ARTICLE 40: NULL AND VOID MARRIAGE DUE ARTICLE 41: NULL AND VOID MARRIAGE DUE
TO ABSENCE OF JUDICIAL DECLARATION ABSENCE OF JUDICIAL DECLARATION FOR
FOR NULLITY OF PREVIOUS MARRIAGE TEMINATION OF PREVIOUS MARRIAGE
The absolute nullity of previous marriage may be A marriage contracted by any person during the
invoked for purposes of remarriage on the basis subsistence of a previous marriage shall be null
solely of a final judgment declaring such previous and void, unless before the celebration of
marriage void. subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse
Absolute nullity of previous marriage
present has a well-founded belief that the absent
Those marriage which are void from the beginning spouse was already dead. In case of
disappearance where there is a danger of death
Such as: under the circumstances set forth in the provision of
Lack of essential requisites article 391 of the civil code, an absence of only two
years shall be sufficient.
1. Marriage without consent
For the purpose of contracting the subsequent
2. Lack of authority by solemnizing officer marriage under the preceding paragraph, the
spouse present must institute a summary
3. Marriage without license
proceeding as provided in this code for the
4. Bigamous or polygamous marriage declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of
5. Mistake of identity by one party the absent spouse.
6. Void judgment of absolute nullity General Rule
7. Psychological incapacitated partner A marriage contracted by any person during the
8. Incestuous marriage subsistence of previous marriage shall be null and
void.
9. Marriage contrary to public policy.
XPN:
Purpose of invocation of absolute nullity of
previous marriage 1. The spouse is absent for 4 consecutive years or
2 years under the danger of death circumstances
Under the civil code it can be invoke for purposes provided under article 391.
of remarriage.
2. The present spouse has a well-founded belief
Basis of invocation that the absent spouse was already dead.
Final judgment declaring such previous marriage 3. The present spouse initiated a summary
void. proceeding for the declaration of presumptive death
of the absentee (without prejudice to the
Contents of final judgment for nullity of
reappearance of the absent spouse)
marriage
4. before the celebration of subsequent marriage.
1. Voidness of marriage
Judicial declaration of presumptive death
2. Notification to creditors
3. Distribution of conjugal property
4. Partition of conjugal dwelling
5. Delivery of presumptive legitimes
6. Registration of judgment in registry of deeds and
property.
Under the civil code, the continuous absence of a of reappearance of the absent spouse, unless there
spouse for 4 years is sufficient ground to ask the is a judgment annulling the previous marriage or
court to declare such absent spouse through declaring it void.
summary proceeding, presumptively dead without
A sworn statement of the fact and circumstances of
prejudice to his reappearance for purpose of
reappearance shall be recorded in the civil registry
remarry. The year is lessened when the spouse
of the residence of the parties to the subsequent
disappears on the circumstances in danger of
marriage at the instance of any interested person,
death under article 391 of the civil code such as
with due notice to the spouse of subsequent
plane crash, drown of ship or lose during military
marriage and without prejudice to the fact of
war wherein 2 years is sufficient.
reappearance being judicially determined in case
such fact is disputed.
Institution of summary proceeding for Automatic termination of subsequent marriage
declaration of presumptive death.
GENERAL RULE
Who may file
Subsequent marriage is void from the recording of
1. The spouse present the facts of reappearance of the absent spouse in
local civil registry.
Where to file
XPN
1. Family court
1. The previous marriage is declared void.
When to file
Contents of affidavit of reappearance
1. After 4 or 2 consecutive years of disappearance
depending on the circumstances and; 1 sworn statement of facts and circumstances
2. before the celebration of subsequent marriage. 2. Recorded in the local civil registry at the
residence of both parties of subsequent marriage.
What to file
3. With due notice to the spouse of subsequent
1. Petition for judicial declaration of presumptive
marriage.
death for the purpose of remarriage.
4. Without prejudice to the fact of reappearance
Form and contents of petition for declaration.
being judicially determined in case such fact is
1. The spouse has the well-founded belief that his disputed.
spouse was already dead.
