Family Code: Void and Voidable Marriages

How long must a spouse be absent before he is presumed dead for purposes of opening his succession?

10 years. If he disappears after the age of 75 then 5 years only. If he disappears under circumstances with high risk of death, 4 years only. If he turns out to be alive, he shall be entitled to the balance of his estate after the payment of all his debts.

What is the reason for the prohibition of marriages under Art. 38 (against public policy)?

- They will not serve the fundamental objective of nurturing a stable family unit that can effectively be the foundation of society

What are cases when a direct attack on the nullity of a marriage must be undertaken first?

1) Purposes of remarriage 2) Revocation of a donation propter nuptias given to one or both of the parties on the ground that the marriage is void; JDNOM must be first obtained.

Good faith and bad faith are irrelevant except in two cases. State them.

1) Solemnizing officer 2) Presumptive death for remarriage (Art. 41)

CASE: People v. Cobar What are the requisites for bigamy?

1. Offender has been legally married. 2. The marriage has not been legally dissolved or in case his spouse is absent, the absent spouse could yet be presumed to be dead. 3. Offender contracts a 2nd or subsequent marriage 4. The 2nd marriage has all the essential requisites for validity.

Provide example of when a collateral attack can be maid to assail the validity of the marriage.

A files a case against B for support. B claimed that A is not entitled to support because the marriage is void. The court that A is not entitled to be supported. The marriage between A and B is declared void ab initio.

Art. 36. What is psychological incapacity?

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 likewise be void even if such incapacity becomes manifest only after its solemnization.

Art. 41. When can one obtain a judicial declaration of presumptive death?

A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse has been absent for 4 consecutive years and the spouse present has a well-founded belief that the absent spouse is already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Art. 391 of the CC, an absence of only 2 years shall be sufficient. For purposes of contracting a subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of the reappearance of the spouse.

Art. 45. What are the grounds for annulment?

A marriage may be annulled for any of the following causes, existing at the time of the marriage: 1. That the party in whose behalf is sought to have the marriage annulled was 18 years old or over but below 21, and the marriage was solemnized without the consent of the parents, guardian, or person having substitute parental authority over the party, in that order, unless after attaining the age of 21, such party freely cohabited with each other and both have lived together as husband and wife; 2. That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; 3. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; 4. That the consent of either party was obtained by force, intimidation, or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife; 5. That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; 6. That either party was afflicted with a sexually transmissible disease found to be serious and appears to be incurable.

Who may file a a sworn statement of reappearance of an absent spouse?

Any interested party: - Parents, children, present spouse, and even the subsequent spouse; parents and children of the subsequent spouse

Art. 46. What constitutes fraud under Art. 45?

Any of the following circumstances shall constitute fraud referred to in No.3 of the preceding Article: 1. Non-disclosure of a previous conviction by final judgement of the other party of a crime involving moral turpitude; 2. Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; 3. Concealment of any sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or 4. Concealment of drug addiction, habitual alcoholism, or homosexuality or lesbianism existing at the time of marriage. No other misrepresentation or deceit as to character, health, rank, fortune, or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage.

All instances when marriage is void ab initio.

Art. 35, 36, 37, 38, 40, 41, 44, and 54 in relation to Art. 52 of FC.

How is psychological incapacity determined?

Case-to-case basis, according to the facts of the case.

Art. 54. Are children born before JDAOM and JDNOM under Art. 36 legitimate?

Children conceived or born before the judgement of annulment or absolute nullity of the marriage under Art. 36 has become final and executory, shall be considered legitimate. Children conceived or born of the subsequent marriage under Art. 53 shall likewise be considered legitimate.

What is the order of forfeiture of donations?

Common children Children of guilty spouse Children of innocent spouse

Provide examples of accepted disorders of P.I.

Dependent personality disorder Anti-social and narcissistic personality disorder - with lack of loyalty to persons or sense of moral values Hyperesthesia - no real freedom of sexual choices Schizophrenia Nymphomania Inadequate personality disorder

Distinguish between direct attack and collateral attack.

Direct attack - the nullity of the marriage is the principle issue; only husband and wife can themselves make a direct attack of the marriage. Collateral attack - nullity of marriage can be asserted even if it is not the main or principal issue of the case.

Art. 49. Support of children after annulment.

During the pendency of the action and in the absence of adequate provisions in a written agreement between spouses, the court shall provide for support of the spouses and the custody of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent who they wish to remain as provided in Title IX. It shall also provide for appropriate visitation rights of the other parent.

