PERSONS AND FAMILY RELATIONS  Company policy, in case two of their employees decide to get marries

to each other, one of them should resign, SC held that the act of the
 A15 – Nationality Rule: regardless of where a citizen of the Philippines company in enforcing such policy is illegal as it failed to prove a
might be, he or she will be governed by Philippine laws with respect to legitimate business concern especially so when the asserted policy is
his or her family rights and duties, or to his or her status, condition and premised on the mere fear that employees married to each other will
legal capacity. be less efficient.
 A16 – Law Governing Real Properties: the law of the country where
the real property is situated shall be the governing law over such real  LEGISLATIVE CONTROL OF MARRIAGE
property. If a person attests the execution of a last will and testament, to whose
However, with respect to the order of succession and the amount of spouse a devise or legacy is given by such will, such devise or legacy
successional rights, whether in intestate or testamentary succession, shall, so far only as concerns such spouse or anyone claiming under
they shall be regulated by the national law of the deceased and this is such spouse, be void, unless there are three other competent
applicable regardless of the nature of the property. witnesses to such will.
 A17 – Extrinsic Validity: the forms and solemnities of public An absolute condition not to contract a first or subsequent marriage
instruments, wills and contracts shall be governed by the laws of the made in a last will and testament on an instituted voluntary heir legatee
country where they are executed. or devisee shall be considered as not written unless such condition
has been imposed on the widow or widower by the deceased spouse,
NATURAL PERSONS or by the latter’s ascendants or descendants.
 A41 – the fetus is considered born if it is alive at the time it is
completely delivered from the mother’s womb. However, if the fetus  LAW GOVERNING VALIDITY OF MARRIAGE
has an intra-uterine life of less than seven (7) months, it is not deemed It is to be tested by the law in force at the time the marriage was
born if it dies within twenty-four (24) hours after its complete delivery contracted.
from the maternal womb. This has been amended by the Child and Under the CC of 1950, a marriage between stepbrother and stepsister
Youth Welfare Code which provides that “the civil personality of the was void. Such a marriage is not anymore prohibited under the new
child shall commence from the time of his conception for all purposes FC.
favorable to him, subject to the requirements of A41 of the Civil Code A53, which considers a subsequent marriage void if, before
(CC).” contracting the same, the former spouses, in violation of A52, failed
among others, to liquidate their property of the previous marriage after
MARRIAGE the finality of a nullity or annulment decree and to deliver the
 AUGUST 3, 1988 – Family Code (FC) took effect presumptive legitime of their children.
 Mail-Order Bride – prohibited In the CC mistake in identity is a ground to make a marriage
annullable. However, in the FC, such a mistake in identity is a ground
 Marriage Between Rapist and Raped Victims to declare a marriage void from the beginning.
A subsequent valid marriage of the offender and the offended party in Prior to its amendment, A39 of the FC clearly provides that in cases of
the crime of rape likewise extinguishes the criminal action or the marriages celebrated before the effectivity of the FC and falling under
penalty imposed for rape. Provided that the crime shall not be the said Code’s A36, an action or a defense to declare the marriage
extinguished or the penalty shall not be abated if the marriage is void void shall prescribe in 10 years after the effectivity of the FC. This
ab initio. means that a spouse who, prior to the effectivity of the FC got married
to an individual who is psychologically incapacitated under A36 may
 CONSTITUTIONAL PROTECTION file a case to declare such marriage void under the said article of the
Where a wife, to get evidence of infidelity in a case for legal separation new FC despite the fact that such ground did not exist as a legal basis
she filed against her husband, ransacked his office and forcibly took for nullity of marriage at the time his or her marriage was celebrated
documents and letters of the husband addressed to his paramour, the when the CC was in effect. Later, A39 was amended by deleting the
SC ruled that the wife cannot use the said documents and letters as prescriptive period of 10 years.
evidence because they were obtained in violation of the husband’s
constitutional right to privacy. Zulueta v CA  A2 – ESSENTIAL REQUISITES
 1. Legal capacity of the contracting parties who must be a EFFECT OF SEX CHANGE
male and a female Silverio v Republic, where the petitioner who has a biological sex
2. Consent freely given in the presence of the solemnizing change from male to female through gender re-assignment surgery
officer. and where he sought the amendment of his birth certificate to reflect
the change in sex as a preliminary step to get married to his partner,
 A3 – FORMAL REQUISITES the SC rejected the said petition, that the sex determined aby visually
1. Authority of the solemnizing officer looking at the genitals of a baby at the time of birth is immutable and
2. Valid marriage license that there is no law legally recognizing gender sex re-assignment.
3. Marriage ceremony, takes place with the appearance of Republic v Cagandahan, respondent was found out to have
the contracting parties before the solemnizing officer and Congenital Adrenal Hyperflasia, where the person afflicted has both
their personal declaration that they take each other as male and female characteristics and organs and where, through
H&W in the presence of not less than 2 witnesses of legal expert evidence, it was shown that the respondent, though genetically
age. female, secreted male hormones and not female hormones, had no
breast, and did not have any monthly menstrual period and where the
 A4 – ABSENCE – essential and formal requisites – VOID AB INITIO respondent felt like a male person and did not want to have surgery,
– except A35(2) the SC considered the person as an intersex individual and granted
DEFECT – essential – VOIDABLE the preference of the person to be considered as a male person,
IRREGULARITY – formal - shall not affect the validity of the marriage, thereby allowing the amendment of the birth certificate of the person
but the party/parties responsible for the irregularity shall be civilly, form female to male.
criminally and administratively liable.
CONSENT
 A5: Any male or female – age 18 years or upwards – not under any of 1. Must be freely given
the impediments in A37 and A38 – may contract marriage. 2. Made in the presence of the solemnizing officer
However, consent in marriage obtained through fraud, force,
 A6: No prescribed form or religious rite for the solemnization of the intimidation, or undue influence makes such marriage merely
marriage is required. What is necessary is for the contracting parties annullable or voidable.
to appear personally before the solemnizing officer and declare in the
presence of not less than 2 witnesses of legal age that they take each AUTHORITY OF THE SOLEMNIZING OFFICER (SO)
other as H&W. The declaration shall be contained in the marriage Must be anyone of those enumerated in A7.
certificate which shall be signed by the contracting parties and their It is not the presence or absence of the SO which constitutes the
witnesses and attested by the solemnizing officer. formal requisite but it is the absence or presence of the AUTHORITY
 Marriage in articulo mortis, party at the point of death is unable to sign of such SO.
the marriage certificate, it shall be sufficient for one of the witnesses Under the LGC, which took effect on January 1, 1992, the mayor of a
to the marriage to write the name of the said party, which fact shall be city or municipality is empowered to solemnized a marriage.
attested by the solemnizing officer. The SO is not duty bound to investigate whether a marriage license
has been duly and regularly issued by the local civil registrar. All the
LEGAL CAPACITY SO needs to know is that the license gas been issued by the
18 years old and above. If one of the parties is below 18 years of age, competent official, and it may be presumed from the issuance of the
the marriage is void even if the consent of the parents has been license that said official has fulfilled the duty to ascertain whether the
previously obtained. contracting parties had fulfilled the requirements of law.
1. However, under A29 in relation to A27 and 28, providing
1. Not below 18 years of age cases where the contracting parties are legally excused
2. Not under incestuous marriages from obtaining marriage license because a) articulo mortis
3. Not under marriages void by reason of public policy or b) no means of transportation to go to the civil registrar
4. Not bigamous as their place of residence are so far, the SO must
undertake the necessary steps to ascertain the ages and
 relationship of the contracting parties and the absence pf While the law provides that the declaration shall be contained in the
legal impediment to marry. marriage certificate, the same is neither an essential nor a formal
2. The same is true under A34 providing that persons living requisite of marriage. Hence, failure to sign the same does not render
together as H&W for at least 5 years without the benefit of the marriage void or annullable.
the marriage may contract a valid marriage even in the
absence of a marriage license, the SO is duty bound to
ascertain the qualifications of the contracting parties. WITNESSES IN A MARRIAGE CEREMONY
Criminal penalties are imposable to a person who solemnizes a There must be no less than 2 witnesses of legal age in attendance.
marriage without authority. Likewise, when such person publicly It can however be justifiably argued that the absence of 2 witnesses
advertise himself, by means of signs or placards placed on his of legal age in a marriage ceremony is merely an irregularity in the
residence or office or through newspapers, as authorized to formal requisite which shall not affect the validity of the marriage but
solemnized marriage. the party/parties responsible for the irregularity shall be civilly,
criminally and administratively liable. Balogbog v. CA
VALID MARRIAGE LICENSE
Must be issued by the local civil registrar of the place where the COMMON-LAW MARRIAGES NOT RECOGNIZED IN THE
marriage application was filed. PHILIPPINES
Once issued, it has only a lifetime of 120 days from the date of Because the CC and the FC expressly and mandatorily provide that
issuance and is effective in any part of the Philippines. the intervention in a valid marriage ceremony of an ecclesiastical or
The date of issue is the date of signing of the marriage license by the civil functionary authorized by the state to solemnized marriage
local civil registrar. constitutes one of the indispensable requisites for a valid marriage in
Marriage license is deemed automatically canceled at the expiration the Philippines.
of the 120-day period if the contracting parties have not made use of
it. ABSENCE, DEFECT, IRREGULARITIES IN ESSENTIAL AND
Other requirements for the issuance of a marriage license are merely FORMAL REQUISITES
directory in the sense that their non-observance is a mere irregularity Marriage by way of a jest is likewise void because there is absolutely
which will not render a marriage null and void or even annullable. no genuine consent on the part of both contracting parties.
Hence, if a marriage license is issued in a place wherein the However, a marriage solemnized for a financial consideration is valid
contracting parties do not reside and a marriage is performed on the and not in jest. Republic v Albios
basis of such marriage license, such marriage is still valid. Marriage by proxy solemnized here in the Philippines is void because
Likewise, the fact that a party to whom a license is issued is of the absence of the essential requisite that consent freely given must
represented therein by a name other than his true name or had his be made in the presence of the SO and the absence of formal requisite
name spelled wrongly will not invalidate a marriage solemnized on the that the contracting parties must personally declare before the SO that
authority of such license. they take each other as H&W.