Note: In case the fact of reappearance is disputed,
2. And that there was no information of him from the recording of the same does not prejudice the
the time of his disappearance, otherwise the presentation of proof controverting those facts
consecutive disappearance as a ground will not during judicial determination.
apply.
Who may file the sworn statement of
Well-founded belief-judicial declaration as reappearance?
evidence.
1. Any interested person.
It presupposes that the present spouse exercises
Parent, children, present or subsequent
due diligence in searching for the absent spouse
spouse.
before the judicial declaration of presumptive death
should be granted. Valid bigamous marriage
ARTICLE 42: AUTOMATIC TERMINATION OF When a person presumed dead reappeared but
MARRIAGE FOR PURPOSES OF any interested party does not report or submit a
CONTRACTING A SUBSEQUENT MARRIAGE sworn affidavit before the civil registrar.
The subsequent marriage referred to in article 41 ARTICLE 43: EFFECT OF THE TERMINATION
shall be automatically terminated by the recording OF SUBSEQUENT MARRIAGE
1. as to CHILDREN ARTICLE 45: ANULLMENT OF MARRIAGE
a. children of subsequent marriage are legitimate A marriage maybe annulled for any of the following
causes, existing at the time of marriage:
2. as to CUSTODY and SUPPORT
1. Marriage without consent
a. shall be decided by the court in proper
proceeding in case of dispute. 2. Unsound mind-affects his consent or
understanding of marital obligation during
3. as to COMMUNITY OF PROPERTY
celebration of marriage
General rule
3. Consent obtain by fraud-
a. shall be dissolve and liquidated to both
4. Consent obtain by undue influence
parties
5. Physical incapacity
6. Affliction of psychological incapacity
XPN
Burden of proof
a. in case either spouse contracted the said
marriage in bad faith, his share shall be forfeited in ARTICLE 46:FRAUD MENTION IN PAR. 3
favor of their common child, or children of guilty ARTICLE 45
spouse by previous marriage, or to innocent
1. Non-disclosure of previous conviction by final
spouse
judgment of crimes involving moral turpitude.
4. as to DONATION BY REASON OF MARRIAGE
2. Concealment of pregnancy by other man
General rule
3. Concealment of STD
a. shall remain valid
4. Concealment of drug addiction, habitual
XPN alcoholism, or homosexuality or lesbianism existing
at the time of the marriage.
a. if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by ARTICLE 48: DUTY OF THE STATE TO
operation of law. PREVENT COLLUSION BY THE SPOUSES (In
annulment, nullity and legal separation of
5. as to designation of BENEFECIARY OF
marriage)
INSURANCE POLICY
Collusion-in matrimonial cases being "the act of
a. the innocent spouse may revoke the designation
married persons in procuring a divorce by mutual
of beneficiary against the spouse contracted in bad
consent, whether by preconcerted commission by
faith.
one of a matrimonial offense, or by failure, in
5. as to INHERITANCE BY SPOUSE pursuance of agreement to defend divorce
proceedings. (De Ocampo vs. Florenciano L-
a. disqualified to inherit from the innocent spouse 10699, 1957)
by testate or intestate.
There is a collusion if the following elements
ATICLE 44: EFFECTS ON DONATION BY concurred.
REASON OF MARRIAGE IF BOTH SPOUSES
SUBSEQUENT MARRIAGE ACTED IN BAD 1. There is a valid marriage
FAITH
2. The marriage is sought to be extinguished
If both spouses of the subsequent marriage acted
3. By means of:
in bad faith, said marriage shall be void ab initio
and all donations by reason of marriage and a. mutual consent,
testamentary dispositions made by one in favor of
b. confession of judgment or condonation of marital
the other are revoked by operation of law.
offense.
c. stipulation of facts marriage which are declared void ab initio or
annulled by final judgment under article 40 and 45.
