FAMILY CODE

MARRIAGE
SOURCE: PERSONS AND FAMILY RELATIONS DEAN STA. MARIA

ARTICLE 35
INTRIGUING STATEMENT FROM THE AUTHOR:
A court appointed guardian and his or her ward can marry each
other and likewise stepbrothers and stepsisters can validly marry
each other. A stepbrother marrying a stepsister is not considered
an incestuous marriage???
Basis: Only marriages declared void by the legislature should be
treated as such. There can be no other void marriages outside
those specifically provided by law.
Article 37, Void Marriages for being Incestuous- Between brothers
and sisters whether full or half-blood.
1. VOID VS. VIODABLE MARRIAGE – NINAL VS. BADAYOG

VOID MARRIAGES VOIDABLE MARRIAGES

A marriage that is void ab initio is A marriage that is annullable is

considered as having never to considered valid until the court
have been taken place and cannot declares otherwise;
be a source of rights;

Void marriages can never be Voidable marriages generally can

ratified; be ratified by free cohabitation
and prescription;

A void marriage can be attacked A voidable marriage cannot be

collaterally; assailed collaterally except in a
direct proceeding;

A void marriage can be questioned But voidable marriage can be

even after the death of the parties;
assailed only during the lifetime of
the parties and not after the death
of either parties in which case the
parties and their offspring will be
left as if the marriage had been
perfectly valid;

The action or defense for nullity is Unlike in voidable marriage the

imprescriptible; action prescribes;

But any proper interested party Only the parties or those

may attack the void marriage; designated by law such as parents
or guardians to a voidable
marriage can assail it

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 Void marriages have no legal
effects except those declared by
law concerning the properties of
the alleged spouse regarding co-
ownership or ownership through
actual joint contribution (as
provided in Article 50 in relation to
Article 43 and 44 as well as Article
51 and 53 of the Family Code);
On the contrary, generally the
property regime governing
voidable marriages is conjugal
partnership or absolute
community and the children
conceived before its annulment
are legitimate;

BRIEF SUMMARY OF CASES:

SUNTAY VS. CO-JUANGCO-SUNTAY 1998

The fundamental distinction between void and voidable

marriages is that a void marriage is deemed never to have taken
place at all. On the other hand, a voidable marriage, is considered
valid and produces all its civil effects, until it is set aside by final
judgment of a competent court in an action for annulment.
Children conceived of voidable marriages before the decree of
annulment shall be considered legitimate; Stated otherwise, the
annulment of "the marriage by the court abolishes the legal
character of the society formed by the putative spouses, but it
cannot destroy the juridical consequences which the marital union
produced during its continuance." A marriage that
is annulled presupposes that it subsists but later ceases to have
legal effect when it is terminated through a court action. But in
nullifying a marriage, the court simply declares a status or
condition which already exists from the very beginning.

NINAL VS. BADAYOG – SEE TABLE ABOVE FOR COMPARISON

Voidable and void marriages are not identical. A marriage that

is annulable is valid until otherwise declared by the court; whereas
a marriage that is void ab initio is considered as having never to
have taken place 21 and cannot be the source of rights. The first can
be generally ratified or confirmed by free cohabitation or
prescription while the other can never be ratified. A voidable
marriage cannot be assailed collaterally except in a direct
proceeding while a void marriage can be attacked collaterally.
Consequently, void marriages can be questioned even after the
death of either party but voidable marriages can be assailed only
during the lifetime of the parties and not after death of either, in
which case the parties and their offspring will be left as if the
marriage had been perfectly valid. 22 That is why the action or
defense for nullity is imprescriptible, unlike voidable marriages
where the action prescribes. Only the parties to a voidable marriage
can assail it but any proper interested party may attack a void
marriage. Void marriages have no legal effects except those
declared by law concerning the properties of the alleged spouses,
regarding co-ownership or ownership through actual joint

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contribution, 23 and its effect on the children born to such void
marriages as provided in Article 50 in relation to Article 43 and 44
as well as Article 51, 53 and 54 of the Family Code. On the
contrary, the property regime governing voidable marriages is
generally conjugal partnership and the children conceived before its
annulment are legitimate.