MARRIAGE CEREMONY Absence of marriage license does not affect the validity of the
The FC only recognizes ceremonial marriages. marriage
The minimum requirement is that the contracting parties appear 1. Articulo mortis
personally before the SO and declare that they take each other as 2. Marriages of 2 contracting parties living in places where
H&W in the presence of at least 2 witnesses of legal age. there are no means of transportation to enable them to
The declaration of consent need not be vocally expressed. Thus, the appear personally before the local civil registrar
failure of the SO to ask the parties whether they take each other as 3. Marriages among Muslims and among other ethnic
H&W cannot be regarded as a fatal omission, and is not a cause for cultural minorities performed in accordance with their
annulment. A declaration by word of mouth of what the parties had practices
already stated in writing would be a mere repetition, so that its 4. Marriages of couples without any impediment to get
omission should not be regarded as a fatal defect. married living together as H&W for at least 5 years.
 5. Marriage solemnized by a person without authority to SHIP CAPTAIN AND AIRPLANE CHIEF
solemnized a marriage provided that either one of the 1. Marriage must be in articulo mortis
parties believed in GF that such solemnizer has the 2. Between passengers or crew members
proper authority. A35(2) 3. Generally, the ship must be at sea or the plane must be in flight.
Hence, assistant pilot has no authority to solemnize a marriage, even if the
BREACH OF PROMISE TO MARRY airplane chief dies during the trip and he assumes command of the airplane.
Not an actionable wrong. Marriages can be solemnized during stopovers at ports of call.
However, in Wassmer v Velez, to formally set a wedding and go through all
the above-described preparation and publicity, only to walk out of it when the MILITARY COMMANDER
matrimony is about to be solemnized, is quite different. The same is palpably 1. He/she must be a military commander of a unit
and unjustifiably contrary to good customs for which the defendant must be 2. Must be a commissioned officer – rank should start from a second
made answerable for damages in accordance with A21. lieutenant
3. A chaplain must be assigned to such unit – a battalion a not to a mere
A7: SO company
1. Incumbent member of the judiciary within the court’s jurisdiction 4. Said chaplain must be absent at the time of the marriage
2. Any priest, rabbi, imam or minister of any church or religious sect - 5. Marriage must be one in articulo mortis
duly authorized by his church or sect – registered with the civil registrar 6. The contracting parties, whether members of the armed forces or
general – acting within the limits of the written authority granted him – civilians, must be within the zone of military operation. – implies a
at least one of the contracting parties belongs to the SO’s church or widespread military activity over an area and does not refer to a
sect simulated exercise because It requires absence of civilian authorities.
3. Ship captain, airplane chief, only in cases under A31 A military commander may solemnize a marriage even if the contracting
4. Military commander of a unit to which a chaplain is assigned, in the parties do not belong to his/her unit.
absence of the latter, during a military operation, only in the cases
mentioned in A32 CONSUL-GENERAL, CONSUL OR VICE-CONSUL
5. Consul-general, consul or vice-consul, in cases provided in A10 They can solemnize a marriage only when the contracting parties are both
Filipino citizens.
JUDGES They act not only as the solemnizer of a marriage but also perform duties of
Only within their court’s jurisdiction. the local civil registrar such as the issuance of a marriage license.
Must be an incumbent and not retired judges. If the contracting parties desire to have their marriage solemnize in a place
Jurisdiction of the CTA, Sandiganbayan, CA and SC is national in scope. other than the office of the aforementioned, they shall request the said official
Marriage solemnized by a judge of the RTC, MeTC or MTC beyond his in writing in which case the marriage may be solemnized at a house or place
jurisdiction, there is absence of formal requisite in such a marriage, namely, designated by them in a sworn statement to that effect.
the authority of the SO; thus, void unless wither parties believed in GF that A marriage between a Filipino and a foreigner abroad solemnized by a
such SO has authority to conduct such marriage. Philippine consul appears to be void.
After solemnizing a marriage, it is highly irregular for a judge to collect fees for However, by way of exception, if the marriage between the foreigner and the
the ceremony. Filipino citizen abroad solemnized by a Philippine consul assigned in that
country is recognized as valid in the host country, then such marriage shall be
PRIEST, RABBI, IMAM OR MINISTER OF ANY CHURCH OR RELIGIOUS considered valid in the Philippines, pursuant to A26 of the FC.
SECT Also, a consul-general… have no authority to solemnize a marriage within the
1. Must be duly authorized by his/her church or sect territory of the Philippines.
2. Must act within the limits of the written authority granted to him/her by
the church or sect MAYOR
3. Registered with the civil registrar general When the mayor is temporarily incapacitated to perform his duties for physical
4. At least one of the contracting parties whose marriage he/she is to or legal reasons, the vice mayor of the highest ranking sangguniang bayan
solemnize belongs to his/her church or sect. member shall automatically exercise the powers and perform the duties of the
local chief executive concerned, except the power to appoint, suspend, and 4. Either of the contracting parties, unable to produce his birth or
dismiss employees which can only be exercised if the period exceeds 30days. baptismal certificate or a certified copy thereof, because of destruction
Thus the vice mayor of a municipality acting as Acting Mayor has the authority or loss or shown by affidavit that the same has not been received
to solemnize marriages. though has been required of the person having custody thereof at least
15 days prior to the date of application, the party may furnish his
A8: VENUE OF MARRIAGE current residence certificate or duly sworn instrument before a LCR.
General rule: publicly, in chambers of the judge or in open court, in the church, 5. Presentation of birth or baptismal certificate shall not be required when
chapel or temple, or in the office of the consul-general, consul or vice-consul the parents of the contracting parties appear personally before the
Exceptions: LCR and swear to the correctness of the lawful age of the parties, or
1. Articulo mortis when the LCR shall, by merely looking at the applicants, be convinced
2. In remote places that either or both of them have the required age.
3. Marriages where both parties request a SO in writing.
A13: If either parties has been previously married, the applicant shall be
A9: MARRIAGE LICENSE required to furnish, instead of birth or baptismal cert, the death certificate of
PLACE OF ISSUE the deceased spouse or the judicial decree of absolute divorce or the judicial
Where wither of the contracting parties resides; otherwise, irregular, which will decree of annulment or declaration of nullity of his/her previous marriage.
not render null or void the marriage celebrated on the basis of such license.
RA 10354 provides that no marriage license shall issue unless the applicants A14: Either or both parties, between the ages of 18 and 21, shall exhibit to the
present a certificate of compliance issued for free by the local family planning LCR the consent to their marriage of their father, mother, surviving parent or
office certifying that they had duly received adequate instructions and guardian, or person having legal charge of them, in the order mentioned.
information on responsible parenthood, family planning, breastfeeding and Consent shall be manifested in writing or in the form of affidavit in the presence
infant nutrition. of 2 witnesses and attested before any official authorized by law to administer
oaths.
A10: (See notes on Consul-general, consul or vice-consul)
NO EMANCIPATION BY MARRIAGE.
A11: SWORN APPLICATION FOR THE ISSUANCE OF A MARRIAGE
LICENSE – CONTENTS (See Codal) A15: Marriages between the ages of 21 and 25 shall be obliged to ask their
MARRIAGE APPLICATION parents’ advice, otherwise, the marriage license shall not be issued till after 3
It may be obtained by anybody. Once it is signed and sworn to by the parties months following the completion of the publication of the application therefor.
and thereafter filed, the local civil registrar has no choice but to accept the Should the parents or guardian refuse to give any advice, the same shall be
application and process the same up to the time of the issuance of the stated in the sworn statement.
marriage license.
If the local civil registrar has knowledge of some legal impediment, he/she A16: In cases where parental consent/advice is needed, the parties shall
cannot discontinue processing the application; he must only note down the attach a certificate issued by the SO or a marriage counselor to the effect that
legal impediments in the application and thereafter, issue the marriage license the contracting parties have undergone marriage counselling. Failure to attach
unless otherwise stopped by the court. the same shall suspend the issuance of the marriage license for a period of 3
months from the completion of the publication of the application. Issuance
A12: DUTIES OF THE LOCAL CIVIL REGISTRAR (LCR) within the said 3 months shall subject the issuing officer to administrative
1. Upon receipt by the LCR, he shall require the presentation of the sanctions but shall not affect the validity of the marriage. Should only one of
original birth certificate or in default thereof, the baptismal certificate the parties require parental consent/advice, the other party must be present at
or copies of such duly attested by the persons having custody of the the counselling.
original.
2. The certificates or certified copies need not be sworn to and shall be A17: LCR shall prepare a notice which shall contain the full names and
exempt from DST. residences of the applicants for a marriage license and other data given in the
3. Proof of authenticity – signature and official title of the person issuing applications.
the certificate
The same shall be posted for 10 consecutive days on a bulletin board outside PROOF OF MARRIAGE
the office of the LCR located in a conspicuous place within the building and The primary or best evidence of a marriage is the marriage contract or the
accessible to the general public. marriage certificate.
Mere Photostat copy of a marriage certificate is a worthless piece of paper but
A18: INVESTIGATIVE POWER OF THE LCR if the same emanated from the Office of the LCR and duly certified by the LCR
In case of any impediment known to the LCR or brought to his attention, he as an authentic copy of the records in his office, such certified Photostat copy
hall merely note down the particulars thereof and his findings thereof in the is admissible as evidence.
application for a marriage license. He is nonetheless duty bound to issue said Also, baptismal certificates, birth certificates, judicial decisions and family bible
license after payment of the necessary fees unless exempted due to in which the names of the spouses have been entered as married are good
indigence, after the completion of the period of publication or after a period of evidence of marriage.
3 months from the completion of such publication in cases where parental It has been declared that a certificate of marriage made many years after the
advice is necessary and the same was not obtained as well as in cases where marriage is inadmissible, especially where there was no register of the
undergoing marriage counselling is required. marriage in the official records.
The issuance of the license despite the restraining order can be considered A marriage may be proved by parol evidence. Testimony by one of the parties
only as an irregularity in the formal requisite of a valid marriage license which or witnesses to the marriage, or by the person who solemnized the same, is
shall not affect the validity of the marriage but the party/parties responsible for admissible and competent to prove marriage.
the irregularity shall be civilly, criminally and administratively liable. With respect to a marriage ceremony, the testimony of an eyewitness to be
sufficient should disclose not only the performance of the ceremony by
A20: License shall be valid in any part of the Philippines for a period of 120 someone, but that all the circumstances attending it were such as to constitute
days from the date of issue, and shall be deemed automatically cancelled at it a legal marriage.
the expiration thereof. Also public and open cohabitation as H&W after the alleged marriage, birth
The date of signing by the LCR of the marriage license is the date of issue. and baptismal certificates of children borne by the alleged spouses and a
statement of such marriage in subsequent documents are competent evidence
A21: Either or both parties are citizens of a foreign country, it shall be to prove the fact of marriage.
necessary for them to submit a certificate of legal capacity to contract A solemn statement in the will of a deceased as to the fact of his marriage is
marriage, issued by their respective diplomatic or consular officials. also admissible proof of such a marriage.
Stateless persons or refugees from other countries shall submit an affidavit
stating the circumstances showing such capacity to contract marriage. PROOF TO ATTACK THE VALIDITY OF MARRIAGE
If without the certificate of legal capacity, the marriage license was An official certification by the Office of the LCR, where a particular marriage
nevertheless issued, the marriage celebrated will still be considered valid as license has been issued as indicated in the marriage contract, stating that,
this is merely an irregularity which will not affect the validity of the marriage. after earnest effort to locate and verify the existence of a particular marriage
If the parties who are citizens of a foreign country desire to have their marriage license, the said office has no record of the marriage license, or is issued to
solemnized by their consul… officially assigned here in the Philippines, they another couple, or is spurious and fabricated, is a convincing evidence to
can get married before such consul… without procuring a marriage license destroy the validity of marriage on the ground of absence of a valid marriage
here in the Philippines if their country’s laws allow the same. Such marriage license.
shall be recognized here in the Philippines. Where the LCR certified that there was no marriage license despite the
exertion of all efforts but with an admission that, due to the work load of the
A22: CONTENTS OF MARRIAGE CERTIFICATE (See Codal) said office, it cannot give full force in locating the marriage license
compounded by the fact that the custodian already retired, the SC did not allow
A23: It shall be the duty of the SO to furnish either of the parties the original of the nullity of the marriage on the ground of absence of a marriage license
the marriage certificate and to send the duplicate and triplicate copies thereof considering that the circumstances and the certification for not categorically
not later than 15 days after the marriage to the LCR of the place where the and with absolutely certainty show and state that the marriage license cannot
marriage was solemnized. The SO shall retain in his file the quadruplicate copy be found and that there were earnest efforts to look for the same.
of the marriage certificate, the original or the marriage license and the affidavit
of the parties regarding the solemnization of the marriage in a place other than A25: The LCR shall enter all applications for marriage licenses filed with him
those mentioned in A8. in a registry book strictly in the order in which the same are received.
 considered as valid here even if such marriages were allowed in the country
A26: All marriages, SOLEMNIZED OUTSIDE THE PHILIPPINES, in where they were celebrated. These marriages are void as they are incestuous.
accordance with the laws in force in the country where they are solemnized, Common-law marriages obtained by Filipinos abroad should not be recognized
and valid there as such, shall also be valid in this country, except those here. A26 clearly uses the word solemnized and not contracted or performed.
prohibited under A35(1), (4) (5) and (6), A36, A37 and A38. Solemnization means the performance of the formal act or ceremony by which
MARRIAGE BETWEEN A FILIPINO CITIZEN AND A FOREIGNER is validly a man and a woman contract marriage and assume the status as H&W.
celebrated and DIVORCE is thereafter VALIDLY OBTAINED ABROAD by the Same-sex marriage of Filipinos abroad invalid. The FC mandates that only
ALIEN spouse capacitating him/her to marry, the FILIPINO spouse shall male and female can marry each other. This is a public policy matter which
likewise have capacity to marry under Philippine law. cannot be rendered ineffective by any foreign law.
The Philippines follows the lex loci celebrationis rule.
However, if the foreign marriage is to be solemnized inside the Philippine
Consulate abroad, such marriage must observe the forms and solemnities PROOF OF FOREIGN MARRIAGE
established by Philippine laws. It is necessary to prove the foreign law as a question of fact and then to prove
the celebration of marriage pursuant thereto by convincing evidence.
EXCEPTIONS TO THE COMITY PROVISIONS If such law of the other state is not pleaded nor proved and for the purpose of
If either or both parties are Filipinos and they are below 18 years of age, their determining the validity of a marriage in the said state, the laws of such state,
marriage solemnized abroad will not be recognized in the Philippines as valid in the absence of proof to the contrary, will be presumed by the Court to be the
even if the marriage is valid in the place where it has been solemnized. Our same as the laws of its own state.
law clearly adheres to the rule that the marrying capacity of the contracting In previous cases decided by the SC prior 1991, it has been held that the
parties is governed by the national law of that party, which is the Philippine burden of proof to show the fact of marriage and the foreign marital law is upon
law. the one who asserts the validity of the marriage celebrated abroad.
The exception under A26 referring to A35(1) should be construed as referring However, in 1991, the SC decided in the case of CID v Dela Rosa, considering
to a situation where the marriage abroad is between a Filipino and a Filipina that in case of doubt, all presumptions favor the solidarity of the family and
and not between a Filipino or Filipina and an alien married in the alien’s state every intendment of the law or facts toward the validity of the marriage, he who
where the alien, though below 18 years of age, is capacitated to marry. asserts that the marriage is not valid under our laws bears the burden ofproof
Bigamous marriage and polygamous marriage, though valid abroad, shall to present the foreign law.
likewise not be recognized in the Philippines.
However, under A41, a bigamous marriage may be recognized. This occurs ABSOLUTE DIVORCE
when, before the celebration of the subsequent marriage, one of the spouses If between two citizens of the Philippines, the absolute divorce is not
had been absent for 4 consecutive years, or 2 consecutive years in cases recognized in the Philippines. Divorce initiated by a Filipino is against public
where there is danger of death, and the spouse present has a well-founded policy.
belief that the absent spouse was already dead. The spouse present thereafter However, aliens may obtain divorce abroad, which may be recognized in the
obtains a judicial declaration of presumptive death and subsequently marries Philippines, provided, they are valid according to their national law. Our civil
again. The second marriage is valid without prejudice to the reappearance of law adheres to the nationality rule on the matter of status or legal capacity of
the absentee spouse. a person. This means that as to a person’s status or legal capacity, the law of
Also, if a spouse is able to annul or to declare as null and void his/her marriage the country of the person shall determine such status or legal capacity.
but failed to record the judicial decree with the LCR, to partition and distribute The second paragraph of A26 also applies to a situation where originally, at
their properties and to deliver the presumptive legitimes of their children, any the time of the marriage ceremony, both parties were Filipinos, but at the time
subsequent marriage of either spouse shall be void. of the divorce, the petitioner was already a citizen of a foreign country that
A marriage by a Filipino to a person who is psychologically incapacitated to allows absolute divorce.
perform the essential marital obligations abroad, even if valid in the foreign For purposes of A26 therefore, the determinative point when the foreigner who
country where it has been solemnized, shall not be considered valid here. The procures the divorce should be a foreigner is at the time of the divorce and not
same is true if the person psychologically incapacitated is the Filipino himself. at the time of the marriage ceremony. Republic v Orbecido
Marriages between ascendants and descendants of any degree as well as The Filipino spouse who did not procure the divorce, must be a Filipino also at
between brothers and sisters, whether of the full or half-blood are likewise not the time of the issuance of the divorce. Hence, if the Filipino spouse
subsequently acquires his/her spouse’s citizenship before the divorce and
he/she initiates the divorce proceeding, the eventual divorce decree will be MARRIAGE EXEMPT FROM LICENSE REQUIREMENT
recognized here in the Philippines not because of A26 but because of our A27: Either or both of the parties are at the point of death, even if the ailing
adherence to the nationality principle with respect to the status of a person. It party subsequently survives.
must be remembered that at the time of the divorce decree, the Filipino had
already become a foreign citizen and therefore, Philippine laws will not A28: Residence of either parties is so located that there is no means of
anymore govern his/her status. transportation to enable such party to appear personally before the LCR.
If the marriage is between 2 Filipinos and one of them obtains an absolute
divorce abroad after he has been naturalized as a citizen of a foreign country A29: In cases provided in A27 and 28, the SO shall state in an affidavit
where absolute divorce is recognized, such naturalized foreigner, who was executed before the LCR or other person authorized to administer oaths that
formerly a Filipino, can come back to the Philippines and validly remarry. the marriage was performed under the said Articles and that the officer took
In the event that it is the Filipino who obtains the foreign absolute divorce, such the necessary steps to ascertain the ages and relationship of the parties and
divorce will not be recognized here. However, insofar as the foreigner is the absence of legal impediment to the marriage.
concerned, the divorce will be recognized here because of the Philippine’s
adherence to the nationality rule. In the event that a Filipino wife decides to A30: The original of the affidavit together with a legible copy of the marriage
have sexual intercourse with another man after such wife obtains an absolute contract shall be sent by the SO to the LCR of the municipality where it was
divorce abroad, the foreigner husband cannot file a criminal case for adultery performed within a period of 30 days after the performance of the marriage.
because, while the Filipino wife is still considered married to him under
Philippine laws such foreigner is not considered married to her and, therefore, A31: Marriage in articulo mortis, between passengers or crew members, by a
does not have any legal standing to file such criminal case. ship captain or airplane pilot not only while the ship is at sea or the plane is in
flight, but also during stopovers at ports of call.
FOREIGNER FILING PETITION FOR RECOGNITION OF DIVORCE
The alien spouse can claim no right under the second paragraph of A26 of the A32: Military commander of a unit, who is a commissioned officer, between
FC as the substantive right it establishes is in favor of the Filipino spouse. persons within the zone of military operation, whether members of the armed
Corpus v. Sto. Tomas forces or civilians.
However, the court clarified that the recognition of the foreign divorce decree
may be made in a Rule 108 proceeding itself, as the object of the special A33: Marriages among Muslims or members of ethnic cultural communities,
proceedings is precisely to establish the status or right of a party of a particular provided they are solemnized in accordance with their customs, rites or
fact. pratices.

