VOID

MARRIAGES

Submitted by: Mystica Rose R. Loria

Submitted to: Dean Delson
 CHARACTERISTICS OF VOID MARRIAGE

Void Marriages are those falling under Article 35 of the Family Code, to
wit:

Article 35. The following marriages shall be void from the beginning:
1) Those contracted by any party below eighteen years of age even with
the consent of parents or guardians;
2) Those solemnized by any person not legally authorized to perform
marriages unless such marriages were contracted with either or both par-
ties believing in good faith that the solemnizing officer had the legal
authority to do so;
3) Those solemnized without a license, except those covered by the
preceding Chapter;
4) Those bigamous or polygamous marriages not falling under Article 41;
5) Those contracted through mistake of one contracting party as to the
identity of the other; and
6) Those subsequent marriages that are void under Article 53.

Void marriages are those which are not valid from its inception. Void marriages
can never be ratified or cured by any act of any of the contracting parties. Void
marriages can never be ratified or cured by any act of any of the contracting parties. It
is different from a voidable or annullable marriage1.

1 Family Relations. Sta.Maria. 2010

 A marriage that is annullable 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
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 collaterally2.

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. That is why the action or defense for nullity is
imprescriptible.

With regard to the consideration of bad faith or good faith in void marriages. As
a general rule, good faith and bad faith are immaterial in determining whether or not a
marriage is null and void. Hence, even if a 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 a marriage because it is incestuous. Also, if a person marries without a
marriage license or one that is spurious and does not fall under the exceptions, the
marriage is void regardless of his or her good faith or bad faith. Likewise, if a person
marries his or her first cousin knowing fully well of such a relationship which he or she
conceals from his or her first cousin, the marriage is still void and it can be nullified

2 Family Relations. Sta.Maria. 2010

even at the instance of the person who conceals the fact as such marriage is void for
being against public policy3.
There are only two exceptions to the general rule that good faith and bad faith
are not relevant in void marriages. These exceptions are all expressly provided by law.
Which are provided hereunder:

First, Article 35(2) states that if either of the contracting parties is in good
faith in believing that a solemnizing officer has authority to solemnize a marriage
though he or she actually has none, the marriage will be considered valid.

Second, in the case provided in Article 41 referring to a person whose

spouse disappears for four years or two years, in the proper cases, the present
spouse may validly marry again if he or she:
1) has a well-founded belief that his or her spouse is dead;

2) procures a judicial declaration of presumptive death; and 3) at

the time of the subsequent marriage ceremony, is in good faith together
with the subsequent spouse; otherwise, the subsequent marriage shall be
considered void in accordance with Article 44.
In these two cases, the good faith even of only one of the contracting
parties shall make the marriage valid. To be void, both of the contracting
parties must be in bad faith.

3 Ibid.
 PROPERTY RELATIONS

When it comes to property relations, good faith and bad faith are controlling
since the good faith and bad faith of one the parties at the time of the marriage are
material.

To emphasize, as a general rule, in a void marriage, the property regime is one

of co-ownership. In the disposition of the co- ownership at the time of liquidation,
whether or not one of the parties is in bad faith is a basic consideration.
This is in accordance with Article 147 or 148 of the Family Code, as the case
may be.
Hence, when only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the co-ownership shall be forfeited in favor of their
common children.
And in case of default of or waiver by any or all of the common children or their
descendants, each vacant share shall belong to the respective surviving 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.
It is noteworthy that the above-stated rule is not applicable to except to a
subsequent void marriage due to the failure of a party to get a prior judicial declaration
of nullity of the previous void marriage pursuant to Article 40 of the Family Code4.
In the latter case, what applies is Article 50 of the Family Code instead of Article
147 and 148 of the said Code.

4 Valdes v. RTC, 72 SCAD 967, 260 SCRA 221

 COLLATERAL AND DIRECT ATTACK

As a general rule, a void marriage can be collaterally attacked. Evidence other

than a judicial decision declaring the said marriage void can be presented to show the
nullity of the marriage5.

In the same breadth, the Supreme Court held in the case of De Castro v. Assidao-
De Castro6 that:

“while the case was one of support, the lower

court can make a declaration that the marriage was
void to determine the rights of the child to be
supported.”

