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ART 38 Marriages between the following

are VOID AB INITIO BY REASON OF


PUBLIC POLICY:
1. Collateral blood relatives (legitimate or
Illegitimate) up to the 4th civil degree;
2. Stepparents and stepchildren;
3. Parentsinlaw and childreninlaw;
4. Adopting parent and the adopted child;
5. Surviving spouse of the adopting parent
and the adopted child;
6. Surviving spouse of the adopted child
and the adopter;
7. Adopted child and legitimate child of
the adopter;
8. Adopted children of the same adopter;
9. Parties where one, with the intention to
marry the other, kills the latters
spouse, or his/her spouse
NOTE: Under the FC, the following can now
marry each other:
a. Brother-in-law and sister-in-law;
b. Stepbrother and stepsister;
c. Guardian and ward;
d. Adopted and illegitimate child of the
adopter;
e. Parties who have been convicted of adultery
or concubinage.
38(1) Collateral blood line constituted by the
series of degrees among persons who are not
ascendants, descendants, but who come from
a common ancestor
- In counting the degrees in the collateral
line, ascent is made to the common
ancestor while descent is made to the
person with whom the computation is to
be made
- Between aunt and nephew 3rd degree
- Between first cousins 4th degree
- Between brothers and sisters 2nd
degree but is not void by reason of
public policy but for being incestuous
under A37(2)
38(2) relatives by affinity a relation formed
by reason of marriage
38(3) relatives by affinity it is scandalous for
parents-in-law to marry their children-in-law
because it is more in keeping with Philippine
customs and traditions that parents-in-law
treat children-in-law like their own children
and vice versa.
Note: this prohibition must necessarily apply
to situations where the marital bond between

the parent-in-laws own child and his or her


child-in-law is already terminated.
38 (4) Adoption a juridical act which creates
between two persons a relationship similar to
that which results from legitimate paternity an
filiation
- Relationship created by adoption is
exclusive between the adopter and the
adopted and does not extend to the
relatives of either
Adopted child considered legitimate son or
daughter of the adopter at all intents and
purposes
38(5,6) the use of the term surviving spouse
restricts or limits the application of A38(5).
If the marital bond between the adopting
parent and his or her spouse is terminated
not by reason of death, the marriage
between the adopters previous or former
spouse and the adopted is valid.
38(7) the adopted child is prohibited from
marrying only the legitimate child of the
adopting parent, hence, marriage between an
adopted child and an illegitimate child is a
valid marriage.
38(8) The adopted child is prohibited from
marrying the following:
a. the adopter;
b. the surviving spouse of the adopter;
c. the legitimate children of the adopter;
and
d. other adopted children of the same
adopter.
The adopter is prohibited from marrying the
following:
a. adopted child; and
b. surviving spouse of the adopted child.
38(9) So long as the killing is for the purpose
of contracting a marriage with the surviving
spouse, the marriage will be void ab initio
even if the surviving spouse is not aware of
such plan.
ART 39 DECLARATION OF ABSOLUTE
NULLITY OF MARRIAGE
A petition for declaration of absolute nullity of
a void marriage may be filed solely by the
husband or the wife.

Effect of death of a party in a petition for


declaration of nullity of marriages:
1. Before the entry of judgment The
court shall order the case closed and
terminated without prejudice to the
settlement of estate in proper
proceedings.
2. After the entry of judgment The
decision shall be binding upon the
parties and their successorsininterest
in the settlement of the estate.
ART 40 JUDICIAL DECLARATION OF
ABSOLUTE NULLITY
1. For purposes of remarriage judicial
declaration of absolute nullity is
necessary.
Note: In the instance where a party who has
previously contracted a marriage which is
legally unassailable, he is required by law to
prove that the previous one was an absolute
nullity. But this he may do on the basis solely
of a final judgment declaring such previous
marriage void.
2. For purposes other than remarriage no
judicial action is necessary.
Note: Here, evidence may be adduced,
testimonial or documentary, to prove the
existence of the grounds rendering such a
previous marriage an absolute nullity. But
these need not be limited solely to an earlier
final judgment of a court declaring such
marriage void.
ART 41 44 SUBSEQUENT MARRIAGE
General rule:
1. any marriage contracted by any person
during the subsistence of a previous
marriage shall be null and void; and
2. any person who shall contract a second
or subsequent marriage before the
absent spouse has been declared
presumptively dead by means of a
judgment rendered in the proper
proceedings is guilty of the crime of
bigamy.
Exception: valid subsequent marriage during
the subsistence of a prior marriage:
1. the Absent spouse had been absent for
4 consecutive years (ordinary absence)