VOID AND VOIDABLE MARRIAGES A34: Marriage between a man and a woman who have lived together as H&W
In the event that a Filipino contracts a foreign marriage which is null and void for at least 5 years and without any legal impediment to marry each other. The
under the laws of the state where it has been solemnized, such marriage shall parties shall state such facts in an affidavit before person authorized to
likewise be null and void in the Philippines. This is so because the first administer oaths. The SO shall also state under oath that he ascertained the
paragraph of A26 clearly provides that foreign marriages, in order to be qualifications of the parties and found no legal impediment to the marriage.
considered valid in the Philippines, must be valid in accordance with the laws
in force in the country where they are solemnized. Their marriage should not fall under those declared as void under A35, 36, 37,
Implicit as well is the recognition that a Filipino’s foreign marriage, which is 38, 40, 41, 44 and 53 of the FC.
invalid under the laws where such marriage has been solemnized but which
would have been valid had such marriage been celebrated in the Philippines, COHABITATION FOR FIVE YEARS
is likewise invalid in the Philippines. 1. They must live as such for at least five years characterized by
exclusivity and continuity that is unbroken.
2. They must be without any legal impediment to marry each other. – at
the time of the actual marriage celebration
Hence, the parties must be without legal impediment only at the time of the
marriage ceremony and not during all those previous five years.
 VOID AND VOIDABLE MARRIAGES BAD FAITH OR GOOD FAITH IN VOID MARRIAGES
A35: VOID FROM THE BEGINNING As a general rule, GF and BF are immaterial in determining whether a marriage
1. Below 18 years of age even with the consent of the parents or is null and void.
guardians Hence, even if a woman believed in gf that she married a man not related to
2. Solemnized by person not legally authorized to perform marriages her but who, in truth and in fact, was her long-lost brother, her gf will not cure
unless either or both parties believing in GF that the SO had the legal the infirmity even if she willingly and freely cohabited with him for a reasonable
authority to do so length of time after discovering the relationship.
3. Solemnized without a license The equitable doctrine of unclean hands where the Court should not grant
4. Bigamous and polygamous relief to the wrongdoer is not a rule as applied in nullity actions because it is
5. Contracted through mistake in identity merely judge-made and has no statutory basis.
6. Subsequent marriages that are void under A53 Significantly, while the FC generally refers to an injured party in annullable and
voidable marriages, it does not make any statutory reference to an injured
In the absence of any other ground to consider a marriage void, a court party in null and void marriages. Thus, either the husband or the wife in a void
appointed guardian and his or her ward can marry each other and likewise marriage can file a case to declare it null and void.
stepbrothers and stepsisters can validly marry each other. Nonetheless, the party who knew that he or she was entering a void marriage
The grounds for a void marriage may co-exist in one case. before its solemnization may be held liable for damages by the other
contracting party under the provisions on Human Relations in the CC.
VOID AND VOIDABLE MARRIAGE There are only two exceptions to the general rule that gf and bf are not relevant
Void Marriages Voidable Marriages in void marriages.
1. Can be attacked collaterally. 1. Cannot be assailed collaterally 1. A35(2) states that if either of the parties is in gf in believing that a SO
2. Can be question even after the except in a direct proceeding. has authority to solemnize a marriage though he/she actually has
death of either party. 2. Can be assailed only during the none, the marriage will be considered valid.
3. Action or defense for nullity is lifetime of the parties and not 2. In the case provided in A41 referring to a person whose spouse
imprescriptible. after death of either. disappears for 4 years or 2 years, in the proper cases, the present
4. Any proper interested party may 3. Action prescribes. spouse may validly marry if he/she
attack a void marriage. 4. Only the parties to a voidable a. Has a well-founded belief that his/her spouse is dead
5. Have no legal effects except marriage can assail it. b. Procures a judicial declaration of presumptive death
those declared by law 5. The property regime is generally c. At the time of the subsequent marriage ceremony, is in gf
concerning the properties of the CPG or ACP and the children together with the subsequent spouse; otherwise, the
alleged spouses, regarding co- conceived before its annulment subsequent marriage shall be considered void in
ownership or ownership through are legitimate. accordance with A44.
actual joint contribution and its In these 2 cases, the gf even of only one of the parties shall make the
effect on the children born to marriage valid. To be void, both the parties must be in bf.
such void marriages a provided
in A50 in relation to A43 and 44 BAD FAITH AS AFFECTING PROPERTY DISPOSITION
as well as A51, 53 and 54. In determining the disposition of properties in a void marriage, gf and bf of one
6. Can never be ratified or cured by of the parties at the time of the marriage ceremony are material.
any act of any of the contracting As a general rule, in a void marriage, the property regime is one of co-
parties. ownership.
When only one of the parties to a void marriage is in gf, the share of the party
A marriage that is annulled presupposes that it subsists but later ceases to in bf in the co-ownership shall be forfeited in favor of their common children.
have legal effect when it is terminated through court action. In case of default of, or waiver by any or all of the common children or their
A marriage that is void ab initio is considered as having never to have taken descendants, each vacant share shall belong to the respective surviving
place and cannot be the source of rights. descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon the termination
of the cohabitation.
This rule applies to all void marriages except to a subsequent void marriage GOOD FAITH MARRIAGE
due to the failure of the party to get a prior judicial declaration of nullity of the If the marriage were contracted with either or both parties believing in gf that
previous marriage pursuant to A40. the SO had the legal authority to do so when in fact he/she has none, then the
Thus, if a person, whose existing marriage is void, remarries another without marriage shall be considered valid. The gf is clearly addressed to the
obtaining a judicial declaration of nullity, the subsequent marriage is void. contracting parties and not to the SO.
However, even if the subsequent marriage is void, A147 or 148 will not apply
but A50, which provides that par 2 of A43 shall apply in case of a subsequent BIGAMOUS OR POLYGAMOUS MARRIAGE
void marriage under A40. Par 2 of A43 provides that, upon the termination of In a bigamous marriage, the first marriage must have been valid. If the first
the marriage, the ACP or the CPG, shall be dissolved and liquidated, but if marriage is in itself void and a subsequent marriage is contracted without a
either spouse contracted said marriage in bf, his or her share of the net profits prior judicial declaration of nullity of the first marriage, the subsequent marriage
of the ACP or CGP shall be forfeited in favor of the common children, or if there is also void because it violates A40 in relation to A52 and 53 of the Family
are none, the children of the guilty spouse by a previous marriage, or in default, Code. Non-observance of A40 in relation to A52 shall make the subsequent
the innocent spouse. marriage void pursuant to the express provision of A53.