In the above-cited case the High Court rejected the contention that a separate
case for judicial declaration of nullity must be filed first before the lower court, in a
case for support, can rule that the marriage was void.

On the other hand, there are, however, three cases where a direct attack, not a
collateral attack, on the nullity of a marriage must first be undertaken so that the proper
effects provided by law can appropriately apply. To wit:

The first case is provided in Article 40 of the Family Code

which provides that “the absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the basis solely of a
final judgment declaring such marriage void.” In short, for
purposes of remarriage, the only acceptable proof to show the

5 Domingo v. Court of Appeals, 44 SCAD 955, 226 SCRA 572.

6 De Castro v. Assidao-De Castro6 G.R. No. 160172, February 13, 2008, 545 SCRA 162.
 voidness of the first marriage is a judicial declaration issued by the
court directly stating that the first marriage is null and void7.

The second case where a direct attack is necessary when it said

that for purposes other than remarriage, no judicial declaration of
nullity is necessary8.

The third case where a direct attack is required is provided in

Articles 50 in relation to Article 43(3) and in Article 86(1) of the
Family Code.

7 Domingo v. Court of Appeals, 44 SCAD 955, 226 SCRA 572.

8 Niñal v. Bayadog, 328 SCRA 122
 SUPPORT OF SPOUSES AND CUSTODY OF CHILDREN

While the annulment of marriage or declaration of nullity suit is being tried, the
support of the spouses and the custody and support of the common children shall be
governed by whatever agreement the parties have made with respect to the same.
Principally, the spouses and their children shall be supported from the properties of the
absolute community of property or the conjugal partnership of gains as the case may
be during the pendency of the suit for annulment or nullity of marriage in proper cases
(Article 198 of the Family Code). Hence, support pendente lite and custody pendente lite
can be ordered. However, should the court find the agreement to be inadequate, it may
disregard the same and make the necessary provisions which, in its sound discretion,
would be adequate under the circumstances.

Moreover, the court provisionally gives support pendente lite to a spouse who, at
the end of the case, has been found out to be not entitled to the support because his or
her marriage with the one giving the support is void ab initio, the court shall order the
recipient to return to the person who furnished the support the amounts already paid
with legal interest from the dates of actual payment9

9 Section 7, Rule 61 of the 1997 Rules of Civil Procedure

 STATUS OF CHILDREN BORN OUT OF VOID MARRIAGE

Under Article 165 of the Family Code of the Philippines which states that

“children conceived and born outside a valid marriage are illegitimate, unless otherwise

provided in this code.” Correlative thereto, Article 54 of the code also states:

“Children conceived or born before the judgment of

annulment or absolute nullity of marriage under Article 36 has become

final and executory shall be considered legitimate. Children conceived or

born of the subsequent marriage under Article 53 shall likewise be

legitimate.”

As one consequence of the declaration of nullity of marriage, the child or

children shall be considered illegitimate if the legal basis for the dissolution of the

marriage are those grounds enumerated under Article 35, Article 37 (incestuous

marriages and Article 38 (void marriages by reason of public policy).

This legal effect is not, however, applicable if the dissolution of marriage is

grounded on psychological incapacity under Article 36 and Article 53 of the Family

Code of the Philippines. In fact, it is a requirement after the dissolution of the marriage

that the civil registrar will amend the birth certificate of the child. This is in consonance

with Section 22 of A.M. No. 02-11-10-SC (March 4, 2003), Re: Proposed Rule On
Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable

Marriages.

In a similarly illuminating case of Tenebro vs. Court of Appeals, the high Court

rendered that:

“Although the judicial declaration of the nullity of a marriage

on the ground of psychological incapacity retroacts to the date of the

celebration of the marriage insofar as the vinculum between the spouses

is concerned, it is significant to note that said marriage is not without

legal effects. Among these effects is that children conceived or born

before the judgment of absolute nullity of the marriage shall be

considered legitimate. There is therefore a recognition written into the

law itself that such a marriage, although void ab initio, may still produce

legal consequences.10”

10 Tenebro vs. Court of Appeals (G.R. No. 150758, February 18, 2004)