or 2 consecutive years (extraordinary


absence);
2. the present spouse has a wellfounded
belief that the absent spouse is already
dead; and
3. there is judicial Declaration of
presumptive death in a summary
proceeding.
Note: If both spouses of subsequent marriage
acted in bad faith, such marriage is void ab
initio (A44)
Requisites for Declaration of Presumptive
Death (Rep v Nolasco)
1. the Absent spouse has been missing for
4 consecutive years or 2 consecutive
years if the disappearance occurred
where there is danger of death under
the circumstances laid down in A391,
Civil Code;
2. that the present spouse wishes to
remarry;
3. that the present spouse has a wellfounded belief that the absentee
spouse is dead; and
4. that the present spouse files a
summary proceeding for the declaration
of presumptive death of the absentee
Note: once the reappearance of the absentee
spouse is clearly established in a manner
required by law, the presumption of death of
the absentee is rendered ineffective.
Affidavit of Reappearance
- Recording of affidavit of reappearance of
the absentee spouse in the civil registry
will result to automatic termination of the
subsequent marriage. Hence, the second
spouse (subsequent marriage) can
immediately contract another marriage.
- May be filed and executed by any
interested person and not only the
reappearing spouse
Effects of the Termination of Subsequent
Marriage
43(1) Status of Children children of such
marriage conceived prior to its termination are
considered legitimate
43(2) Dissolution and Liquidation of Property
Regime

The absolute community or the


conjugal partnership shall be dissolved
and liquidated
- If either of spouse has contracted the
marriage in bad faith, his or her share
of net profits of the property shall be
forfeited in favor of the common
children
43(3) Donations by reason of marriage
remain valid. However, if the done
contracted the marriage in bad faith, such
donations made to said done are revoked
by operation of law.
43(4) under Insurance Code, if the
designation of the beneficiary in the
insurance policy is irrevocable, the insured

has no right to change the beneficiary he


designated in the policy.
However, if one of the spouses acted in
bad faith and he or she had been
designated as the beneficiary in any
insurance policy of the innocent spouse,
the latter has the right to revoke such
designation even if the designation be
stipulated as irrevocable.
43(5) the parties thereto cease to be a
legal heir of each other, unless the parties
are collateral blood relatives within the 5th
civil degree.

ART 45 47 VOIDABLE MARRIAGES


GROUND
Marriage of a party 18
years of age or over but
below 21 solemnized
without the consent of
the parents, guardian or
person having
substitute parental
authority over the party,
in that order

Either party was of


unsound mind

RATIFICATION
Contracting party who failed
to obtain parental consent:
Through free cohabitation
after
attaining the age of 21.
Note: The parents cannot
ratify the marriage. The
effect of prescription on their
part is that they are barred
from contesting it but the
marriage is not yet cleansed
of its defect.
Insane spouse: Through free
cohabitation after coming to
reason.

WHO MAY FILE


By the contracting
party
Parent, guardian, or
person having legal
charge of the
contracting party

Consent of either party


was obtained by fraud
Vices of consent such
as force, intimidation
or undue influence

Injured party: Through free


cohabitation after the vices
have ceased or disappeared.

Impotence and STD

May not be ratified but


action may be barred by
prescription only, which is 5
years after the
marriage

Unsound Mind
It is essential that the mental incapacity must
relate specifically to the contract of marriage
and the test is whether the party at the time
of the marriage was capable of
understanding the nature and consequences
of the marriage.
Circumstances constituting fraud
1. Nondisclosure of conviction by final
judgment of crime involving moral
turpitude;
2. Concealment by the wife of the fact that
at the time of marriage, she was pregnant
by a man other than her husband;
3. Concealment of Sexually transmitted
disease, regardless of nature, existing at
the time of marriage;

At any time before


such party has
reached the age of 21

Sane person who had


no knowledge of the
others insanity

At any time before the


death of either party

Any relative,
guardian or person
having legal charge
of the insane

At any time before the


death of either party

Insane spouse
Injured party: Through free
cohabitation with full
knowledge of the facts
constituting the fraud.