4. in pursuance of agreement to defend divorce
proceedings. The final judgment in such cases shall provide for
the liquidation, partition, and distribution, of the
properties of the spouses, the custody and support
ARTICLE 49: SUPPORT PENDING LITIGATION of the common children, and the delivery of their
presumptive legitimes, unless such matters had
During the pendency of the action and in a written been adjudicated in previous judicial proceedings.
agreement between the spouses, the court shall
provide for the support of the spouses and the All creditors of the spouses as well as of the
custody and support of their common children. The absolute community o conjugal partnership shall be
court shall give paramount consideration to the notified of the proceedings for liquidation.
moral and material welfare of the said children and
In the partition the conjugal dwelling and the lot
their choice of the parent with whom they wish to
which it is situated shall be adjudicated in
remain as provided for in Title IX. It shall also
accordance with article 102 ad 129.
provide for appropriate visitation rights of the other
partner. Effects of annulment and nullity provided by article
43 par 2,3,4,5 and article 40 and 45 of the family
SUPPORT PENDING LITIGATION
code.
General rule
ARTICLE 51: DELIVERY OF PRESUMPTIVE
1. Support agreement by the spouse LEGITIMES
XPN In said partition, the value of presumptive legitimes
of all common children, computed as of the date of
1. Duty of the court to determine the final judgment of the trial court, shall be
a. support of the spouses delivered in cash, property or sound securities,
unless the parties, by mutual agreement judicially
b. custody of their common children-no child approved had already provided for such matters.
under 7 years old shall be separated from the
mother unless the court find compelling reasons to The children or their guardian or the trustee of their
order otherwise. property, may ask for the enforcement of the
judgment.
c. visitation rights of the other partner- but the court
for compelling reasons deprived such right to non- The delivery of presumptive legitimes herein
custodial partner. prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon
Duty of the court to determine support. the death of either or both of the parents; but the
value of the properties already received under the
The court will only determine support if absent
decree of annulment of absolute nullity shall be
agreement by the parties or if there is one the same
considered as advance of their legitime
is insufficient.
Presumptive legitime-.
The paramount consideration for determination is
moral and material welfare of the child including GENERAL RULE
their choice of parent. Provided, that no children
under seven years old shall be separated from their 1. Property legitimes of all common child shall be
mother except for compelling reason. delivered in cash, property, or sound securities
ARTICLE 50: EFFECTS AFTER ANULLMENT OF 2. And computed from the date of final judgment of
MARIAGE the trial court.
The effects provided for in paragraph 2, 3, 4, 5, of XPN
article 43 and 44 shall also apply in proper cases to 1. The parties mutually agreed and provide such
matters
2. with judicial approval. 2. Consented to the commission
ARTICLE 52: RECORDING OF JUDGMENT IN 3. Both are in connivance in the commission of the
LOCAL CIVIL AND REGISTRY OF PROPERTY offense constituting grounds for separation
The judgment of annulment or nullity of marriage, 4. Both have given grounds for separation
the partition, and distribution of the properties of the
5. Collusion between the parties
spouses, and the delivery of the children’s
presumptive legitimes shall be recorded in the 6. Action is barred by prescription.
appropriate civil registry and registries of property,
otherwise, the same shall not affect third persons. ARTICLE 57: PRESCRIPTVE PERIOD TO FILE A
PETITION FOR LEGAL SEPARATION
ARTICLE 53: CAPACITY TO REMARRY AFTER
DECLARATION Action for legal separation shall be filed within 5
years from the time of occurrence
Either of the former spouse may marry again after
complying with the requirements of the article 52 ARTICLE 58: WAITING PERIOD BEFORE TRIAL
otherwise, the subsequent marriage shall be null An action for legal separation shall not be tried
and void. before six months shall have elapsed since the
ARTCLE 54: STATUS OF CHILD filing of the petition
2 kinds of children in this article ARTICLE 59: PRE-TRIAL CONCILIATION
1. Children born before judgment of nullity under No legal separation maybe decreed unless the
article 36 shall become final and executory- court has taken steps toward the reconciliation of
legitimate the spouse and is fully satisfied, despite such
efforts, that conciliation is highly improbable.