Art. 53. What must you do if you want to remarry after annulment if your first marriage?

Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article, otherwise the subsequent marriage shall be void.

What are the circumstances under Article 391 of the Civil Code?

Extraordinary situations of death: 1. Vessel was lost during voyage 2. Airplane missing 3. Soldier went to war and never seen again

True or false: Personal medical or psychological examination is a requirement for the declaration of P.I.

FALSE. Extremely helpful but the presence of expert testimony does not immediately mean the decree will be granted.

True or false: Sterility is considered impotency.

False.

When does the Entry of Judgement for a JDNOM or JDAOM become final?

Final upon the expiration of 15 days from receipt of the parties of the decision, unless there is a motion for consideration or appeal filed. Issued only after the registration of Entry of Judgement in the proper LCRs and of the approved partition and distribution of properties of the spouses in the proper registry of deeds and delivery of presumptive legitimes.

Give examples of people you can't marry under Article 38 (1).

First cousin Uncle or aunt Great aunt or great uncle Niece or nephew Anybody in the descending or ascending line

Who has the burden of proof to prove unsound mind as a ground for annulment?

He who alleges insanity.

Art. 44. What happens if both parties acted in bad faith in a subsequent marriage?

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.

What are the reasons for prohibition of incestuous marriages?

Immoral Recessive abnormality (biological) Social and psychological issues

Art. 48. How does the State prevent collusion in cases of annulment?

In cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed. In all cases referred to in the preceding paragraph, no judgement shall be based on stipulation of facts or confession of judgement.

Art. 51. Presumptive legitimes of common children

In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgement of the trial court, shall be delivered in cash, property, or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian, or the trustee of their property, may ask for the enforcement of judgement. The delivery of presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of the annulment or absolute nullity shall be considered as advances in their legitimes.

When does the period to file for declaration of nullity of marriage prescribe?

It doesn't. Nullity of marriage is imprescriptible.

Art. 37. What are the marriages void for being incestuous?

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

What does a well-founded belief that a person is dead mean?

Must use every resource needed to prove death. Proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse

Can void marriages be subject to ratification?

NO. A void marriage can never be ratified or cured by acts of the contracting parties; not can acquiescence or estoppel apply.

A and B are married. B died. A then married B's father, C. Is the marriage between A and C valid?

NO. Even if your spouse dies, their parents will be your parent-in-laws forever. Therefore, the marriage is against public policy (Art. 38(3). Consanguinity is not capable of dissolution.

CASE: Larson v. Larson A and B get married. 2 years later, A starts showing symptoms of insanity. There is no proof that A was insane during the marriage ceremony. Ground for annulment?

NO. Must exist at the time of marriage.

CASE: Fujiki v. Marinay Can 2nd wife of a subsequent, bigamous marriage file a case for JDNOM?

No only the the spouses in the subsisting first marriage can file a case for JDNOM of a subsequent bigamous marriage. The 2nd wife in the subsequent marriage cannot file the case considering her marriage. is void.

A and B agreed to declare JDNOM of marriage. Is this collusion?

No unless there is fabrication or suppression of evidence between the two parties.

A files for petition for JDNOM. B fails to appear in court. Is this collusion?

No, failure to appear in hearing is not collusion so the hearing will proceed.

CASE: Caltex v. Villaneuva A sailor likes to watch storms in his boat. One day he goes on top of the ship to watch a storm but he doesn't return. However, the ship is still present. Can the sailor's wife file for JDPD after 2 years?

No. 4 years because the vessel is not missing.

CASE: Santos v. Santos Wife goes abroad to work in the US and does not contact her husband at all. She only calls him once in 7 months to say she is coming home but never does. Is there a ground for psychological incapacity?

No. Absence for a long period of time does not necessarily prove psychological incapacity nor shows that the wife fails to understand the obligations of marriage.

Are there any other grounds for annulment other than what is listed in Art. 45?

No. Grounds are exclusive.

True or false: Dullness of mind, eccentricities, dementia, or weakness of intellect constitute unsound mind.

No. It must relate specifically to the contract of marriage in order to affect it; if such mental illness does not affect the understanding of a marriage contract, such cannot be used as a ground for annulment.

Are there moral or exemplary damages in a psychological incapacity case?

No. Non-cognizance of one's essential marital obligation at the time of the marriage ceremony negates bad faith.

CASE: Reyes v. Reyes A filed for petition of nullity of marriage on the ground that her husband, B, was psychologically incapacitated. CA ruled that the fact that B was taking therapy, the disorder is curable. Valid?

