidable Marriage valid until annulled by competent court generally made perfectly valid by free cohabitation can de questioned only in direct proceedings can no longer be attacked after death of one of the parties can be questioned only by a party to it absolute community of property in the absence of marriage settlement adopting another regime children are legitimate if conceived before the annulment of marriage - essential requisite of legal capacity is lacking

2. A marriage solemnize by a person not legally authorized to perform marriages 3. Marriages without marriage license

- valid if either or both of contracting parties believed in good faith that said person had the legal authority to do so exemptions: - marriage in articulo mortis (art 27) - marriage in inaccessible parts (art 28) - marriage by a ship captain or airplane chief (Art 31) - marriage by a millitary commander (art 32) - marriage by muslims or among members of ethnic cultural communities (art 33) - marriage by parties who have cohabited for at least 5 years

4. Bigamous or polygamous marriages not falling under art 41 5. Marriage through a mistake of identity 6. Subsequent marriages that are void under art 53 - Art 53 provides "Either of the former spouses may marry again after complying with the requirements of the immediately preceding article (art 52, the requirement of recording in the civil registry of property of the judgement of annulment or absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes); otherwise the susequent marriage shall be null and void. - art 35 (see above - exemptions on marriage license req)

Other void marriages

Art.4 - in the absence of any essential or formal requisites shall render the marriage void ab initio except stated in art 35 Art 36 - which provides that marriage where any party is psychologically incapacitated

3 basic requirements: (1) gravity (2) juridical antecedence (3) incurability be present Art 37- Incestous marriages, whether relationship between parties be legitimate of illegitimate; (1) ascendants and descendants of any degree and (2) bothers and sisters, whether of full or half blood Art 38 - Void marriages by reason of public policy: (1) between fourth civil degree relatives (2) between step-parents and step-children (3) between parents-in-law and children-inlaw (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 the 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 person's spouse or his or her own spouse Action to declare a void marriage void is imprescriptibl e Judicial declaration of Nullity required under the family code Art 39 provides that "the action or defense for the declaration of absolute nullity of a marriage shall not prescribe (as emended by RA 8533)

-marriage contracted by persons related by blood, even relations be illigitimate or only half-blood - incestous marriages contravene the voice of nature, degrades the family, againts decency and morals, and absolutely prohibited

-because a void marriage is deemed never to have taken place at all - before the amendment, prescriptive period is 10 yrs after the effectivity of Family Code -the reason is one cannotdetermine for himself whether his marriage is valid or not and that a final judgment for the declaration of nullity of marriage is needed

Art 40 - it is a requirement, for purposes of remarriage, that a judicial declaration of nullity of the marriage be secured, otherwise,subsequent marriage is void

Subsequent marriage Presumptive death

Art 41 - Subsequent marriage during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for 4 consecutive yrs and spouse present had a well-founded belief that the absent spouse was already dead. For purposes of contracting a subsequent marriage, the spouse must institute a summary proceeding for the declaration of presumptive death of the absentee

Effect of reappearance of absent spouse Effect of termination of subsequent marriage by reappearance

-Four requisites for the declaration of presumptive death: 1. The absentee spouse had been missing for 4 consecutive yrs, or 2 yrs if the disappearance occured where there is danger of death. 2. the present spouse wishes to remarry, 3. the present spuse had a well-founded belief that the absentee is dead 4. the present spouse files a summary proceedings for the declaration of presumptive death of the absent spouse Art 42 - Subsequent marriage shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse Art. 43 provides the following effect: 1. on the children - conceived before termination of marriage, are legitimate 2. on poperty regime - absolute community of property or the conjugal partnership shall be dissolved and liquidated. If one acted in bad faith, his share shall be forfeited in favor of common children, if there are none, to the children of guilty spouse, if no children, the innocent spouse 3. On donations by reason of marriage - shall remain valid, if donee is in bad faith, donations to donee are revoked by operation of law 4. On insurance pplicy - innocent spouse may revoke the designation of the guilty spouse as beneficiarty, even if stipulation is irrevocable 5. On succession - spouse acted in bad faith shall be disqualified to inherit Grounds for annulment of marriage - Art 45

-valid subsequent marriage: 1. absent spouse must have been absent for four or two consecutive yrs: - if ordinary absence - for 4 consecutive yrs - if due to extraordinary absence - missing for 2 consecutive yrs where there is danger of death attendant to the disappearance as when the absent spouse was - on board a vessel lost during sea voyage, or an airplane which is missing - in the armed forces and had taken part in the war - in danger of death under other circumstances 2. the present spouse must not know the whereabouts of the absent spouse 3. there must be a well-founded belief that the absent sppouse was already dead 4. there must be institution of a summary action for the declaration of presumptive death of the absent spouse 5. there must be a final judgment declaring the absent spouse presumtivelly dead

Voidable marriages

defect can be cured by free cohabitation offended party can file the petition for annulment

1. lack of parental consent, 18 to below 21

2. either party was of unsound mind (insanity)

3. consent obtained by fraud

- after attaining the age of 21, the party freely cohabited with other as husband and wife, the marriage is ratified - marriage can be ratified when such party after coming to reason, freely cohabited with other as husband and wife -Art 46 provides circumstances that constitutes fraud: 1. non disclosure of previous conviction 2. concealment of pregnancy 3. concealment of sexually transmissible disease 4. concealment of drug-addicition, habitual alcoholism, homosexuality or lesbianism

4. consent obtained through force, intimidation or undue influence 5. either of the party was physically incapable of consummating the marriage 6. either of the party was afflicted of sexually transmissible disease Prescriptive period for filing of annulment Art 47 - provides who and when to file annulment Who may file and when

1. lack of parental consent, 18 to below 21

2. either party was of unsound mind (insanity)

3. consent obtained by fraud 4. consent obtained through force, intimidation or undue influence 5. either of the party was physically incapable of consummating the marriage 6. either of the party was afflicted of sexually transmissible disease

- the minor, within 5 yrs after reaching the age of 21 - the parent of guardian - before the minor reach the age of 21 - the sane spouse who had no knowledge of the others insanity any time before the death of any party - any relative, or guardian or person having legal charge of the insane, at any time before the death of any party - insane spouse during lucid interval, or after regaining sanity -injured party must file action within 5 years after the discovery of fraud -injured party must file action within 5 years from the time the force, intimidation or undue influence disappeared or ceased -injured party must file the action within 5 years after the marriage - the injured party must bring action 5 years after the marriage