COLLATERAL AND DIRECT ATTACK MISTAKE IN IDENTITY

As a general rule a void marriage can be collaterally attacked. This means that Ground for nullity of marriage.
the nullity of marriage can be asserted even if it is not the main or principal Covers only those situations in which there has been a mistake on the part of
issue of a case and that no previous judicial declaration of nullity is required the party seeking the nullification of marriage on the part of the party seeking
by law with respect to any other matter where the issue of the voidness of a the nullification of marriage as to the actual physical identity of the other party.
marriage is pertinent or material, either directly or indirectly. It does not include mistake in the name, the character of the person or in
his/her attributes, age, religion, social standing, pedigree, pecuniary means,
However, there are three cases where a direct attack on the nullity of temperaments, acquirements, condition in life, or previous habits.
marriage must first be undertaken so that the proper effects provided by Also, it has been held that mistake as to identity is not applicable in a situation
law can appropriately apply. where the husband had been led to believe that he was marrying a virtuous
1. Provided in A40 which provides that the absolute nullity of a previous woman, when in fact she had previously led an immoral life.
marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such marriage void. In short, for VOID UNDER ARTICLE 53
purposes of remarriage, the only acceptable proof to show the For persons whose marriages have been annulled or declared null and void to
voidness of the first marriage is a judicial declaration issued by the be able to validly marry again, they must undertake the liquidation, partition
court directly stating that the first marriage is null and void. and distribution of their properties, if any, and only in proper cases, the delivery
2. When it is said that for purposes other than remarriage, no judicial of the children’s presumptive legitimes and thereafter all these requirements,
declaration of nullity is necessary. However, for purposes such as but including the decree of annulment or nullity, should be recorded in the
not limited to determination of heirship, legitimacy or illegitimacy of the appropriate civil registry and the registries of property.
child, settlement of estate, dissolution of property regime, or a criminal Non-compliance with these requirements will render any subsequent marriage
case for that matter, the court may pass upon the validity of the void.
marriage even in a suit not directly instituted to question the same as
long as it is essential to the determination of the case. When such A36: PSYCHOLOGICAL INCAPACITY
need arise, a final judgment of declaration of nullity is necessary even Who at the time of the celebration, was psychologically incapacitated to
if the purpose if other than remarriage. comply with the essential marital obligations of marriage, void, even if such
3. Provided in A50 in relation to A43(3) and in A86(1) of the FC. incapacity becomes manifest only after its solemnization.
Thus, if a donor desires to revoke a donation propter nuptias given to
one or both of the married couple on the ground that the marriage is The malady or mental disposition of one or both of the parties must be such
void, it is important that a judicial declaration of nullity of marriage must as to seriously and effectively prevent them from having a functional and
first be obtained. It is not enough that the marriage is void pursuant to normal marital life clearly conducive to bringing up a healthy personal inter-
law. There must first be a civil suit filed by either of the parties in the marital relationship within the family which is necessary for its growth.
void marriage to have the marriage judicially declared null and void.
It must be a psychological illness afflicting a party even before the celebration or may not accept the testimony of the psychology or psychiatrist because the
of the marriage. decision must be based on the totality of the evidence.
The incapacity is clearly limited to his/her failure or disregard to comply with In a particular case decided by the SC, a husband, in a hearing for nullity of
his/her essential marital obligations. The spouses simply refuse to perform marriage under A36, sought to introduce the confidential psychiatric evaluation
these obligations although physically capable of doing so. It refers to the lack report made by the psychiatrist with respect to his wife. This was objected to
of appreciation of one’s marital obligation and that psychological incapacity by the lawyer of the wife on the ground that such a report was within the
does not refer to mental faculties and has nothing to do with consent; it refers privileged communication rule between the doctor and patient. The SC ruled
to obligations attendant to marriage. that the testimony was not within the doctor-patient privileged communication
Such a marriage cannot be cured by cohabitation considering that it is void rule since the one who would testify is not the doctor but the husband.
and thus, ratification cannot apply.
Guidelines in invoking and proving psychological incapacity
Psychological incapacity must be characterized by: 1. The burden of proof to show the nullity of the marriage belongs to the
1. Gravity plaintiff. Any doubt shall be resolved in favor of the existence and
2. Juridical antecedence continuation of the marriage and against its dissolution and nullity.
3. Incurability 2. The root cause of the psychological incapacity must be: a) medically
The incapacity must be grave or serious such that the party would be incapable or clinically identified; b) alleged in the complaint; c) sufficiently proven
of carrying out the ordinary duties required in marriage; it must be rooted in the by experts; and d) clearly explained in the decision.
history of the party antedating the marriage, although the overt manifestations 3. The incapacity must be proven to be existing at the time of the
may emerge only after the marriage; and it must be incurable or, even if it were celebration of marriage
otherwise, the cure would be beyond the means of the party involved. 4. Such incapacity must also be shown to be medically or clinically
permanent or incurable.
PROVING PSYCHOLOGICAL INCAPACITY 5. Such illness must be grave enough to bring about the disability of the
1. One should see if the H or W observes his/her duty as such towards party to assume the essential obligations of marriage.
his/her spouse, children and the family. 6. The essential marital obligations must be those embraced by A68 to
2. Procreation is likewise an essential obligation. Chi Ming Tsoi v CA 71 of the FC as regards the H&W as well as A220, 221 and 225 of the
3. A220, 221 and 225 likewise enumerate the right, duties, and liabilities same Code in regard to parents and their children.
of parents relative to their parental authority over their children. Failure 7. Interpretations given by the National Appellate Matrimonial Tribunal of
to comply with these rights, duties and obligations is a good indicator the Catholic Church in the Philippines, while not controlling or decisive,
of psychological incapacity to perform the essential marital obligation. should be given great respect by our courts.
4. Unreasonable attachment by the spouse to his or her family or to the 8. The trial court must order the prosecuting attorney or fiscal and the
spouse’s friends or barkada such that the importance and devotion SolGen to appear as counsel for the state.
which should be given to his/her own spouse and children are
subordinated to the said attachment is also a good indicator of In case involving psychological incapacity, the SC disallowed the award of
psychological incapacity. moral, exemplary damages and attorney’s fees on the ground that the very
However, separation or abandonment alone is not conclusive proof of nature of psychological incapacity which is non-cognizance of one’s essential
psychological incapacity. martial obligation at the time of the marriage ceremony, negates bad faith,
Sexual infidelity alone or living an adulterous life does not automatically prove which is an essential element in awarding moral damages, in contracting the
psychological incapacity. marriage.
Psychological incapacity cannot be mere refusal or neglect to comply with the
obligations, it must be downright incapacity to perform. A37: INCESTUOUS MARRIAGE. (Please see codal)
Also, mere incompatibility and irreconcilable differences are not enough. REASONS FOR PROHIBITION
Have been condemned as grossly indecent, immoral and inimical to the purity
EXPERT TESTIMONY and happiness of the family and the welfare of the future generation.
In the course of the proceeding, expert testimonies of a psychologist or A child of an incestuous marriage creates a special problem of social
psychiatrist evaluating the behavioral pattern of the person alleged to be placement, because its status is so confused, as is that of its parent.
psychologically incapacitated are extremely helpful. However, the court may
In additional, science and experience have established beyond cavil that such adopted can validly marry the previous spouse of the adopter because such
intermarriage very often result in deficient and degenerate offspring, which, if spouse is no a surviving spouse as contemplated by law but a former spouse
occurring to any great extent, would amount to serious deterioration of the who, after the finality of the nullity or annulment decree, has become a
race. complete stranger to the adopter.
Social prohibitions against incest promote the solidarity of the nuclear family. Likewise, the adopter can marry the spouse of the adopted if the marriage of
the adopted and his/her spouse were severed by a final judicial nullity or
A38: PUBLIC POLICY (Please see codal) annulment decree.
REASONS FOR THE PROHIBITION
It is the policy of the state to foster a normal, peaceful, and wholesome integral INTENTIONAL KILLING OF SPOUSE: A38(9)
nuclear family unit which would constitute the very foundation of society. However, it must be emphasized that, in killing his/her spouse, the guilty party
The enumeration is exclusive. Hence, a guardian and his/her ward can validly must be animated by an intention to marry another person. Thus, if a wife kills
marry each other as this relationship is not included in the enumeration. A her husband because he was an incorrigible philanderer and thereafter
principal and his/her agent can likewise marry each other provided they do not marries her lawyer who has been defending her in the criminal cases, the
suffer from any other impediment provided in the FC. marriage is valid. The reason for killing the husband was obviously not for the
purpose of marrying the lawyer.
Affinity is a connection formed by marriage, which places the husband in the No prior criminal conviction by the court for the killing is required by law.
same degree of nominal propinquity to the relatives of the wife as that in which
she herself stands towards them, and give the wife the same reciprocal A39: Action or defense for the declaration of absolute nullity of a marriage shall
connection with the relations of the husband. not prescribe.
The only marriages by affinity prohibited in the FC are marriages between A judicial decree of nullity of marriage does not legally dissolve a marriage
step-parents and step-children as well as parents-in-law and children-in-law. because such a marriage is invalid from the beginning and therefore, being
Step brother and step sister can marry each other as this relationship by affinity non-existent, cannot be dissolved. It merely declares or confirms the voidness,
is not included in the prohibition. non-existence or incipient invalidity of the marriage. Hence, the decree is
known as a judicial declaration of nullity of marriage decree.
EFFECT OF TERMINATION OF MARRIAGE IN THE AFFINITY Only the husband and wife can file the case and, if filed, the case will be closed
RELATIONSHIP or terminated if during its pendency, either of and H and W should die. AM 02-
The prohibition is terminated as well. They now become strangers to each 11-10
other. On the other hand, the relationship by affinity is continued despite the The heirs cannot anymore file a case for the nullity of marriage of their parents
death of one of the spouses where there are living issues or children of the or of their parent with their step-parent. Enrico v Heirs of Medinaceli
marriage in whose veins the blood of the parties is commingled, since the There is no prescriptive period to nullify a marriage under A36 even if the
relationship of affinity was continued through the medium of the issue of the marriage were celebrated before Aug 3, 1988. All void marriages under the FC
marriage. do not prescribe.
Likewise, the parents cannot file a case for nullity in relation to the marriage of
ADOPTIVE RELATIONSHIP their children.
The relationship is merely limited to one of parent and child. Further, only the spouses in the subsisting first marriage can file a case for
The adopter cannot marry the adopted and the surviving spouse of the declaration of nullity of marriage of a subsequent bigamous marriage. The
adopted. other spouse in the subsequent marriage cannot file the case considering that
The adopted cannot marry the adopter, the surviving spouse of the adopter, his/her marriage is void. Fujiki v Marinay
the legitimate child of the adopter, and the adopted children of the adopter. However, a void marriage can still be collaterally attacked by any interested
An adopted can validly marry the following: the parents, illegitimate child, and party in any proceeding where the determination of the validity of marriage is
other relatives, whether by consanguinity or affinity, of the adopter. necessary to give rise to certain rights or to negate certain rights. This can
The adopter can validly marry the legitimate, illegitimate or adopted child, the occur in an intestate proceeding where certain heirs can attack the validity of
natural parent and other relatives whether by consanguinity or affinity of the the marriage of the deceased parent so that the children of the deceased
adopted. parent can be considered illegitimate for purposes of inheritance.
However, if the marriage of the adopter and his/her spouse is judicially nullified
or annulled and barring any other ground to make the marriage void, the
A40: The absolute nullity of a previous marriage may be invoked for purposes Gf in contracting the second marriage is a defense in the crime of
of remarriage on the basis solely of a final judgment declaring such previous bigamy.
marriage void. Criminal bigamy is determined not by the fact that the first marriage is really
If a marriage between two parties is void ab initio, any one of them cannot legally void but by the fact that no judicial declaration of nullity of the first
contract a subsequent valid marriage without a previous judicial declaration of marriage was obtained prior to the subsequent marriage. Mercado v Mercado
nullity of the previous void marriage. A subsequent marriage without such While the accused may have violated A40, such violation is not a bar in
judicial declaration of nullity of the previous marriage is in itself void ab initio in invoking the nullity of the first marriage because A40 merely aims to put
accordance with A 40, 52 and 53. certainty as to the void status of the subsequent marriage and is not aimed as
Only after full compliance with A52 and 53 can a subsequent valid marriage a provision to define bigamy under the FC or criminal bigamy under the RPC.
be entered into. Hence, though the first marriage is judicially declared void, The only effect of the non-observance of A40 is to make the subsequent
any subsequent marriage may still be declared void because of the failure to marriage void pursuant to A52 and 53. J. Vitug, Dissenting Opinion
comply with A52 and 53.
The SC ruled that in a case for support, a lower court can declare a marriage A41: BIGAMOUS MARRIAGE: Marriage contracted during the subsistence of
void even without prior judicial declaration of nullity of a void marriage filed in a previous valid marriage – null and void – unless prior spouse has a well-
a separate action considering that the determination of the issue on the validity founded belief that the absent spouse for 4 consecutive years was already
of marriage was important in the resolution of the right of the child to be dead – in case of disappearance where there is danger of death under A391
supported. – an absence of 2 years is sufficient – the spouse present must institute a
summary proceeding for the declaration of presumptive death of the absentee
ARTICLE 40 AND BIGAMY without prejudice to the effect of reappearance – for purposes of contracting
1. If the first marriage is void and a party to that first marriage the subsequent marriage.
subsequently remarries without obtaining a judicial declaration of
nullity of the first marriage, there is no doubt that the subsequent A42: Subsequent marriage in A41 – automatically terminated – by the
marriage is likewise void, not because it is bigamous but because it recording of the affidavit of reappearance of the absent souse – unless there
failed to comply with the requirements under A40 and pertinently, A52 is judgment annulling the previous marriage or declaring it void ab initio. Sworn
and 53. A40 does not declare or define that a subsequent void statement of reappearance – recorded in the civil registry of the residence of
marriage obtained in violation of A40 is bigamous. This is precisely the parties to the subsequent marriage – with due notice to the said spouses
because there is no bigamy if the first marriage is void and A40 and without prejudice to the fact of reappearance being judicially determined
precisely contemplates a situation where the first marriage is void. in case such fact is disputed.
2. On the other hand, a subsequent bigamous marriage contemplates a
situation where such subsequent marriage was contracted at the time EXCEPTION TO BIGAMOUS MARRIAGE: A42
when the first marriage, which is valid in all respects, was still May be considered valid if, prior to the subsequent marriage and without
subsisting. A void bigamous marriage therefore involves a situation prejudice to the effect of the reappearance of the other spouse, the present
where the first marriage is not void but completely valid or at least spouse obtains a judicial declaration of presumptive death via a summary
annullable. proceeding in a court of competent jurisdiction.
However, before that, it must be shown that the prior spouse had been absent
In other words, in a bigamous void marriage, the subsisting first for 4 consecutive years and the present spouse had a well-founded belief that
marriage is valid, while in A40 in relation to A52 and 53, the subsisting the absent spouse is dead. The period is shortened to 2 years in case of
first marriage is void. disappearance where there is danger of death under the circumstances in
A391 of the CC.
ARTICLE 40 AND CRIMINAL BIGAMY a. Vessel – lost during sea voyage – has not been heard for 2 years since
The crime of bigamy contemplates a situation where the first marriage is valid the loss
or at least annullable and not void from the beginning. It likewise contemplates b. Airplane – missing – has not been heard for 2 years since the loss
a situation where the subsequent marriage would have been valid had it not c. Armed forces – taken part in the war – missing for 2 years
been bigamous. Hence, if the second marriage is likewise void because of d. Danger of death under other circumstances
legal grounds other than bigamy there can be no crime of bigamy.
Judicial declaration is merely a statement to the effect that the prior spouse is It is only in A41 of the FC that a judicial declaration of presumptive death is
merely presumed dead. The declared presumption will still be only prima facie, mandatorily required by law to be obtained by the present spouse only for the
and can be overthrown by evidence. Hence, the fact of death is not really purpose of capacitating the present spouse to remarry. The proceeding shall
established. be summary in nature.