No. SC held that the fact he is undergoing therapy, the disorder is incurable. If he stops taking therapy, he will still have the disorder.

CASE: Maquilan v. Maquilan A filed a case against B for JDNOM. A and B decided to talk to each other and have a settlement of their property without waiting for the decision. Is there collusion?

No. There was no corrupt agreement on the merits of the ground.

Is a person who is deemed psychologically incapacitated barred from marrying again?

No. They may marry again.

What is a legitime?

Part of the testator's property which he cannot dispose of because law has reserved it for certain hairs (Compulsory heirs). Protects the children against future subsequent marriages.

What kind of evidence is needed to prove the presence of vitiated consent?

Preponderance of evidence.

Explain the significance of Republic v. CA and Molina (Molina Case).

Provides guidelines for invoking and proving P.I. 1. The burden of proof belongs to the one who claims the P.I. 2. Root cause must be a) clinically or medically identified b) alleged in the complaint, c) sufficiently proven by experts, d) Clearly explained in the decision, e) Must be psychological but manifestation may be physical. 3. Existing at the time of the celebration of marriage 4. Medically and clinically incurable 5. Gravity. Inability to resume essential obligations of marriage 6. Essential obligations Art. 68-71 7. Church given great respect

Distinguish between question of fact and question of law in regards to solemnizing officer.

Question of fact: Parties believed that solemnizing officer had the authority. Therefore, there is good faith. Question of law: Parties didn't know that the law required an authorized solemnizing officer. Ignorance of the law not an excuse. Marriage is void.

CASE: Fujiki v. Marinay A Filipina married 2 Japanese men. The Japanese court issued a JDNOM for the 2nd marriage. Japanese husband #1 also files a petition for recognition of foreign judgement in the Philippines. Decide.

SC held that the petition for recognition of foreign judgement was the right procedure, given that bigamy is also against public policy in the Philippines. - Judgement of the foreign court must be proven by the petitioner through 1) an official publication or 2) a certification or copy attested by the officer who custody of the judgement. - No re-litigation of the merits. Rather the Philippine court will only need to determine 1) whether the foreign judgement is inconsistent with an overriding public policy in the Philippines and 2) whether any alleging party is able to prove an extrinsic ground to repel the foreign ground.

What does psychological incapacity refer to?

Senseless, protracted, constant refusal to comply with all the essential marital obligations.

CASE: Republic v. Olaybar A wanted to get married, but discovered that in her LCR, the entries pertaining to her stated that she was already married to a particular man; there was even a marriage certificate which she allegedly signed. However, she did not know the man at all; her signature was forged; she had no knowledge of the wedding ceremony at all; and the alleged bride was an impostor. What is A's remedy?

She needs to file for a Petition for the Correction of Entries NOT JDNOM. There was no actual marriage.

Distinguish between a subsequent void marriage and a void bigamous marriage.

Subsequent void marriage: A person who marries without a JDN for his 1st marriage. Failed to comply with the formal requisites of law. (40, 52, 53) Void bigamous marriage: 2 valid marriages (Art. 35(4) and Art. 41). Different opinion: Nicdao Carino vs. Carino Mercado v. Mercado Marriage without a JDN is still a criminally bigamous marriage.

True or false: P.I can only be proven by indicators and external manifestations of the person claimed to be psychologically incapacitated.

TRUE

Art. 40. What is a requirement for remarriage?

The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely on a final judgement declaring such previous marriage void. - If a JDNOM were obtained and not registered with LCR and the liquidation, partition, and distribution of the properties is likewise not registered, any subsequent marriage is void.

Art. 47. Who may file for JDAOM? What is the prescription period for petition for annulment?

The action for annulment of marriage must be filed by the following persons and within the persons indicated herein: (1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage.

Art. 39. When does an action for nullity of marriage prescribe?

The action or defense for the declaration of absolute nullity of marriage shall not prescribe.

CASE: Silva v. CA Mother wants to take visitation rights away from father because he is immoral and has a paramour. Decide.

The court cannot take away the inherent and natural right of a father to rear his child. A few hours with his child would not so gravely affect the child's morality.

Art. 50. What are the effects of JDAOM on property, donations, and insurance policies of the parties?

The effects provided for in paragraphs 2, 3, 4, and 5 of Article 43 and in Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgement under Article 40 and 45. The final judgement in such cases shall provide for the liquidation, partition, and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well of the ACP or CPG shall be notified of the proceedings of the liquidation. In the partition, the conjugal dwelling and lot on which it is situated shall be adjudicated with Article 102 and 129.

