2.

Actions to be brought

a. Provisions:

Article 39. The following circumstances, among others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship. The consequences of these circumstances are governed in
this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on
account of religious belief or political opinion. A married woman, twenty-one years of age or
over, is qualifi ed for all acts of civil life, except in cases specifi ed by law. (n)

as amended by RA 8533: An act amending Title 1, Chapter 3, article 39 of EO 209, otherwise

known as the Family Code of the Philippines, nullifying the prescriptive period for action or
defenses grounded on psychological incapacity

Article 40. Birth determines personality; but the conceived child shall be considered born for all
purposes that are favorable to it, provided it be born later with the conditions specifi ed in the
following article. (29a)

Article 48. The following are citizens of the Philippines:

(1) Those who were citizens of the Philippines at the time of the adoption of the Constitution of
the Philippines;
(2) Those born in the Philippines of foreign parents who, before the adoption of said
Constitution, had been elected to public offi ce in the Philippines;
(3) Those whose fathers are citizens of the Philippines;
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,
elect Philippine citizenship;
(5) Those who are naturalized in acordance with law. (n)

Article 49. Naturalization and the loss and reacquisition of citizenship of the Philippines are
governed by special laws. (n)

CASES:
Mallion vs. Alcantara

Facts: Oscar Mallion filed a petition with the Regional Trial Court seeking adeclarationof nullity of
his marriage with Editha Alcantara due to psychological incapacity.The RTC denied the petition
for failure to adduce preponderance of evidence. As the decision attained finality, Mallion filed
another petition for a declarationof nullity of marriage, this time alleging that his marriage was
null and void due tothe fact that it was celebrated without a valid marriage license. It was later
dismissed by the petition filed by the respondent on the ground of res judicata and forum
shopping. Hence, this appeal.
Issue: Does a previous final judgment denying a petition for declaration of nullity on the ground
of psychological incapacity bar a subsequent petition fordeclaration of nullity on the ground of
lack of marriage license?

Held: Yes. Res judicata applies. Declaration of nullity of marriage on the ground of lack of
marriage license is barred by earlier decision on psychological capacity. Mallion is simply
invoking different grounds for the same cause of action, whichis the nullity of marriage. When
the second case was filed based on another ground, there is a splitting of a cause of action,
which is prohibited. He is estopped from asserting that the marriage had no marriage license
because he impliedly admitted the same when he did not question the absence of a marriage
license in the first case.

Ablaza v. Republic

FACTS: On October 17, 2000, petitioner Isidro Ablaza filed in the RTC Masbate a petition for the
declaration of the absolute nullity of the marriage contracted on December 26, 1949 between
his late brother Cresenciano Ablaza and Leonila Honato. The petitioner alleged that the marriage
between Cresenciano Ablaza and Leonila Honato had been celebrated without a marriage
license, due to such license being issued only on January 9, 1950, thereby rendering the
marriage void ab initio for having been solemnized without a marriage license. He insisted that
he being his being the surviving brother of Cresenciano who had died without any issue entitled
him to one-half of the real properties acquired by Cresenciano before his death, thereby making
him a real party in interest; and that any person, including himself, could impugn the validity of
the marriage between his brother and Leonila at any time, even after the death of his brother,
due to the marriage void ab initio.

ISSUE: Whether a person may bring an action for the declaration of the absolute nullity of the
marriage of his deceased brother solemnized under the regime of the OLD Civil Code?

Held: YES. The applicable law when marriage was contracted between Cresenciano and Leonila
on December 26, 1949, is the old Civil Code, the law in effect at the time of the celebration of
the marriage. Hence, the rule on the exclusivity of the parties to the marriage as having the right
to initiate the action for declaration of nullity of the marriage under A.M. No. 02-11-10-SC had
absolutely no application to the petitioner. The case was reinstated and its records returned to
RTC for further proceedings.

b. Marriage where onr spouse is absent

Article 41. A marriage contracted by any person during subsistence of a previous marriage shall
be null and void, unless before the celebration ofthe subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present has a well-founded belief that
the absent spouse was already dead. In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient. For the purpose of contracting the subsequent marriage
under the preceding paragraphthe spouse present must institute a summary proceeding as
provided in this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (83a)