TERMINATION OF THE SUBSEQUENT MARRIAGE SWORN STATEMENT OF REAPPEARANCE

Automatic termination of the subsequent marriage can be obtained by the If the absentee reappears, but no step is taken to terminate the subsequent
recording of the affidavit of reappearance of the absent souse in the civil marriage, either by affidavit or by court action, such absentee’s mere
registry of the residence of the parties to the subsequent marriage. This is the reappearance, even if made known to the spouses in the subsequent
only instance where a marriage is terminated extra-judicially. marriage, will not terminate such marriage. SSS v Jarque Vda De Bailon
If, however, the spouse reappeared and he/she or any interested party does However, the termination is without prejudice to the outcome of any judicial
not file an affidavit or sworn statement with the civil registry of the fact of proceeding questioning such reappearance. Hence, if the appearing spouse is
reappearance, there will technically exist two valid marriages. It is at this point in fact an impostor, the automatic termination will be rendered ineffectual.
where a VALID BIGAMOUS MARRIAGE shall exist if the marriage between If the reappearing spouse or interested person does not file any sworn
the present spouse and the reappearing spouse is in itself valid. However, if statement of reappearance, the two marriages shall be considered valid.
the marriage between them is also void, there is no subsequent valid bigamous However, between the two marriages, the law or the state shall continue to
marriage. protect the second marriage rather than the first marriage because if indeed
the reappearing spouse wants to assert his/her rights, he/she could have
easily file the affidavit of reappearance to terminate the subsequent marriage.
LIQUIDATION OF THE PROPERTIES OF THE FIRST MARRIAGE
After the issuance of the judicial declaration, the properties of the first marriage A43: EFFECTS OF TERMINATION OF THE SUBSEQUENT MARRIAGE
should be liquidated using by analogy the provisions of A103 and 130 if the (Please see codal)
marriage to be liquidated is in itself valid.
If there is no liquidation and the present spouse immediately remarries, the A44: If both Sps to the subsequent marriage acted in BF, said marriage shall
property regime that will apply in the subsequent marriage will be the CSP. be void ab initio and all donations by reason of marriage and testamentary
However, if there were a liquidation, the parties may agree in the settlement dispositions made by one or in favor of the other are revoked by operation of
as to what type of property regime will govern their marital relationship and, in law.
the absence of such marriage settlement or when the latter is void, the spouses
shall be governed by the ACP regime. STATUS OF CHILDREN
If the marriage is void, then the rule of co-ownership will apply and the Children conceived contemplated in A41 in cases of presumptive death of one
properties will be liquidated in accordance with the said rules. of the Sps and before termination of the same shall be considered legitimate.
For purposes of opening the succession of the absent after the community This is so because the children have been conceived either inside a valid
property of the first marriage has been liquidated, A390 provides that “the bigamous marriage or inside a valid marriage despite the non-observance of
absentee shall not be presumed dead till after an absence of 10 years. If he A40, 52 and 53. This status of the children will be maintained even if one of
disappeared after the age of 75, an absence of 5 years shall be sufficient. If the contracting parties is in BF.
the absentee disappears where the risk of death is high, 4 years shall be
enough. But if the person proves to be alive, R73 S4 provides that he shall be DONATIONS BY REASON OF MARRIAGE
entitled to the balance of his estate after payment of all his debts. The If the donee acted in BF in contracting the marriage, the donation propter
balance may be recovered by motion in the same proceeding. nuptias ipso jure terminated by operation of law. The rule applies with more
reason if both parties acted in BF.
WELL-FOUNDED BELIEF OF DEATH For instance, if the present spouse, after obtaining the judicial declaration of
The belief of the present spouse must be the result of proper and honest to presumptive death and before celebration of the subsequent marriage, is able
goodness inquiries and efforts to ascertain the whereabouts of the absent to talk to the reappearing spouse, thereby knowing that he or she is alive, such
spouse and whether the absent spouse is still alive or is already dead. present spouse is already in BF. If the other party of the subsequent marriage
is likewise in BF, the subsequent marriage will be void. In this case, any
JUDICIAL DECLARATION OF PRESUMTIVE DEATH donation propter nuptias of the present spouse who is in BF in favor of the
other contracting party who is also in BF will surely prejudice the reappearing Thus, marriages are not invalidated by mere weakness of the mind or dullness
spouse as he or she is a presumptive heir of the present spouse. of intellect, nor by eccentricities or partial dementia.
Also, it can be said that technically speaking, since the subsequent marriage Burden of proof rests upon him who alleges insanity, or seeks to avoid an act
is void, the present spouse who has subsequently married may even be on account of it, and it devolves upon him to establish the fact of insanity by a
considered as committing an act of adultery or concubinage. Under A739 of preponderance of evidence.
the CC, a donation made between persons who are guilty of adultery or
concubinage at the time of the donation is void. FRAUD
Refers to non-disclosure or concealment of certain circumstances which
MARRIAGE CONTRACTED IN BAD FAITH materially affect the essence of marriage. The circumstances of fraud are
If the subsequent marriage in cases under A41 were contracted where only limited to those specified in A46 of the FC. Thus, non-disclosure of a husband’s
one of the parties, whether the present spouse or the new spouse, to the premarital relationship with another woman is not one of the enumerated
subsequent marriage was in BF, the said marriage is still valid. According to circumstances that would constitute fraud.
A44, the marriage shall be considered void only if both Sps in the subsequent
marriage are in BF. NON-DISCLOSURE OF PREVIOUS CONVICTION AS FRAUD
Thus if prior to the subsequent marriage, the would be spouse of the present Homicide is a crime involving moral turpitude.
spouse personally saw the absentee spouse, such would be spouse is in BF Moral turpitude includes everything which is contrary to justice, honesty or
in contracting the subsequent marriage. However, if the present spouse if in good morals. Generally, the crimes punishable under the RPC are crimes
GF, the subsequent marriage is still valid. involving moral turpitude.
It is important to note that the GF of the present spouse must be present up to There is a need for a conviction by final judgment.
the time of the celebration of the subsequent marriage. The present spouse
must not be in BF up to the time of the solemnization of the subsequent
marriage. CONCEALMENT OF PREGNANCY AS FRAUD
Mere pregnancy alone at the time of the marriage is not sufficient to
_____________________________________________________________ successfully annul a marriage on this ground. However, if the woman did not
expressly inform the man of her pregnancy but such physical condition was
A45: GROUNDS FOR ANNULMENT OF MARRIAGE (Please see codal) readily apparent to the man, he cannot claim lack of knowledge of such
A46: WHAT CONSTITUTES FRAUD (Please see codal) pregnancy. Buccat v Buccat
If a woman misrepresented to her fiancé that she was pregnant for the purpose
EXCLUSIVITY OF GROUNDS FOR ANNULMENT of inducing her fiance to marry her when in fact she was not pregnant, such
Unlike a void marriage which is invalid from the beginning, an annullable or fiance, who entered into the contract of marriage principally because of such
voidable marriage is considered valid up to the time it is terminated. inducement, cannot annul the marriage under A46(2) considering that there
The exclusivity of the grounds is in line with the policy of the State to enhance was in fact no pregnancy to conceal.
the permanence of marriage. Thus, mere non-cohabitation is not a ground for Fraud should also be imputed to the husband who did not disclose at the time
annulment of marriage. Villanueva v CA of the marriage ceremony or prior thereto to his future wife that he impregnated
another woman not his would be wife.
NO PARENTAL CONSENT
The same may be annulled at the instance of the party whose parent, guardian CONCEALMENT OF STD, REGARDLESS OF NATURE, AS FRAUD
or person having substituted parental authority did not give his/her consent The nature or gravity is irrelevant in order to invoke this ground. It is enough
and of the parents, guardian or person having substitute parental authority that there was concealment of the STD at the time of the marriage ceremony
over the party in that order. to warrant the annulment of marriage.