Art. 38. What are the marriages void for being against public policy?

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 4th civil degree 2. Between step-parents & step-children 3. Between parents-in-law & children-in-law 4. Between the adopting parents & the adopted child 5. Between the surviving spouse of the adopted parents & the adopted child 6. Between the surviving spouse of the adopted child & the adopter 7. Between an adopted child & the legitimate child of the adopter 8. Between adopted children of the same adopter 9. Between parents where one, with the intention to marry the other, killed that other person's spouse or his or her own spouse

Art. 35. What marriages are void from the beginning?

The following marriages shall be void from the beginning: 1) Those contracted by any party below 18 years of age even with the consent of the parents or guardians; 2) Those solemnized by any person not legally authorized to perform 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; 3) Those solemnized without a license, except those covered by the preceding Chapter; 4) Those bigamous and polygamous marriages not falling under Art. 41; 5) Those contracted through mistake of one contracting party as to the identity of the other; 6) Those subsequent marriages that are void under Art. 53.

Art. 52. Steps after obtaining JDNOM or JDAOM.

The judgement of annulment or absolute nullity of marriage, the partition, and distribution of the properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registries and registries of property; otherwise the same shall not affect 3rd persons.

What parent do children below 7 years go to after annulment?

The mother (Art. 213 FC)

Art. 42. What happens to a subsequent marriage through JDPD when the absent spouse disappears?

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 judgement 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.

Art. 43. What are the effects of the termination of the subsequent marriage due to reappearance of absent spouse?

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 and their custody and support in case of dispute shall be decided by the court in a proper proceeding; 2. The absolute community of property or 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 shall be forfeited in favor of the common children, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; 3. Donations by reason of marriage shall remain valid, except 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 a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or intestate succession.

Fill in the blank. Decision must be based on _____________ of evidence.

Totality of evidence

True or False: Generally, in void marriages the property regime is co-ownership.

True. Exception: Art. 40 FC. Property regime becomes ACP or CPG.

True or False: There is no injured party in nullity cases?

True. Different than annulment cases.

True or false: An illegitimate child can marry the adopted child.

True. Not against public policy.

True or false: Decisions of church tribunals are merely persuasive. Not binding on civil courts.

True. The provision is taken from Canon Law so it is persuasive.

What is selective impotency? Is it ground for psychological incapacity?

When a person may be psychologically impotent with one person, but not with another. Ground for P.I.

What is a "valid bigamous marriage"?

When the spouse reappears but no one files an affidavit of reappearance.

Can you marry your half-blood niece or nephew or half-blood uncle or aunt?

YES. In Re Simms Estate: The grounds for Art. 38 are exclusive. If the legislature intended to prohibit it, they should've said so.

A and B are married. A performs well in work and mentally capable in his professional life. However, he is completely irresponsible in his family life and does not mind his family or wife AT ALL. Ground for psychological incapacity?

Yes.

CASE: Mallion v. Alcantara A files a petition for nullity of marriage on the ground of psychological incapacity. The petition is denied. After, A files another petition for nullity of marriage on the ground of the absence of a marriage license. Does res judicata apply?

Yes. A case for nullity involves only 1 cause of action, so all other grounds must be listed in that 1 cause. Not having invoked the 2nd ground in the 1st place, the petitioner is considered to have admitted the validity of the celebration of the marriage, thereby waiving such defect. NOTE: Sta. Maria thinks this is wrong for valuing procedural over substantive law. He argues that no amount of waivers, ratification, estoppel, etc. can validate a void marriage.

Are children born in marriages under psychological incapacity legitimate?

Yes. Art. 54

CASE: Abbas v. Abbas A files for petition of nullity of marriage merely to evade a bigamy case. Valid?

Yes. Doctrine of unclean hands does not apply.

Adam spends all his time with his friends and parents. His devotion to his family is subordinated to his friends. Ground for P.I?

Yes. Duties of parents in relation to their children (Art. 220, 221, 225 FC). Failure to do so is good indicator of PI.

Julie is afraid of children. She refuses to engage in sexual relations with her husband. Is there ground for P.I?

Yes. Procreation is considered an essential obligation. Senseless protracted refusal to engage in sex is a ground for P.I.

Affinity is a connection formed by marriage. When a marriage by affinity is annulled or nullified, the relationship by affinity is terminated. A and B are step siblings. May they get married while their parents are still married?

Yes. This relationship by affinity is not included in the prohibition.

Can you marry your second cousin?

Yup!!