However, other than for purposes of remarriage, no judicial

action is necessary to declare a marriage an absolute nullity. For
other purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate, dissolution
of property regime, or a criminal case for that matter, the court may
pass upon the validity of marriage even in a suit not directly
instituted to question the same so long as it is essential to the
determination of the case. This is without prejudice to any issue
that may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose
is other than to remarry. The clause "on the basis of a final
judgment declaring such previous marriage void" in Article 40 of
the Family Code connotes that such final judgment need not be
obtained only for purpose of remarriage.

2. VOID MARRIAGES CAN NEVER BE RATIFIED OR CURED

BY ANY ACT OF THE CONTRACTING PARTIES. De Castro vs.
Assidao-De Castro GR 160172 & Republic vs. Dayot 175581

Neither could estoppel or acquiescence apply to

remedy the infirmity. Thus even if one parties stated under
oath that in his or her marriage application that he or she
was 21 years old when in fact he or she was only 16 years of
age and the marriage was solemnized at the time he or she
was a minor, the marriage is still void and can still be
judicially declared as void. The parties cannot invoke that the
16 year old or other party who knew the infirmity is estopped
from invoking such infirmity just because in the marriage
application the parties agreed to state the false age.

Likewise, if in order to be exempt from procuring

marriage license, the parties stated in their sworn statement
that they were cohabiting continuously for 5 years to comply
with the time requirement of the law when in fact they only
cohabit for two years and the marriage was consequently
solemnized, such marriage is still void and the parties can
nullify the marriage on the ground of absence of marriage
license as infirmity in the marriage cannot be cured by their
misrepresentation in their sworn statement of affidavit and
neither they could be estopped by such misrepresentation.

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3. WHEN THE SUPREME COURT APPLIES THE PROCEDURE
ON RES JUDICATA (SPLITTING A CAUSE OF ACTION) OVER
SUBSTANTIAL LAW ON THE PRINCIPLE THAT VOID
MARRIAGES CANNOT BE VALIDATED DIRECTLY OR
INDIRECTLY. Mallion vs. Alcantara GR 141528

Where the petitioner, after being denied the nullity of

his marriage via petition based on psychological incapacity,
subsequently filed another petition for nullity of marriage
based on the absence of marriage license, the Supreme court
directed the dismissal of the subsequent case on the ground
that petitioner violated the rule against splitting-a-cause of
action and the rule on res judicata applied and the petitioner
waived all the defects.

The Supreme Court said that a case for nullity of

marriage involved only one cause of action and the different
grounds for nullity of marriage did not mean different cause
of action. Hence, in not invoking the ground of absence of
marriage license in the first case and then in filing a
subsequent case invoking the said ground, the petitioner
violated the rule against splitting-a-cause of action.
Accordingly, the petitioner was considered to have been barred
by res judicata.

This ruling in Mallion case appears to have given more

weight to procedure rather than substantive law which
should not be the case. The decision did not take into account
that no amount of ratification, waiver, acquiescence or
estoppel can validate a void marriage.

4. BAD FAITH AND GOOD FAITH AS A GENERAL RULE IS

IMMATERIAL IN A MARRIAGE THAT IS NULL AND VOID.
BUT SUBJECT TO TWO EXCEPTIONS.

As a general rule, good faith and bad faith are

immaterial in determining whether a marriage is null and
void.

Hence, even if the woman believed in good faith that she

married a man not related to her but who, in truth and in
fact, was her long-lost brother, her good faith will not cure the
infirmity even if she willingly and freely cohabited with him
for a reasonable length of time after discovering the
relationship. She can still nullify such marriage because it is
incestuous. What if the woman or the brother-husband will

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not file declaration of nullity of their marriage? Is the status
of their marriage remained as null and void?

CHI MING TSOI VS. CA

NO INJURED PARTY IN NULL AND VOID MARRIAGES

Nonetheless, the party who knew that he or she was

entering a void marriage before its solemnization my be held
liable for damages by the other contracting party under the
Human Relations in the Civil Code especially Article 19, 20
and 21 thereof.