2. Children born of subsequent marriage in
accordance with article 53.-legitimate ARTICLE 60: DUTY OF THE STATE AGAINST
COLLUSION
ARTICLE 55: LEGAL SEPARATION: GROUNDS
No decree of legal separation shall be based upon
1. Repeated physical violence stipulation of facts or confession of judgment by the
parties.
2. Physical violence or moral pressure
In any case, the court shall order the prosecuting
3. Inducement to prostitution
attorney or fiscal assigned to it to take steps to
4. Conviction of more than 6 years absolute prevent collusion between the parties and to take
care that the evidence is not fabricated or
5. Drug addiction or habitual alcoholism
suppressed.
6. Lesbianism or homosexuality
ARTICLE 61: EFFECT OF LEGAL SEPARATION
7. Bigamous marriage anywhere. TO THE SPOUSE
8. Sexual infidelity or perversion After the filing of the petition for legal separation,
the spouses shall be entitled to live separately with
9. Attempt by the respondent against the life of the each other.
petitioner
The court, in the absence of a written agreement
10. Abandonment by respondent between the spouses, shall designate either of
Note: For this article, child may also include them or third person to administer the absolute
adopted. community or conjugal partnership property. The
administrator appointed by the court shall have the
ARTICLE 56: GROUNDS FOR THE DENIAL OF same powers and duties as those of a guardian
THE PETITION under the rules of court.
1. Condonation or pardon Living separately
From the time of the filing of petition for legal designation if irrevocable. The revocation of the
separation. donation shall be recorded in the registries of
property in the places where the properties are
Designation of administrator
located. Alienations, liens and encumbrances
General rule registered in good faith before the recording of the
complaint for revocation in the registries of property
The spouse shall designate either of them or third shall be respected. The revocation of or change in
person. To administer the absolute community or the designation of the insurance beneficiary shall
conjugal property take effect upon written notification thereof to the
XPN insured.
A written agreement between the spouses. The action to revoke the donations under this
article must be brought within five years from the
Duties and power of the administrator time the decree of legal separation has become
final.
Effect of finality of the decree
ARTICLE 62: SUPPORT PENDING LITIGATION
1. Revocation of donation-against the offending
During the pendency of the action for the action of
spouse
legal separation, the provision of article 49 shall
likewise apply to the support of the spouse and the 1.1 Take effect upon notification to the offending
custody and support of the children. spouse about the revocation.
ARTICLE 63: EFFECTS AFTER LEGAL 2. Cancellation of the designation as beneficiary
SEPARATION in any insurance policy by the innocent spouse in
favor of the offending spouse.
1. The spouse are entitled to live separately with
each other, but the marriage bonds shall not be Prescriptive period of revocation
severed.
1. within five years
2. Absolute community or conjugal partnership shall
be dissolved and liquidated but the offending 2. after the finality of the decree of legal separation.
spouse shall have no right to any share of the net Requisite of a valid revocation
profits earned by the absolute community or the
conjugal partnership, which shall be forfeited in 1. It shall be recorded in the place where such
accordance with the provisions of article 43(2) property is located.
3. Custody of a minor children shall be award to the 2. And notified to the adverse party about such fact
innocent spouse, subject to the provision of article of revocation.
213 of the family code and
ARTICLE 65: SPOUSE RECONCIALITATION
4. The offending spouse shall be disqualified from
If the spouse should reconcile, a corresponding
inheriting form the innocent spouse by intestate
joint manifestation under oath duly signed by them
succession. Moreover, provisions in favor of the
shall be filed with the court in the same proceeding
offending spouse made in the will of the innocent
of legal separation.
spouse shall be revoked by operation of law.