WHEN TO FILE
Within 5 years after
attaining the years of
21

Injured party

Injured party

Injured party

During a lucid interval


or after regaining
sanity
Within 5 years after
the discovery of fraud
Within 5 years from
the time the force,
intimidation, or undue
influence disappeared
or ceased
Within 5 years after
the celebration of
marriage

4. Concealment of Drug addiction, habitual


alcoholism, homosexuality and lesbianism

Drug Addiction
Declaration of nullity of marriage:
a. The drug addiction must amount to
psychological incapacity to comply with
the essential obligations of marriage;
b. It must be antecedent (existing at the
time of marriage), grave and incurable:
Annulment of marriage:
a. The drug addiction must be concealed;
b. It must exist at the time of marriage;
c. There should be no cohabitation with full
knowledge of the drug addiction;

d. The case is filed within five (5) years from


discovery.
Note: If drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur
only during the marriage,
they will:
a. Not constitute as grounds for declaration
of nullity. (Art. 36, FC)
b. Not constitute as grounds to render the
marriage voidable. (Arts. 45 and 46 of the
FC)
Impotence is a ground for annulment when it:
1. Exists at the time of the Celebration of
marriage
2. Permanent (does not have to be absolute)
3. Incurable
4. Unknown to the other spouse
5. Other spouse must not also be Impotent
Doctrine of triennial cohabitation
If after 3 years of living together with her
husband, the wife remained a virgin, the
husband is presumed to be impotent.
Sexually Transmitted Disease is a ground for
annulment when it:
a. One of the parties is afflicted with STD
b. STD must be:
- Existing at the time the marriage is
celebrated
- Serious
- apparently Incurable
c. The other spouse must not be aware of
the others affliction
d. Injured party must be free from STD.
Art 45
Ground for annulment

Does not have to be


concealed
Must be serious and
incurable
The STD itself is the
ground for annulment

Art 46
The STD is a type of
fraud
which is a ground for
annulment
Must be concealed
Need not be serious
nor
incurable
It is the concealment
that
gives rise to the
annulment

ART 48 ADDITIONAL REQUIREMENTS FOR


ANNULMENT OR DECLARATION OF NULLITY
1. Prosecuting attorney or fiscal should:
a. Take steps to prevent collusion between
the parties

b. Take care that evidence is not fabricated


or suppressed
2. The following must be accomplished:
a. Partition and distribution of the properties
of the spouses
b. Delivery of the childrens presumptive
legitimes
c. Recording of the judgment of annulment
or absolute nullity.
ART 49 EFFECTS OF PENDENCING
ACTIONS/DECREE
1. The court shall provide for the support of the
spouses,
2. The custody and support of the common
children, giving paramount consideration to their
moral and material welfare, their choice of
parent with whom they wish to remain.
3. The court shall also provide for visitation
rights of other parent.
Note: Art. 363 (CC): No child under 7 years shall
be separated from the mother unless there is a
compelling reason to do so.
ART 50 54 EFFECTS OF NULLITY
The final judgment shall provide for the ff:
1. Liquidation, partition and distribution of
the properties of the spouses;
2. Custody and support of the common
children; and
3. Delivery of their presumptive legitimes.
Unless such matters had already been
adjudicated in previous judicial proceedings, in
which case, the final judgment of nullity or
annulment need not provide for those which
have already been adjudicated.
Note: Where there was a failure to record in the
civil registry and registry of property the
judgment of annulment or absolute nullity of the
marriage, the partition and distribution of the
property of the spouses, and the delivery of the
childrens presumptive legitimes, it shall not
affect third persons. (Arts. 52 & 53)
Forms of presumptive legitime
1. cash
2. property
3. sound security
Before one contracts a subsequent marriage, he
or she must comply with the requirement
provided for in Art. 52, namely:
the recording in the civil registries and registries
of properties of the following:

1. Judgment of annulment;
2. Partition;

3. Distribution of properties; and


4. Delivery of presumptive legitimes

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