ARTICLE 42. The subsequent marriage referred to in the preceding Article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless there
is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement
of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person,
with due notice to the spouses of the subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in case such fact is disputed. (n)
in relation to:

Article 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession. The absentee
shall not be presumed dead for the purpose of opening his succession tillafter an absence of ten
years. If he disappeared after the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened. (n)

Article 391. The following shall be presumed dead for all purposes, including the division of the
estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who
has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has
not been known for four years. (n)

Note:
Ø Although seven years is required for the presumption of death of an absentee in the Civil
Code, Art. 41 of the Family Code makes an exception for the purpose of remarriage by limiting
such requirement to four years.
Ø Art. 41 also limits the required four years in Art. 391 for absence under exceptional
circumstances to only two years.
COMMENTS:

General Rule— Marriage contracted by any person during the subsistence of a previous marriage
is void.

Exceptions: The following subsequent marriage of the present spouse is valid:

1. Subsequent marriage due to ordinary absence where:
a. the prior spouse had been absent for 4 consecutive years;
b. the spouse present had a well-founded belief that absent spouse is dead; and
c. judicial declaration of presumptive death was secured (no prejudice to the effect of the
reappearance of the absent spouse).
2. Subsequent marriage due to extraordinary absence where:
a. the prior spouse had been missing for 2 consecutive years;
b. there is danger of death attendant to the disappearance;
c. the spouse present had a well-founded belief that the missing person is dead; and
d. judicial declaration of presumptive death was secured (no prejudice to the effect of the
reappearance of the absent spouse).
Note:
Ø Institution of a summary proceeding is not sufficient. There must also be a summary
judgment. (BALANE)
Ø Only the deserted spouse can file or institute an action a summary proceeding for the
declaration of presumptive death of the absentee (Bienvenido case)
Ø There must have been diligent efforts on the part of the deserted spouse to locate the absent
spouse. These diligent efforts correspond to the requirement of the law for a well-founded
belief.
Exception to the exception— When both parties to the subsequent acted in bad faith (Art. 44)

CASES:
Jones vs. Hortiguela

FACTS: Marciana Escano and Arthur Jones got married in December 1914. On January 10, 1918,
Jones secured a passport. She never heard from him again. In 1919, she filed for a proceeding to
judicially declare Arthur missing. On October 25, 1919, the court declared Arthur as an absentee
with the proviso that said judicial declaration of absence would not take effect until six months
after its publication in the official newspapers pursuant to Art. 186 of the Old Civil Code. In 23
April 1921, the court issued another order for the taking effect of the declaration of absence,
publication thereof having been made in the Official Gazette and in "El Ideal." On May 6, 1927,
Marciana contracted a second marriage with Felix Hortiguela. When Marciana died intestate,
Felix was appointed as judicial administrator of the estate. Angelita Jones, Marciana’s daughter
from her first marriage, filed a case and alleged that she is the only heir of her mother and that
her mother’s marriage to Felix was null and void on the ground that from April 23, 1921 (when
the court issued an order for the taking effect of declaration of absence & publication thereof) to
May 6, 1927 (her mother and Felix’s marriage) was below the 7-year prescriptive period. With
this, the marriage would be null and void and would render her as the sole heir.

ISSUE: W/N the marriage of Marciana and Felix is valid making Felix a legitimate heir of
Marciana.

HELD: Yes. the marriage of Marciana and Felix is valid making Felix a legitimate heir of Marciana.
The absence of Marciana Escaño's former husband should be counted from January 10, 1918,
the date on which the last news concerning Arthur W. Jones was received, and from said date to
May 6, 1927, more than nine years elapsed. Therefore, the validity of the marriage makes him a
legitimate heir.

Republic vs Nolasco

FACTS: Gregorio Nolasco is a seaman. He met Janet Parker, a British, in bar in England. After
that, Janet started living with Nolasco in his ship for six months. It lasted until the contract of
Nolasco expired then he brought her to his hometown in Antique. They got married in January
1982. Due to another contract, Nolasco left the province. In 1983, Nolasco received a letter
from his mother informing him that his son had been born but 15 days after, Janet left. Nolasco
went home and cut short his contract to find Janet’s whereabouts. He did so by securing
another seaman’s contract going to London. He wrote several letters to the bar where they first
met but it was all returned. Gregorio petitioned in 1988 for a declaration of presumptive death
of Janet.