Contents of reconciliation
ARTICLE 64: REVOCATION OF DONATION BY
REASON OF MARRIAGE; FINALITY OF THE 1. Joint manifestation
DECREE OF LEGAL SEPARATION
2. under oath
After the finality of the decree of legal separation,
3. Duly signed by the parties and;
the innocent spouse may revoke the donations
made by his or her in favor of the offending spouse, 4. Filed with the court where the legal separation is
as well as the designation of the latter as a proceeded.
beneficiary in any insurance policy , even if such
ARTICLE 66: CONSEQUENCES OF Husband and wife shall fix the family domicile. In
RECONCILIATION case of disagreement the court shall decide.
Reconciliation referred to in article 65 has the The court may exempt one spouse from living with
following effect: the other if the latter should live abroad or there are
other valid and compelling reasons for the
1. Legal separation proceedings if still pending,
exemption. However, such exemption shall not
shall thereby be terminated at whatever stage; and
apply if the same is not compatible with the
2. Final decree of legal separation shall be set solidarity of the family.
aside
Family domicile
3. Revival of the property regime otherwise the
Exemption of spouse for solidarity of the family
forfeiture and distribution of the property will
subsist. ARTICLE 70: OBLIGATION TO SUPPORT THE
FAMILY
Consequences of reconciliation
The spouse are jointly responsible for the support
1. Termination of proceeding
of the family. The expenses for such support and
2. Setting aside of the final decree other conjugal obligations shall be paid from the
community property and in the absence thereof,
3. Revival of property regime from the income or fruits of their separate
4. Recording the same in the proper civil registry. properties. I case of insufficiency or absence of
said income or fruits, such obligation shall be
ARTICLE 67: REVIVAL OF PROPERTY REGIME satisfied from their separate properties.
The agreement to revive the former property ARTICLE 71: OBLIGATION TO MANAGE THE
regime referred to in article 66 shall be executed HOUSEHOLD
under oath and shall specify:
The management of household shall be the right
1. The properties contributed anew to the restored and duty of both spouses. The expenses for such
regime management shall be paid in accordance with the
provision of article 70.
2. Those to be retained as separated by each
spouse ARTICLE 72: NEGLECT OF OBLIGATION OF
MARRIAGE
3. The names, address and amount owe to
creditors. When one of the spouses neglects his or her duties
to the conjugal union commits acts which tend to
Forms and contents of revival of the property
bring danger, dishonor or injury to the other or to
regime
the family, the aggrieved party may apply to the
1. It must specify under oath the following court for relief.
1. Property contributed a new ARTICLE 73: EXERCISE OF PROFESSION
WITHOUT CONSENT
2. Properties remained to be separated
Either spouse may exercise legitimate profession,
3. Names, address and amount owed to the occupation, business or activity without the consent
creditors. of the other. The latter may object only on valid,
ARTICLE 68: OBLIGATION OF HUSBAND AND serious, and moral grounds.
WIFE In case of disagreement, the court shall decide
The husband and wife are obliged to live together, whether or not:
observe mutual love, observe mutual love, respect 1. The objection is proper
and fidelity, and render mutual help and support.
2. Benefit has accrued to the family prior to the
ARTICLE 69: OBLIGATION TO FIX DOMICILE objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be
enforced against the community property. If the
benefit accrued thereafter, such obligation shall be
enforced against the separate property of the
spouse who has not obtained consent.
ARTICLE 74 PROPERTY RELATIONS BETWEEN
HUSBAND AND WIFE
ARTICLE 75: MARRIAGE SETTLEMENT FOR
PROPERTY REGIME
ARTICLE 76: MODIFICATION OF MARRIAGE
SETTLEMENT
ARTICLE 77: FORMS AND CONTENTS OF
MARRIAGE SETTLEMENT
ARTICLE 78: MINOR AS CONTRACTING PARTY
OF MARRIAGE SETTLEMENT
ARTICLE 79: REPRESENTATIVE OF A PERSON
PUNISHED WITH CIVIL INTERDICTION
ARTICLE 80: LAWS GOVERNING PROPERTY
RELATIONS.
