Lecture
No. 3
CIVIL
LAW REVIEW I LECTURE SERIES
Articles 27 to 54, Family Code of the Philippines
For:
University of San Agustin School of Law
General
Luna Street, Iloilo City
SY
2017-2018, 1st Semester
By:
Atty. Eduardo T. Reyes, III
Chapter 2. Marriages
Exempted from License Requirement
Art. 27. In case either or
both of the contracting parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license and shall remain valid even
if the ailing party subsequently survives. (72a)
Art. 28. If the residence
of either party is so located that there is no means of transportation to
enable such party to appear personally before the local civil registrar, the
marriage may be solemnized without necessity of a marriage license. (72a)
Art. 29. In the cases
provided for in the two preceding articles, the solemnizing officer shall state
in an affidavit executed before the local civil registrar or any other person
legally authorized to administer oaths that the marriage was performed in
articulo mortis or that the residence of either party, specifying the barrio or
barangay, is so located that there is no means of transportation to enable such
party to appear personally before the local civil registrar and that the
officer took the necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of legal impediment to the marriage. (72a)
Art. 30. The original of
the affidavit required in the last preceding article, together with the legible
copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where it was
performed within the period of thirty days after the performance of the
marriage. (75a)
Art. 31. A marriage in
articulo mortis between passengers or crew members may also be solemnized by a
ship captain or by an airplane pilot not only while the ship is at sea or the
plane is in flight, but also during stopovers at ports of call. (74a)
Art. 32. A military
commander of a unit, who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo mortis between persons within the
zone of military operation, whether members of the armed forces or civilians.
(74a)
Art. 33. Marriages among
Muslims or among members of the ethnic cultural communities may be performed
validly without the necessity of marriage license, provided they are solemnized
in accordance with their customs, rites or practices. (78a)
Art. 34. No license shall
be necessary for the marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal impediment to
marry each other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the
marriage. (76a)
-“Cohabitation for five
years”. –
-Proof of our system being
in part a common law system which recognizes cohabitation or living-in as if
husband and wife.
Requisites:
1.the parties must live as
such for at least five years characterized by exclusivity, and continuity that
is unbroken.[1]
2. They must be without any
legal impediment to marry each other.
The falsity or perjured
affidavit goes into the lack of marriage license and not merely an
irregularity.
Query: May a husband who
left his wife and live exclusively with his mistress for five years, marry his
mistress after the death of his wife?
In other words, must the
condition of being devoid of any legal impediment to marry each other, likewise
continuous and unbroken for the same five year time-frame?
What is the determining
point of “no legal impediment to marry each other”?
Chapter 3. Void and
Voidable Marriages
Art. 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 parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without
license, except those covered the preceding Chapter;
(4) Those bigamous or
polygamous marriages not failing 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.
Art. 36. A marriage
contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations
of marriage, shall likewise be void even if such incapacity becomes manifest
only after its solemnization. (As amended by Executive Order 227)
Rule: Good or bad faith in the involvement by
a party to a marriage is immaterial.
Exceptions:
1. Article 35 (2)- either
of the contracting parties is in good faith in his/ her belief that the
solemnizing officer has the authority to solemnize a marriage
-some form of
misrepresentation employed.
According to Justice
Caguiao: This is to prevent unscrupulous chauvinistic males from deceiving the
girls, because they were made to believe that they are going to be married when
marriage is not what they want. X x x They ask a friend, a notary public, to
appear as if he were the solemnizing officer.
Dr. Arturo Tolentino: There
should be a distinction between : ignorance of the law” and “mistake of fact”.
2. Article 41. A
marriage contracted by any person during subsistence of a previous marriage
shall be null and void, unless before the celebration of the 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.
-Psychological incapacity.
Inability to comply with the essential marital obligations of marriage of one
or both of the parties makes the marriage void. The defect of the marriage must
be present at the time of the marriage but the manifestations of the
psychological incapacity may appear only later.
a)Psychological incapacity must be characterized by: (1)
gravity; (2) juridical antecedence, and (3) incurability. The incapacity must
be grave or serious such that the party would be incapable of carrying out the
ordinary duties required in marriage; it must be rooted in the history of the
party antedating the marriage, although the overt manifestations may emerge
only after marriage; and it must be incurable, or, even if it were otherwise,
the cure would be beyond the means of the party involved.
Deep lasting emotional scar
and emotional disregulation
Incapability as opposed to
mere refusal, to comply with essential marital obligations
Art. 37. Marriages between
the following are incestuous and void from the beginning, whether relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and
descendants of any degree; and
(2) Between brothers and
sisters, whether of the full or half blood. (81a)
Art. 38. The following
marriages shall be void from the beginning for reasons of 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. (82)
(Art. 39. The action or defense for
the declaration of absolute nullity shall not prescribe. However, in case of
marriage celebrated before the effectivity of this Code and falling under
Article 36, such action or defense shall prescribe in ten years after this Code
shall taken effect. (As amended by Executive Order 227) (n))
Amended Art. 39. The action
or defense for the declaration of absolute nullity of a marriage shall not
prescribe. (Amended
by Executive Order No. 227 dated July 17, 1987 and further amended by Republic
Act No. 8533 dated February 23, 1998)
-Judges denying petitions for nullity founded on Art. 36
simply because the parties had endured living together for many years and had
several children.