ISSUE: Whether or not Nolasco had established a well-founded belief that his wife, Janet, is
already dead making it a valid ground for the nullity of their marriage

HELD: No. The Supreme Court ruled that Nolasco’s efforts to locate Janet were not persistent to
show that he has a well-founded belief that his wife was already dead because instead of
seeking assistance of local authorities and the British Embassy, he even secured another
contract. More so, while he was in London, he did not even try to solicit help of the authorities
to find his wife.

Republic vs. Orcelino-Villanueva

FACTS: Edna worked as a domestic helper in Singapore in 1992 while her husband worked as a
mechanic in Valencia, Bukidnon. The two got married on December 21, 1978, in Iligan City. While
she was in Singapore(1993) , her children informed her that her husband left their home without
telling them his whereabouts. Due to this news, she was prompted to go back to the Philippines
to look and find his husband. Edna searched and made inquiries about her husband thru their
common friends, and parents-in-law in Iligan and Valencia City and even went far as to his
birthplace in Negros Oriental. 15 years later she filed to the RTC a petition to declare Romeo
presumptively dead under Article 41 of the Family Code. During the trial, she was presented as
the lone witness.

ISSUE: Whether or not the petition of respondent to have her husband declared presumptively
dead be granted

HELD: No. The petition of respondent to have her husband declared presumptively dead cannot
be granted. Edna claimed that she made diligent search and inquiries to find her husband but it
was found out that it was all consisted of bare assertions without any corroborative evidence on
record. Edna did not present additional witnesses (her children, their common friends, parents-
in-law) but herself alone. There was not even any attempt to seek the aid of the authorities at
the time her husband disappeared. Therefore, her petition is denied.

3. Effects of Nullity

Effects of Termination of Bigamous Marriage (Art. 43 and 44)—

1. Children – conceived prior to its termination considered legitimate
2. Property Regime – dissolved and liquidated (party in bad faith shall forfeit his/her share in
favor of the common children or if there are none, children of the guilty spouse by a previous
marriage, and in case there are none, to the innocent spouse)
3. Donation propter nuptias – remains valid, (but if the donee contracted marriage in bad faith,
donations will be revoked)
4. Insurance benefits – innocent spouse may revoke designation of guilty party as beneficiary,
even if such designation is stipulated as irrevocable
5. Succession Rights – Party in bad faith disqualified to inherit from innocent spouse, whether
testate or intestate
6. Donations - If both parties of subsequent marriage acted in bad faith, any donations and
testamentary dispositions made by one party to the other by reason of marriage will be revoked
(Art. 44)
Effects of Other Void Marriages—
1. 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 [Art. 50(1)]
2. Final judgment in such cases shall provide for the liquidation, partition, and distribution of
the:
a. properties of the spouses
b. custody and support of the common children
c. delivery of their presumptive legitimes
§ unless such matters had been adjudicated in previous judicial proceedings [Art. 50(2)]
§ all creditors (of the spouses/property regime) shall be notified of the proceedings for
liquidation [Art. 50(2 and 3)]
3. In the partition, the conjugal dwelling and lot shall be adjudicated to the spouse with whom
majority of the common children remain (Art. 102 and 129) [Art. 50(4)]
4. Presumptive legitimes, computed as of the date of the final judgment, shall be delivered in
cash, property or sound securities
a. unless the parties, by mutual agreement judicially approved, had already provided for such
[Art. 51(1)]
b. the children/guardian/trustee may ask for the enforcement of the judgment [Art. 51(2)]
c. the delivery of the presumptive legitimes shall not prejudice the ultimate successional rights,
but the value of the properties already received shall be considered as advances on their
legitime [Art. 51(3)]
5. Either of the former spouses may marry again AFTER compliance with the requirements of
Article 52, otherwise, the subsequent marriage is void (Art. 53)
Requirement (Art. 52)— recording in the appropriate civil registry AND registries of property:
a. judgment of annulment/absolute nullity of marriage
b. partition and distribution of the properties of the spouses
c. delivery of the children’s presumptive legitimes otherwise, these shall not affect third persons
6. Generally, children born or conceived within void marriages are illegitimate.
Ø Exception:
§ children conceived or born before the judgment under Article 36 has become final and
executory
§ children conceived or born of subsequent marriages under Article 53
Ø Niñal v. Badayog, (2000) Children of first marriage assailed the validity of the second marriage
contracted by their father without a marriage license and after the latter’s death.
Void marriages can be attacked collaterally and do not prescribe
Ø De Castro v. Assidao-de Castro, (2008) Validity of marriage was attacked collaterally in an
action for support for determining legitimacy of the child

a. Generally -
ARTICLE 50. The effectsprovidedforby 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.