UNSOUND MIND CONCEALMENT OF DRUG ADDICTION AND HABITUAL ALCOHOLISM AS

There must be such a derangement of the mind to prevent the party from FRAUD
comprehending the nature of the contract and from giving to it his free and The persistent habit of becoming intoxicated, and that the nature and extent of
intelligent consent. the drunkenness must be such that the person by frequent indulgence may be
said to have a fixed and irresistible habit of drunkenness, whereby he has lost
the power or will to control his appetite for intoxicating liquor, as where he If the wife remains a virgin for at least 3 years from the time the Sps started
indulges in the practice of becoming intoxicated whenever the temptation is cohabiting, the H must show that he was not impotent during the said period
presented and the opportunity offered. and the burden will be upon him to overcome the resumption of impotence.

CONCEALMENT OF HOMOSEXUALITY OR LESBIANISM AS FRAUD STERILITY

The ground is not homosexuality or lesbianism per se but the concealment of Is not impotence. A sterile person can successfully engage in sexual coition.
such sexual orientation. Hence, the element of BF on the part of the one Hence, sterility is not a ground for annulment.
making the concealment is essential and must be duly proven.
STD
INCAPACITY TO CONSUMMATE Need not be incurable.
Denotes the permanent inability on the part of one of the spouses to perform If it is not concealed, it can still be a ground for annulment when it is found to
the complete act of sexual intercourse. May be caused by physical or structural be serious and incurable.
defect in the anatomy of one of the parties or it may be due to chronic disease
and inhibitions or fears arising in whole or in part from psychological RATIFICATION OF ANNULLABLE MARRIAGES
conditions. It may also be caused by psychogenic causes, where such mental If the injured party freely cohabits with the guilty party in the proper situations
block or disturbance has the result of making the spouse physically incapable provided by law.
of performing the marriage act. However, if the ground relied upon is either the incurable physical incapacity
Excessive sensibility, rendering sexual intercourse practically impossible on to consummate the marriage by either party or the affliction of either party with
account of the pain it must inflict, may be sufficient to show incapacity. an incurable STA, both existing at the time of the marriage ceremony, the mere
Also, an incurable nervous disorder on the part of the wife known as cohabitation as H&W will not ratify the annullable marriage. Also, even if the
vaginismus which renders sexual coition impossible is good proof of inability impotency or incurable STD is known to both parties prior to the marriage
to perform the marital act. ceremony, the injured party can still file a case for annulment.
However, merely suffering from epilepsy is not sufficient to show incapacity.
Also, mere refusal, without being physically incapable, to engage in sexual A47: PRESCRIPTIVE PERIOD FOR ANNULMENT AND THE PERSONS
intercourse does not equate to physical incapability of consummating the ENTITLED TO FILE THE SAME (Please see codal and pg. 328 for summary)
marriage. Jurisdiction is with the proper RTC depends upon the nationality or domicile of
The incapacity to consummate the marriage must exist at the time of the the parties, not the place of the celebration of the marriage.
marriage ceremony. Thus, in a case where the wife, as a result of an accident In case of insanity, if the sane spouse knew that his/her spouse has already
which occurred after the marriage ceremony, became paralyzed which been insane previous to the marriage, such sane spouse cannot file the suit
physically incapacitated her from consummating the marriage, it was held that as he/she is already estopped.
the marriage cannot be annulled as the incapability did not exist at the time of
the marriage ceremony. A48: Prevent collusion. No judgment shall be based upon a stipulation of facts
Also, it must be continuous and appears to be incurable. Accidental or or confession of judgment.
temporary impotency is not enough.
A49: During the pendency of the action, court shall provide for the support of
BURDEN OF PROOF IN CASES OF INCAPACITY TO CONSUMMATE the Sps and the custody and support of their common children. Paramount
An adult male is presumed to have normal powers of virility. consideration to the moral and material welfare of the children and their choice
As a general rule, incapacity to engage in sexual intercourse cannot be of parent. Appropriate visitation rights of the other parent.
presumed but must be proven by preponderance of evidence. Impotency
should not be presumed. The presumption is in favor of potency. In the event the defendant fails to answer, he/she cannot be declared in
The incapacity or impotence need not be universal. Hence, it has been said default.
that when impotence is psychological in origin, the condition may exist only as An annulment suit cannot be terminated by way of a compromise agreement.
to the present spouse and not as to others. Full blown hearing must be undertaken.
It is the duty of the Fiscal and the SolGen not only to defend a valid marriage
RULE OF TRIENNIAL COHABITATION but also to expose an invalid one.
The SC ruled that a partial voluntary separation of property agreed upon by In partition, conjugal dwelling and the lot shall be adjudicate in accordance with
the parties via a compromise agreement duly approved by the Court prior to A102 and 129.
the judicial declaration of nullity of marriage is valid. The same is not of itself
an indicator of collusion. A51: In partition, value of the presumptive legitimes of all common children
Collusion occurs where, for the purpose of getting an annulment or nullity computed as of the date of final judgment, shall be delivered in cash, property
decree, the parties come up with an agreement making it appear that the or sound securities, unless, mutual agreement judicially approved, had already
marriage is defective due to the existence of any grounds for the annulment of provided such matters.
marriage or the declaration of its nullity provided by law and agreeing to Children or their guardian, or trustee of their property, may ask for the
represent such false or non-existent cause of action before the proper court enforcement of judgment.
with the objective of facilitating the issuance of a decree of annulment or nullity Delivery of the presumptive legitimes, shall not prejudice the ultimate
of marriage. successional rights of the children accruing upon the death of either or both
Stipulation of facts or confession of judgment, if sufficiently supported or Sps; but the value of those already received shall be considered as advances
corroborated by other independent substantial evidence to support the main on their legitime.
ground relied upon, may warrant an annulment of a marriage or the declaration
of nullity of marriage. JUDGMENT OF ANNULMENT OR NULLITY OF MARRIAGE
Even if the judgment is void but was not assailed in a motion for
reconsideration and therefore not made an issue on appeal, such void
SUPPORT OF SPS AND CUSTODY OF CHILDREN judgment shall not be set aside and will continue to be effective. Lam v Chua
Principally the Sps and their children shall be supported from the properties of Insofar as void marriages are concerned, par 2,3,4 and 4 of A43 exceptionally
the ACP or CPG. Hence, support pendente lite and custody pendente lite can apply only to void subsequent marriages that occur as a result of the non-
be ordered. However, should the Court find the agreement to be inadequate, observance of A40. In this case, though the subsequent marriage is void, the
it may disregard the same and make the necessary provisions, which in its property shall be liquidated as if there is CPG or ACP.
sound discretion, would be adequate under the circumstances. In all other cases of a void marriage other than the void subsequent
In nullity cases, where the Court provisionally gives support pendente lite to a marriage the occurs as a result of the non-observance of A40, the
spouse who, at the end of the case, has been found out to be not entitled to property regime is shall be governed by the rule in co-ownership
the support because his/her marriage with the one giving the support is void provided for in A147 and 148 and not the CPG or the ACP.
ab initio, the Court shall order the recipient to return to the person who For marriages declared void on grounds other than the subsequent void
furnished the support the amounts already paid with legal interest from the marriage under A40, A50 and 51 do not apply and the marriage can be
dates of actual payment. declared void without waiting for the liquidation of the properties of the parties.
Unless there are other reasons later proven to show non-entitlement to the
support, the support given need not be reimbursed because, in such cases, PRESUMPTIVE LEGITIME (PL)
the marriage is valid up to the time it is dissolved. 1. In case the marriage is ANNULED, the PL of the common children, if
there are any, must be delivered to them.
VISITATIONAL RIGHTS 2. In VOID marriages, the delivery of the PL is GENERALLY not required
Even if a parent has been legally deprived of his/her visitorial rights, this can EXCEPT only in the void subsequent marriage resulting from non-
be reinstated if it can be shown that the grounds for derivation have become compliance of A40.
too harsh or are not anymore present. As a general rule, in case of void marriages, the special rules on co
ownership under A147 and 148, as the case may be, are applicable and,
A50: Effects in par 2, 3, 4 and 5 of A43 and A44 shall also apply in proper in case of liquidation and partition of such co ownership, the ordinary
cases to marriages declared void ab initio or annulled by final judgment under rules of co ownership under the CC are applicable and not A50, 51 and
A40 and 45. 52. Valdes v RTC
Final judgement shall provide for liquidation, partition and distribution of the
properties of the Sps, custody and support of the common children and PETITION FOR CANCELLATION OF ENTRIES
delivery of their presumptive legitimes, unless previously adjudicated in Where the petitioner proved by convincing evidence that the entries in a
previous proceedings. marriage certificate showing that she was married to a particular man was
Creditors of the Sps shall be notified of the proceedings for liquidation. absolutely false, that her signature was forged, that she did not know the man
appearing as the H, that she had no knowledge of the marriage ceremony, that It must be understood that the children referred to under A54 referring to
the alleged bride was an impostor and not the petitioner, the SC held that the A36 do not involve those conceived AND born before the marriage
Petition for the Correction of Entries under R108 filed by the alleged wife ceremony of the parents but to conceived OR born AFTER the marriage
for purposes of cancelling the certificate of marriage was the proper remedy, ceremony of the parents but BEFORE final judgment of nullity.
not a Petition for the Declaration of Nullity of Marriage, considering that
there was no actual marriage to speak of where the petitioner participated as If the marriage of A and B are annulled and A, even before the liquidation
the bride. of his CPG with B and without delivering the presumptive legitime of their
common legitimate children, subsequently marries X, the said marriage
A52: Judgment of annulment of marriage or of absolute nullity, partition and is VOID but any child conceived OR born inside such void marriage is
distribution of properties and delivery of children’s legitimes – recorded I the LEGITIMATE.
civil registry and registries of properties – otherwise VOID
CHILD CUSTODY
A53: Either former Sps may marry after complying with A52 – otherwise VOID Court shall consider the best interest of the child and shall give paramount
consideration to the material and moral welfare of the child.
Order of Preference:
A54: LEGITIMATE CHILDREN 1. Both parents jointly
1. Conceived or born before the judgment of annulment or nullity of 2. Either parent, taking into consideration the tender years doctrine,
marriage under A36 has become final and executory unless the parent chosen is unfit
2. Conceived or born of a subsequent marriage under A53 3. Surviving grandparent, or if there are several of them, grandparent
If there were a pre-nuptial agreement providing that separation of property chosen, over 70 years of age, of sufficient discernment, unless unfit or
regime governed the marriage, then there is no need for liquidation and disqualified
partition. 4. Eldest brother or sister, over 21 years of age, unless unfit or
It must be noted that except in the subsequent void marriage that may arise disqualified
due to the non-observance of A40, there is no need for the delivery of the 5. Child’s actual custodian, over 21 years of age, unless unfit or
presumptive legitime after the marriage is judicially declared void. disqualified
THEREFORE, LAHAT NG VOID MARRIAGES EXCEPT SA ART 40, HINDI 6. Any other person deemed suitable by the court to provide the proper
NA KAILANGAN NG DELIVERY OF PRESUMPTIVE LEGITIME. care and guidance for the child.