Who can file the petition for declaration of
nullity of a marriage?
1. Indirect/ Collateral Attack. Affirmative
defense in cases involving support, determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of property regime
or criminal case for bigamy for that matter.
-Court may pass upon the
validity of the marriage even if the suit was not directly instituted to assail
the validity of marriage
2. Direct Attack. Article 40. “For purposes
of remarriage”.
-Only the husband or
the wife can file a court case to directly attack the
validity of their marriage. (S.C. Resolution A.M. No. 02-11-10-SC). “Sec. 2.
Petition for declaration of absolute nullity of void marriages. – (a) Who
may file.- A petition for declaration of absolute nullity of void marriage may
be filed solely by the husband or the wife.”
-Fujiki v. Marinay[2]. “Only the parties in a subsisting marriage can file a
case for declaration of nullity of a subsequent bigamous marriage. The other
“spouse” in a subsequent marriage cannot file the case considering that his or
her marriage is void”.
Art. 40. The absolute
nullity of a previous marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous marriage void. (n).
- For purposes of remarriage
-Bigamy
-Scenario 1. 1st marriage is
Void between A & B. B marries C, without obtaining a judicial declaration
of nullity of marriage.
Scenario 2. Ist marriage is Valid between A
& B. B marries C without obtaining a judicial declaration of nullity of
marriage.
Is the second marriage valid? No in both
cases. But on what ground?
In scenario 1, the subsequent marriage is VOID for VIOLATION OF ARTICLE 40, i.e., failure to obtain a judicial declaration of nullity of a previous void marriage. But not on account of bigamy because the first marriage being void, there is no first marriage to speak of.
In scenario 2, this is the "real" bigamy which is contemplated of in Article 35 (4), i.e., "those bigamous or polygamous marriages not falling under Article 41", because the first marriage is likewise valid.
The DISTINCTION would spell a world of difference as to the legal ramifications of the subsequent marriage once declared void as to legitimate status of children borne of such marriage, partition and liquidation of common properties, requirement as to issuance of decree of nullity, and many others.
And furthermore, on the CRIMINAL DIMENSION of the issue,
In scenario 1, the subsequent marriage is VOID for VIOLATION OF ARTICLE 40, i.e., failure to obtain a judicial declaration of nullity of a previous void marriage. But not on account of bigamy because the first marriage being void, there is no first marriage to speak of.
In scenario 2, this is the "real" bigamy which is contemplated of in Article 35 (4), i.e., "those bigamous or polygamous marriages not falling under Article 41", because the first marriage is likewise valid.
The DISTINCTION would spell a world of difference as to the legal ramifications of the subsequent marriage once declared void as to legitimate status of children borne of such marriage, partition and liquidation of common properties, requirement as to issuance of decree of nullity, and many others.
And furthermore, on the CRIMINAL DIMENSION of the issue,
Are B & C guilty of criminal Bigamy in scenarios 1 & 2?
In Mercado v. Mercado[3]. Justice Vitug dissenting: While the accused may have
violated Article 40, such violation is not a bar in invoking the nullity of the
first marriage because Article 40 merely aims to put certainty as to the void
status of the subsequent marriage and is not aimed as a provision to define
bigamy under the Family Code or criminal bigamy under the Revised Penal
Code.
Very interestingly, in MORIGO v. PEOPLE[1],
the Supreme Court acquitted an accused of the charge of Bigamy on account of
the first marriage being void ab initio notwithstanding the absence of a
judicial declaration of nullity. Thus:
“To our mind, the primordial
issue should be whether or not petitioner committed bigamy and if so, whether
his defense of good faith is valid.
The petitioner
submits that he should not be faulted for relying in good faith upon the
divorce decree of the Ontario court. He highlights the fact that he contracted
the second marriage openly and publicly, which a person intent upon bigamy
would not be doing. The petitioner further argues that his lack of criminal
intent is material to a conviction or acquittal in the instant case. The crime
of bigamy, just like other felonies punished under the Revised Penal Code,
is mala in se, and hence, good faith and lack of criminal intent
are allowed as a complete defense. He stresses that there is a difference
between the intent to commit the crime and the intent to perpetrate the act.
Hence, it does not necessarily follow that his intention to contract a second
marriage is tantamount to an intent to commit bigamy.
For the
respondent, the Office of the Solicitor General (OSG) submits that good faith
in the instant case is a convenient but flimsy excuse. The Solicitor General
relies upon our ruling in Marbella-Bobis v. Bobis,[18] which
held that bigamy can be successfully prosecuted provided all the elements
concur, stressing that under Article 40[19] of
the Family Code, a judicial declaration of nullity is a must before a party may
re-marry. Whether or not the petitioner was aware of said Article 40 is of no
account as everyone is presumed to know the law. The OSG counters that
petitioners contention that he was in good faith because he relied on the
divorce decree of the Ontario court is negated by his act of filing Civil Case
No. 6020, seeking a judicial declaration of nullity of his marriage to Lucia.
