Void Marriages under the Family Code

1.    Under Article 4 of the Family Code, absence of the following essential(Art 2) and formal(Art 3) requisites:
                                a. Legal Capacity- must be 18 yrs and above, must be between a man and a woman(no same-sex marriage), no subsisting valid marriage or valid bigamous marriage, or even void marriage unless such has been annulled or automatically terminated or nullified.
                                b. Consent- must be freely given in the presence of solemnizing officer
                                c. Authority of solemnizing officer
                                d. Valid marriage license (exemptions: Art 27, 28, 31, 32, 33 and 34 which are situations in article mortis or at the point of death of one contracting party, of marriages in remote areas, on respect for and recognition of the customs and practices of Muslims and ethnic minorities and policy of state to validate or legitimize illicit cohabitation)
                                 e. Marriage ceremony( no proxy marriage)- with appearance of contracting parties before the SO, personal declaration that they take each other as husband and wife, presence of at least 2 witnesses of legal age.

2. Under Article 35:
                             (1) marriages contracted without legal age - age of majority (legal age) is 18 years and above. Art 38 of Civil Code restricts the capacity to act of minors.
                            (2) marriages solemnized by any person not legally authorized to perform marriages and both parties know about it(they both acted in bad faith)
                             (3) marriages solemnized without a license(exemption: Art 27, 28, 31, 32, 33, 34)
                             (4) bigamous or polygamous marriage(exemption: Art 41-presumptive death)
                             (5) mistake of identity- must refer to the actual identity of the other party
                             (6) marriage contracted without complying first with the following requirements(in case of nullified or annulled marriage) a. recording of judicial declaration of nullity of marriage/decree of annulment, partition and distribution of the properties of the spouses, and the delivery of presumptive legitimes in the appropriate civil registry and registries of property. Read Art 40, 52 and 53 of FC.

3. Under Article 36-psychological incapacity to comply with the essential marital obligation of any party existing at the time of solemnization even if such incapacity becomes manifest only after its solemnization.

4. Under Article 37-incestuous marriages or those contracted between ascendants and descendants, between brothers and sisters, whether full or half-blood, legitimate or illegitimate.

5. Under Article 38- against public policy
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree; (2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

6. In relation to Article 40-subsequent marriage without Judicial Declaration of Nullity (JDN) of previous void marriage.

7. Under Article 41- a marriage contracted during the subsistence of a previous marriage except when there is a declaration of presumptive death of the absentee without prejudice to the reappearance of the absent spouse.

8. Under Article 44- if both spouses of the subsequent marriage acted in bad faith
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• Void marriage is considered as having never to have taken place and cannot be a source of rights.
• Void marriage can never be ratified nor cured by any act of any of the contracting party. Subsequent parental consent can not ratify a void marriage by reason of no parental consent.
• Void marriage can be attacked collaterally(means that the nullity of a marriage can be asserted even if it is not the main or principal issue of a case and that no previous JDN is required by law with respect to any other matter where the issue of voidness of a marriage is pertinent or material, either directly or indirectly.
• Void marriage can be attacked directly(means filing a case precisely putting forth as principle issue the nullity of marriage) in these 3 cases: for purposes of remarriage under Art 40(only the husband or the wife can file the case, for purposes other than remarriage (SeeNinal vs Badayog), and where 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 void.
• Void marriage is imprescriptible.
• As a general rule, the property regime is one of co-ownership. In the disposition of properties, good faith or bad faith of the parties is material in accordance with Art 147 or 148 of FC, as the case may be. Exemption to this rule is a subsequent void marriage (Art 40), where Art 50 applies. If in bad faith, Art 43 para 2 applies to void marriage under Art 40. Read Valdes vs RTC, Gonzales vs Gonzales, Tumlos vs Fernandez, Francisco vs Master Iron Works, Mallilin vs Castillo

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

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. 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 termination of the cohabitation. (144a)

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of third presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. 

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession Reference: Sta. Maria and Family Code