Non-compliance with A52 shall be a cause for the non-issuance of a decree of

nullity or annulment. A55: LEGAL SEPARATION (LS) (Please see codal)
Does not affect the marital status, there being no severance of the vinculum.
Appropriate Civil Registry refers to the LCR of the city or municipality where Involves nothing more than bed-and-board separation of the Sps.
the court that issued the decision is functioning and also the LCR of the city or Grounds for LS may or may not exist at the time of the marriage ceremony.
municipality where the marriage was solemnized. The grounds for LS are exclusive.
Registries of Properties, registries of properties where the properties are
located. The husband may have committed concubinage under the following:
1. Maintaining a mistress in the conjugal dwelling
STATUS OF CHILDREN 2. Sexual intercourse with another woman under scandalous
1. Generally, children conceived and born outside a valid marriage or circumstances
inside a void marriage are ILLEGITIMATE. 3. Cohabiting with her in any other place.
2. Children conceived OR born inside an annullable or voidable marriage
are LEGITIMATE A Filipino who obtains an absolute divorce abroad and subsequently marries
3. Children conceived AND born inside a void marriage are a foreigner and cohabits with the same, has technically committed intercourse
ILLEGITIMATE except as provided in A54. with a person not her husband, considering that the divorce obtained abroad
is not recognized in the Philippines and her subsequent marriage therefore is
bigamous.
Abandonment must be willful. Thus, in a case where she left the conjugal A62: During the pendency of the action – provision of A49 shall apply to the
dwelling because she was being battered by the H, the SC ruled that the act support of Sps and the custody and support of the common children.
of the W was for a justifiable cause and therefore, cannot be a ground for LS.
Physical separation alone is not the full meaning of the term abandonment. The 6-month cooling off period can be dispensed with if the ground for
There must be absolute cessation of marital relations, duties and rights, with LS involves VAWC.
the intention of perpetual separation. Unless exempted by law, failure to observe the 6-month period is a ground to
The spouse who left the conjugal dwelling for a period of 3 months or has failed set aside a decision granting legal separation.
within the same period to give any information as to his/her whereabouts shall Nevertheless, what is prevented from being heard is the hearing on the merits
be prima facie presumed to have no intention of returning to the conjugal with respect to the validity or not of the ground for LS. Any other incident such
dwelling. as the determination of the custody, alimony and support pendente lite may be
heard inside the 6-month period.
A56: DENIAL OF PETITION FOR LS If the administrator spouse is dissipating the conjugal assets during the 6-
1. Condonation month period, a motion for injunction may be filed and heard. A MTD may
2. Consented to the commission of the offense/act likewise be filed during the 6-month period if there are grounds to do so.
3. Connivance
4. Both parties have given ground QUANTUM OF EVIDENCE: Proof by preponderance of evidence.
5. Collusion The civil action for LS based on concubinage may proceed ahead of, or
6. Prescription simultaneously with, a criminal action for concubinage, because said civil
A57: PRESCRIPTIVE PERIOD – LS – 5 YEARS FROM THE TIME OF THE action is not one to enforce the liability arising from the offense, even if both
OCCURRENCE OF THE CAUSE the civil and criminal action arise from or are related to the same offense.
If the petition is denied, the court may not compel the parties to live together
The act of giving money to an erring spouse and the fact that no action was as cohabitation is purely a personal act.
taken against her before the court are sufficient to establish forgiveness
amounting to condonation DEATH TERMINATES LS CASE
An agreement between the parties that they agree to live separately from each An action for LS which involves nothing more than the bed-and-board
other, and that they will not object to the other’s act of sexual infidelity, adultery, separation of the Sps is purely personal in character. Being as such, it follows
or concubinage has been declared as void but, though void, is nevertheless that the death of one party to the action causes the death of the action itself.
an expression of their consent to the commission of the sexual infidelity.
Collusion is a corrupt agreement while connivance is a corrupt consenting. A63: EFFECTS OF DECREE OF LS
1. To live separately
A58: Action for LS shall in no case be tried before 6 months shall have lapsed 2. ACP or CPG shall be dissolved and liquidated, but the offending
since the filing of the petition. spouse shall have no right to share in the net profits earned – which
shall be forfeited in accordance with A43(2)
A59: No LS shall be decreed – unless re-conciliation is fully satisfied – and 3. Custody of minor – innocent spouse, subject to A213
despite efforts, reconciliation is highly improbable. 4. Offending spouse – disqualified from inheriting from the innocent
spouse by intestate succession. Provision in favor of the offending
A60: No decree of LS shall be based upon stipulation of facts or a confession spouse – will of innocent spouse – revoked by operation of law.
of judgment. When the decree is issued, the finality is complete after the lapse of the period
Duty of the prosecuting attorney or fiscal to take steps to prevent collusion and to appeal the decision, even if the effects, such as liquidation, has not yet been
to take care that the evidence is not fabricated or suppressed. commenced nor terminated.
Even if the Sps live apart, a spouse can still be held criminally liable for bigamy,
A61: After filing, Sps shall be entitle to live separately. concubinage or adultery.
The court – absent any agreement – appoint either of them or third person to
administer ACP or CPG. Administrator appointed – shall have the same A64: After finality of the decree of LS, innocent spouse may revoke the
powers and duties as those of a guardian. donation in favor of offending spouse – as well as insurance policy even if
declared irrevocable.
Revocation – recorded in the registries of properties.
Alienations, liens and encumbrances – in gf before recording of the complaint Court cannot validly issue a decision compelling the Sps to satisfy A68. Only
for revocation – shall be respected. the mora obligation of the Sps constitutes the motivating factor for making
Revocation or change in designation of insurance – take effect upon written them observe A68.
notification to the insurer. There can be no action for damages merely because of a breach of marital
Action to revoke – donation – brought within 5 years from the time the decree obligation. Other remedies can be availed of.
of LS has become final. If a spouse in bf refuses to comply with A68 and if the property regime is CSP,
he/she may be held liable under A19, 20, 21.
However, if the donation is void, such as in A87, the right to bring an action to Under the Philippine law, a H can be held liable for raping his wife.
declare the nullity of the donation does not prescribe.
A69: Fix the family domicile. In case of disagreement, court shall decide.
A65: Sps reconcile – JOINT MANIFESTATION – under oath – signed by them Court – exempt one spouse – from living with the other – if the other spouse
– filed with the court in the same proceeding for LS. should live abroad or other valid grounds. However – exemption shall not apply
– if not compatible with the solidarity of the family.
A66: Effects of reconciliation Minor follows the domicile of his/her parents.
1. Pending LS proceeding, be terminated in whatever stage
2. Final decree of LS, set aside. But, separation of property and forfeiture A70: Joint responsibility for the support of the family.
of share of the guilty spouse shall subsist – unless Sps agree to revive Expenses and other conjugal obligations – paid from community property – or
their former property regime – through court order – shall be recorded income or fruits of separate properties.
in the proper civil registries. Insufficiency – paid from separate properties.

