Chapter 3- Void and Voidable Marriages Overview

What are *void marriages under ARTICLE 37* (Void by incestuous marriages, whether the parties be legitimate or illegitimate)

- Ascendants and descendants of any degree - Brothers and sisters whether full or half blood

What are *void marriages under ARTICLE 38* (Void marriages by reason of public policy)

- Between collateral blood relatives whether legitimate or illegitimate up to 4th civil degree - Step parents and step children - Parents-in-law and children-in-law - Adopting parent and adopted child - Surviving spouse of the adopting parent and the adopted child - Surviving spouse of the adopted child and the adopter - Adopted child and legitimate child of the adopter - Between adopted children of the same adopter - Between parties where one with the intention to marry the other, killed the other person's spouse or his or her own spouse.

*What are other VOID MARRIAGES which are considered void ab initio even if not included in the enumerations under Articles 35, 36, 37, 38 and 44 of the Family Code?

- Marriage of same sex if celebrated in the Philippines - Marriage where consent is totally lacking (shotgun marriage) - Common law marriages - Marriage by proxy - Marriage where exchange of vows was not done personally in the presence of a solemnizing officer

What are *void marriages under ARTICLE 35* (Void by lack of legal requisites)

- Parties below 18 y.o. even with parental consent - Solemnized by unauthorized officer - Bigamous or polygamous marriages - Obtained thru fraud - Void under Article 53 (lack of judicial declaration of nullity of marriage)

What are *void marriages under ARTICLE 36* (Void by psychological incapacity)

- Those contracted by any party who at the time of celebration was psychologically incapacitated to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after its solemnization.

What are *void marriages under ARTICLE 41 and 44* (Void by spouse's disappearance and well-founded belief of the his death, and failure to comply with the procedures therein)

- Those subsequent marriage referred to in Article 41 of the Family Code if both parties had acted in bad faith. In this case, it is void by spouse's disappearance and well-founded belief of the his death, and failure to comply with the procedures therein.

What are *void marriages under ARTICLE 40* (Void by failure to legally comply with the nullification of prior marriage)

- Where either of the parties to a subsequent marriage is also a party to a prior marriage which is void ab initio but has not been declared as such in a final judgment by the court. -

Article 35, Family Code (Void by lack of legal requisites)

A man and a woman below 18 escaped their homes to contract marriage without their parent's consent. The catholic priest turned out to be not a priest at all, for in fact, he is known in the barangay to have polygamous and bigamous marriages. To save face, the wedding pushed through, despite them knowing that it is fraudulent. Three years later, they sought for judicial declaration of nullity because finally they have decided to part ways.

What is the difference between void and voidable marriages? (as to whether it may be questioned after death of a party?)

A void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid.

What is the difference between void and voidable marriages? (as to its assailment?)

A voidable marriage can be assailed only in a direct proceeding for that purpose and not collaterally while a void marriage may be attacked collaterally.

What is the difference between void and voidable marriages? (as to its ratification)

A voidable marriage can be generally ratified or confirmed by free cohabitation or prescription while a void marriage can never be ratified and is not subject to prescription.

What is the difference between void and voidable marriages? (as to its prescriptibility?)

Action or defense for nullity (void marriage) is imprescriptible, while in voidable marriages, the action prescribes for 5 years upon discovery of the ground for its voidability.

Void marriages under Article 36 and 37 (Alden, 36 years old)

Alden, 36 years old-- is a psychologically incapacitated person because even before he contracted his marriage with Maine, he actually by his own incapacity cannot comply with its marital obligations.

Void marriages under Article 36 and 37 (Maine, 37 years old)

Meanwhile it was later discovered that Maine is actually Alden's relative by blood. Therefore, the relationship they had was incestuous. To take Maine's place, Alden prayed not to be Maine's ascendant or descendant (whether her father or son), or brother or sister whether it be full or half blood.

Does the said regulation (AM 02-11-10-SC) mean that other interested parties may no longer attack a void marriage?

No--because a void marriage is still subject to collateral attack. For purposes other than remarriage, such as but not limited to 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 in a suit not directly instituted to question the same so long as it is essential to the determination of the case.

What is the difference between void and voidable marriages? (as to its legal effects with respect to voidable marriages)

Property regime governing voidable marriages is generally absolute community or conjugal partnership and the children conceived before its annulment are legitimate.

Who can file petition for declaration of nullity? (AM 02-11-10-SC or the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages)

Under the said administrative matter by the SC, petition for declaration of absolute nullity of void marriages may be filed *solely by the husband or wife*, which, in effect has modified the ruling in Ninal v. Badayog which allowed the heirs to file such petition.

What is the difference between void and voidable marriages? (as to its legal effect)

Void marriage is deemed never to have taken place at all and cannot be the source of rights; while a voidable marriage is considered valid and produces all its civil effects, until set aside by a final judgment of a competent court in an action for annulment.

What is the difference between void and voidable marriages? (as to its legal effects with respect to void marriages)

Void marriages have no legal effects except those declared by law concerning the properties of the alleged spouse regarding co-ownership or ownership through actual joint contribution and its effects on the children born to such marriage under Art. 50 in relation to Arts 44, 51, 53 and 54 of the Family Code.