ARTICLE 51. In said partition, the value of the presumptive legitimes of all common children,
computed as ofthe date of the final judgmentofthe trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual agreement judicially approved, had
already provided for such matters. The children of their guardian or
the trustee of their property may ask for the enforcement of the judgment. The
delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the death of eitherofbothofthe parents; but the
value of the properties already received under the decree of annulment or absolute nullity shall
be considered as advances on their legitime. (n)

ARTICLE 52. The judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise,
the same shall not affect third persons. (n)

ARTICLE 53. Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be
null and void.

ARTICLE 54. Children conceived or born before the judgment of annulment or absolute nullity of
the 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.

CASES:
Domingo vs. CA
Facts: Soledad Domingo, married with Roberto Domingo in 1976, filed a petition for the
declaration of nullity of marriage and separation of property. She did not know that Domingo
had been previously married to Emerlinda dela Paz in 1969. She came to know the previous
marriage when the latter filed a suit of bigamy against her. Furthermore, when she came home
from Saudi during her onemonth leave from work, she discovered that Roberto cohabited with
another woman and had been disposing some of her properties which is administered by
Roberto. The latter claims that because their marriage was void ab initio, the declaration of such
voidance is unnecessary and superfluous. On the other hand, Soledad insists the declaration of
the nullity of marriage not for the purpose of remarriage, but in order to provide a basis for the
separation and distribution of properties acquired during the marriage.

Issue: Whether or not the petition entitled "Declaration of Nullity of Marriage and Separation of
Property" is the proper remedy of private respondent to recover certain real and personal
properties allegedly belonging to her exclusively.

HELD: Yes. When a marriage is declared void ab initio, law states that final judgment 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 their presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings. Soledad’s prayer for
separation of property will simply be the necessary consequence of the judicial declaration of
absolute nullity of their marriage. Hence, the petitioner’s suggestion that for their properties be
separated, an ordinary civil action has to be instituted for that purpose is baseless. The Family
Code has clearly provided the effects of the declaration of nullity of marriage, one of which is the
separation of property according to the regime of property relations governing them.

Ninal vs Bayadog

FACTS: Pepito Ninal was married with Teodulfa Bellones on September 26, 1974. They had 3
children namely Babyline, Ingrid and Archie, petitioners. Due to the shot inflicted by Pepito to
Teodulfa, the latter died on April 24, 1985 leaving the children under the guardianship of Engrace
Ninal. 1 year and 8 months later, Pepito and Norma Badayog got married without any marriage
license. They instituted an affidavit stating that they had lived together for at least 5 years
exempting from securing the marriage license. Pepito died in a car accident on February 19,
1977. After his death, petitioners filed a petition for declaration of nullity of the marriage of
Pepito and Norma alleging that said marriage was void for lack of marriage license.

ISSUE: Whether or not the second marriage of Pepito was void? Whether or not the heirs of the
deceased may file for the declaration of the nullity of Pepito’s marriage after his death?

HELD: The marriage of Pepito and Norma is void for absence of the marriage license. They
cannot be exempted even though they instituted an affidavit and claimed that they cohabit for
at least 5 years because from the time of Pepito’s first marriage was dissolved to the time of his
marriage with Norma, only about 20 months had elapsed. Albeit, Pepito and his first wife had
separated in fact, and thereafter both Pepito and Norma had started living with each other that
has already lasted for five years, the fact remains that their five-year period cohabitation was not
the cohabitation contemplated by law. Hence, his marriage to Norma is still void.
Void marriages are deemed to have not taken place and cannot be the source of rights. It can be
questioned even after the death of one of the parties and any proper interested party may
attack a void marriage.