A67: Agreement to revive the former property regime, contents A71: Management of household – both Sps.
1. Properties to be contributed anew Expenses – same A70.
2. To be retained as separate properties
3. Names of creditors, addresses and amounts owing to each. A72: One spouse neglects duties or commits acts – bring danger, dishonor or
Recording of the order in the registries shall not prejudice creditor not listed or injury – other spouse may apply the court for relief.
notified, unless the debtor spouse has sufficient separate properties to satisfy
the creditor’s claim. ACP or CPG shall be liable for the support of the Sps, their common children
and legitimate children of either spouse.
Not only the revival of the previous property regime but also allowing the If the ACP or CPG insufficient, Sps shall be solidary liable for the unpaid
adoption of another regime of property relations different from that which they balance with their separate properties.
had prior to the filing of the petition for LS. SC En Banc Resolution AM 02-11- In a regime of separate properties, the liability of the Sps to creditors for family
12 expenses shall be solidary.
If the innocent spouse disinherited the guilty spouse, their subsequent Relief mentioned in A72 may refer to filing a case for legal separation or
reconciliation renders ineffectual any disinheritance. nullifying the marriage based on A36, petitioning the court for receivership,
The innocent spouse was given the option to reinstitute the provisions in a will judicial separation of property, or for authority to be the sole administrator of
previously made to the guilty spouse, but which was revoked by operation of the ACP or CPG.
law by the issuance of the decree of LS.
A73: Either spouse – exercise legitimate profession, occupation, business or
activity – without the consent of the other.
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Other spouse may object only on valid, serious and moral grounds.
Disagreement – court shall decide whether:
A68: 1. objection is proper
1. Live together 2. benefit has accrued to the family prior to objection or thereafter.
2. observe mutual love, respect and fidelity
3. render mutual help and support
 If prior, resulting obligation shall be enforced against the community 67 – revival of former property regime
property. If benefit accrued thereafter, against the separate property 128 – Abandonment
of the spouse who has not obtained consent. 135 – Causes for judicial separation of property
Foregoing shall not prejudice rights of creditors in GF. 136 – Sps, jointly file a verified petition, for voluntary dissolution of
ACP, CPG and for the complete separation of their property.
1. General rule, debts and obligations, of whatever nature and regardless
of the time they were incurred whether before or after the marriage A77: Marriage settlements and modifications thereof – in writing – signed by
ceremony, but redounding to the benefit of the family, shall be the parties – executed before the celebration of the marriage.
chargeable against the CPG or ACP and not to the separate property Shall not prejudice 3rd persons – unless they are registered – LCR – where the
of the spouse who incurred the obligation. marriage contract is recorded as well as in the proper registries of property.
2. Also a general rule, an obligation incurred as a result of a spouse’s
exercise of his/her legitimate profession/occupation or as a result of a An oral marriage settlement is therefore void and cannot be ratified by any
spouse’s undertaking of his/her own legitimate business, is an claim of partial execution or absence of objection.
obligation redounding to the benefit of the family or the CPG or ACP The parties cannot stipulate that the CPG or ACP will start at the time other
and therefore, shall be shouldered by the CPG or ACP. than the precise moment of the celebration of the marriage because such
3. However, in case of profession which are seriously invalid and agreement is void under A88 and 107. Likewise, the parties cannot stipulate
immoral, the separate property of the erring spouse shall be liable for that they can make any substantial donation to each other during their
all obligations even if benefits accrued in favor of the family, provided marriage because such donation is void under A87.
that such benefits accrued after the objection. Also, in case a marriage is terminated by death, and there has been no
Clearly, for as long as the obligations inured to the benefit of the family, liquidation of the previous marriage, the surviving spouse, if he/she decides to
the ACP or CPG shall be liable. marry, cannot execute a marriage settlement providing for a regime other than
For the exception to apply, the innocent spouse must have no knowledge CSP because A103 and 130 specifically provide that, in such a remarriage,
of the other spouse’s engagement in an immoral activity prior to his/her the property regime must be CSP.
objection.
EXCEPTIONS
The last paragraphs of A103 and 130 of the FC provide for the exceptions to
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE the general rule that the ante-nuptial agreement must be in writing and
that, in the absence of an ante-nuptial agreement or if the same is void, the
A74: ACP regime will prevail.
1. Marriage settlements 1. That in the event that a marriage is terminated by the death of one
2. FC of the Sps and the surviving spouse marries again without
3. Local customs initiating any judicial or extrajudicial settlement of the properties
of his/her previous marriage within 1 year from the death of the
A75: Future Sps – in marriage settlements – agree upon deceased spouse, a mandatory regime of COMPLETE
a. ACP SEPARATION OF PROPERTY shall govern the property relations
b. CPG of the subsequent marriage.
c. CSP
d. Any other regime LOCAL CUSTOMS (LC)
e. Absence of agreement, or regime agreed upon is void, ACP is the When the parties stipulate in their marriage settlement that LC shall apply or
default. that the ACP shall not govern, the only recourse would be to apply the custom.
If the marriage settlement neither provides that ACP or local custom shall
A76: Modifications in the marriage settlements – valid – must be made prevail, without particularizing any other valid property regime, such provision
BEFORE the celebration of the marriage. is void. Being void, the ACP shall prevail.
Exceptions: post-marriage modification - A66, 67, 128, 135 and 136 – Judicial
approval only is needed A78:
66 – effects of reconciliation
At present, an 18-year old person deciding to marry may validly execute a Donation – movable – orally or in writing. But if the value exceeds 5,000,
marriage settlement even without obtaining the consent of the persons donation and acceptance shall be in writing.
designated in A14. Donation – immovable – in a public document, specifying the property and the
value.
A80:
1. Stipulation that other country’s law will apply Requisites of valid Donation Propter nuptias (DPN)
2. Without such stipulation, Philippine law shall govern, regardless of the 1. Valid marriage settlement
place of the celebration of the marriage and their residence. 2. Marriage settlement must stipulate a property regime other than the
The above shall not apply: ACP
1. Both Sps are aliens 3. Donation in marriage settlement must not be more than 1/5 of his/her
2. Extrinsic validity of contracts affecting property not situated in the present property
Philippines, and executed in the country where the property is located 4. Must accepted by the would be spouse
3. Extrinsic validity of contracts entered into the Philippines, but affecting 5. Must comply with the requisites under CC on donations.
property situated in a foreign country, whose laws require different
formalities for its extrinsic validity. If there is a marriage settlement providing for a particular property regime other
If the contracting parties are Filipinos, their property relations will be governed than ACP, such as CPG and CSP, and there is also a DPN not included in a
by Philippine laws in the absence of any agreement to the contrary, even if marriage settlement but contained in a separate deed, the not more than 1/5
they are married abroad or even if they reside abroad. limitation will not apply. Instead, the general rules on donation shall govern.
However, properties shall always be subject to the law of the country where it A85: DPN of property subject to encumbrances shall be valid.
is situated. In case where a contract is entered into involving properties In case of foreclosure, and the property is sold LESS than the amount of the
abroad, the extrinsic validity of such contract, whether executed here or obligation secured, donee not liable.
abroad, will not be governed by Philippine laws. If the contract were executed If the property is sold for more than the total amount of the obligation, donee
here, the laws of the country where the property is located may govern the entitled to the excess.
extrinsic validity of the contract.
A86: REVOCATION OF DPN
A81: Everything stipulated in the settlements or contracts in consideration of 1. Marriage not celebrated or judicially declared void ab initio except
future marriage, including donations – void – if marriage does not take place. donations made in the marriage settlements which shall be governed
However, stipulations that do not depend upon the celebration of the marriage by A81
shall be valid. 2. Marriage takes place without the consent of parents/guardian – may
or may not be revoked
DONATIONS BY REASON OF MARRIAGE 3. Marriage is annulled, and donee acted in BF – revoked by operation
of law
A82: Made before celebration of marriage, in consideration of the same, in 4. Upon LS, donee is the guilty spouse – may or may not be revoked
favor of one or both future Sps 5. If it is with resolutory condition and the condition is complied with –
may or may not be revoked
A83: governed by the rules on ordinary donations 6. Donee committed acts of ingratitude (A765) – may or may not be
revoked
A84: Future Sps agree other than ACP, they cannot donate to each other more a. Donee commit offense - against person, honor, property – donor,
than 1/5 of their present property. Any excess, VOID. his wife, children under his parental authority
Donations of future properties, shall be governed by testamentary succession b. Imputes criminal offense – to donor – or any act involving moral
and the formalities of wills. turpitude – even though he should prove it – unless the crime or
act has been committed against – donee, his wife or children
Donation propter nuptias c. Unduly refuses donor support when the donee is legally or morally
Donee must accept the donation personally, or through an authorized person bound to give support
with a SPA; otherwise, void. All actions whose period are not fixed by the CC or in other laws must be
Acceptance must be made during the lifetime of the donor and the donee. brought within 5 years from the time the right of action accrues.
If the marriage is not celebrated, the right of action accrues from the moment When the waiver takes place, the creditors of the spouse who made such
the marriage is not solemnized on the fixed date. waiver may petition the court to rescind the waiver to the extent sufficient to
If the donation is void as it is contained in a marriage settlement, the period cover the amount of their credits.
does not prescribe.
A90: Provisions of CO-OWNERSHIP shall apply to ACP in all matters not
The mere fact that a marriage is provided by law as void is not enough for the provided.
donor to have the right to revoke the donation. There must be a judicial
declaration that the marriage is void. A91: Unless provided in the marriage settlement, the ACP shall consist of all
property owned by the Sps at the time of the celebration of the marriage or
5 situations that can arise depending on the reason for the nullity of the acquired thereafter.
marriage.
1. If the subsequent marriage is void pursuant to A40 in relation to A52 A92: EXCLUDED FROM ACP
and 53, the donation shall be revoke by operation of law if the donee 1. Acquired during the marriage by gratuitous title, and the fruits and
spouse contracted the subsequent void marriage in BF. income thereof, unless expressly provided by the donor, testator or
2. Bad faith on the part of both Sps in a subsequent marriage, where one grantor
of them previously obtained a judicial declaration of presumptive death 2. Personal and exclusive use of either spouse. However, jewelry not
under A41 to be able to marry, donation shall be revoked by included.
operation of law. 3. Acquired before the marriage who has descendants by a former
3. Other void marriages, except A40, the donor shall have the option marriage, and the fruits and income thereof.
to revoke or not to revoke the donation after finality of a judicial Descendants include grandchildren, great grandchildren, and all other
declaration of nullity of marriage. legitimate descendants.
4. In a bigamous marriage, the second spouse may or may not revoke.
However, the donation made by the spouse who contracts the IN SHORT:
bigamous marriage may be considered void if they were already guilty 1. Marriage settlement
of adultery or concubinage at the time of the donation. 2. Gratuitous title
5. Both parties in GF, donor, after finality of the judicial declaration of 3. Personal and exclusive use
nullity, may or may not revoke. 4. Property from previous marriage

A93: Property acquired during the marriage, presumed to belong to the ACP,
A87: Every donation, grant of gratuitous advantage – direct or indirect – unless proved to be excluded.
between Sps – during marriage – VOID – except MODERATE GIFTS – on
occasions of family rejoicing. A94: CHARGES UPON AND OBLIGATIONS OF THE ACP (Please see codal)
Provision applies to LIVE-IN relationship. Support of illegitimate children shall be governed by the provisions on Support
under the FC. Support shall be taken from the separate property of the spouse.
In case of absence or insufficiency, the ACP shall pay but the payments shall
SYSTEM OF ABSOLUTE COMMUNITY be considered as advances.

All properties own by the parties BEFORE the marriage ceremony and those A95: Lost during the marriage – game of chance, betting, sweepstake, any
which they may acquire THEREAFTER shall comprise the ACP. other kind of gambling – permitted or prohibited by law – borne by the loser –
shall not be charged to the ACP – but winnings – shall form part of the ACP.
A88: ACP commence at the precise moment that the marriage is celebrated. However, if a stranger just gave, without consideration, one of the Sps a
Any stipulations, express or implied, for the commencement of the ACP at sweepstake ticket which eventually won and such spouse was paid the prize
some other time, VOID. money, the winning shall be considered separate property in accordance with
A92(1) unless the donor express otherwise.
A89: No waiver of rights, interests, shares and effects of the ACP during the
marriage can be made, except in case of judicial separation of property. A96: Administration and enjoyment – both Sps.
Disagreement – H’s decision shall prevail – subject to recourse by the W – 2. When a reappearing spouse or an interested person under A41 files
within 5 years from the date of the contract implementing such decision. an affidavit of reappearance to terminate the subsequent marriage of
If one spouse incapacitated or unable to participate in the administration – the present spouse validly contracted with another person.
other spouse may assume sole powers of administration – powers does not But if either of the Sps contracted the subsequent marriage in BF,
include powers of disposition or encumbrance – must have authority of the his/her share in the net profits of the ACP shall be forfeited in
court or written consent of the other spouse – otherwise, VOID. accordance with the law.
However – transaction as continuing offer on the part of the consenting spouse
and 3rd person – may be perfected upon acceptance by the other spouse or A100: Separation in fact shall not affect the ACP except
authorization by the court – before the offer is withdrawn by either or both 1. Spouse who leaves the conjugal home or refuses to live therein – w/o
offerors. just case – shall not have the right to be supported
2. Consent of one spouse – any transaction is required by law – judicial
EFFECT OF INCAPACITY OF ONE OF THE SPOUSES ON authorization shall be obtained in a summary proceeding
ADMINISTRATION 3. Absence of sufficient ACP – separate property of both Sps – shall be
If the subject spouse is an incompetent, who is in a comatose or semi- solidarily liable for the support of the family. Present spouse shall –
comatose condition, a victim of stroke, cerebrovascular accident, without proper petition in a summary proceeding – be given judicial authority
motor and mental faculties, and with diagnosis of brain stem infarct, the proper to administer or encumber any specific separate property of the other
remedy is a JUDICIAL GUARDIANSHIP proceeding under R93 and not a spouse – and use the fruits or proceeds to satisfy the latter’s share.
summary proceeding under the FC.

A97: Either spouse may dispose by will of his/her interest in the ACP
Provided that the grant will not encroach on the lawful legitimes of the
compulsory heirs.
However, considering that an ACP is a co-ownership, the spouse can only
dispose his/her interest in the community property and not in a specific
property.

A98: Neither spouse – donate- community property – without consent of the

other spouse.
Either spouse – without the consent – make moderate donations from the
community property – for charity or on occasions of family rejoicing or distress.

A99: DISSOLUTION OF ACP

1. Death of either spouse
2. Decree of LS
3. Annulment or nullity
4. Judicial separation of property during the marriage under A134-138

Termination of ACP does not mean termination of the marriage. But the
termination of the marriage simultaneously results in the dissolution of the
ACP.

As a general rule, there is no ACP in void marriages. The property relation is

governed by co-ownership (A147 and 148).
Exception:
1. subsequent void marriage that could exist by the non-observance of
A40.