Before we delve
into petitioners defense of good faith and lack of criminal intent, we must
first determine whether all the elements of bigamy are present in this case.
In Marbella-Bobis v. Bobis,[20] we
laid down the elements of bigamy thus:
(1) the
offender has been legally married;
(2) the first
marriage has not been legally dissolved, or in case his or her spouse is
absent, the absent spouse has not been judicially declared presumptively dead;
(3) he
contracts a subsequent marriage; and
(4) the
subsequent marriage would have been valid had it not been for the existence of
the first.
Applying the
foregoing test to the instant case, we note that during the pendency of CA-G.R.
CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in
Civil Case No. 6020, to wit:
WHEREFORE,
premises considered, judgment is hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo and Lucia Barrete on August
23, 1990 in Pilar, Bohol and further directing the Local Civil Registrar of
Pilar, Bohol to effect the cancellation of the marriage contract.
SO
ORDERED.[21]
The trial court
found that there was no actual marriage ceremony performed between Lucio and
Lucia by a solemnizing officer. Instead, what transpired was a mere signing of
the marriage contract by the two, without the presence of a solemnizing
officer. The trial court thus held that the marriage is void ab initio,
in accordance with Articles 3[22] and
4[23] of
the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly
puts it, This simply means that there was no marriage to begin with; and that
such declaration of nullity retroacts to the date of the first marriage. In
other words, for all intents and purposes, reckoned from the date of the
declaration of the first marriage as void ab initio to the
date of the celebration of the first marriage, the accused was, under the eyes
of the law, never married.[24] The
records show that no appeal was taken from the decision of the trial court in
Civil Case No. 6020, hence, the decision had long become final and executory.
The first element
of bigamy as a crime requires that the accused must have been legally married.
But in this case, legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under the principle of
retroactivity of a marriage being declared void ab initio, the two
were never married from the beginning. The contract of marriage is null; it
bears no legal effect. Taking this argument to its logical conclusion, for
legal purposes, petitioner was not married to Lucia at the time he contracted
the marriage with Maria Jececha. The existence and the validity of the first
marriage being an essential element of the crime of bigamy, it is but logical
that a conviction for said offense cannot be sustained where there is no first
marriage to speak of. The petitioner, must, perforce be acquitted of the
instant charge.
The present case
is analogous to, but must be distinguished from Mercado v. Tan.[25] In
the latter case, the judicial declaration of nullity of the first marriage was
likewise obtained after the second marriage was already
celebrated. We held therein that:
A
judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent
marriage without first obtaining such judicial declaration is guilty of bigamy.
This principle applies even if the earlier union is characterized by statutes
as void.[26]
It bears
stressing though that in Mercado, the first marriage was actually
solemnized not just once, but twice: first before a judge where a marriage
certificate was duly issued and then again six months later before a priest in
religious rites. Ostensibly, at least, the first marriage appeared to have
transpired, although later declared void ab initio.
In the instant
case, however, no marriage ceremony at all was performed by a duly authorized
solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage
contract on their own. The mere private act of signing a marriage contract
bears no semblance to a valid marriage and thus, needs no judicial declaration
of nullity. Such act alone, without more, cannot be deemed to constitute an
ostensibly valid marriage for which petitioner might be held liable for bigamy
unless he first secures a judicial declaration of nullity before he contracts a
subsequent marriage.
The law abhors an
injustice and the Court is mandated to liberally construe a penal statute in
favor of an accused and weigh every circumstance in favor of the presumption of
innocence to ensure that justice is done. Under the circumstances of the
present case, we held that petitioner has not committed bigamy. Further, we also
find that we need not tarry on the issue of the validity of his defense of good
faith or lack of criminal intent, which is now moot and academic.
WHEREFORE, the instant petition is
GRANTED. The assailed decision, dated October 21, 1999 of the Court of Appeals
in CA-G.R. CR No. 20700, as well as the resolution of the appellate court dated
September 25, 2000, denying herein petitioners motion for reconsideration, is
REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is ACQUITTED from
the charge of BIGAMY on the ground that his guilt has not been proven with
moral certainty.”
Art. 41. A marriage contracted by any
person during subsistence of a previous marriage shall be null and void, unless
before the celebration of the 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 paragraph the 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)
- See Republic v. Bermudez[4], order of the trial court granting petition for judicial
declaration of presumptive death is immediately final and executory.
-
Summary
Judicial Proceedings in Family Court
-
Art. 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)
Reappearance
-See Social Security System v. Jarque Vda. De
Bailon. “such absentee’s mere reappearance, even if made known to the spouses
in the subsequent marriage, will not terminate such marriage”.
-SSS v. Educe A. Azote[5] . “death of the first wife does not legitimize the
status of the second wife who entered into the void subsequent bigamous
marriage”.
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. (n)
Art. 44. If both spouses of
the subsequent marriage acted in bad faith, said marriage shall be void ab
initio and all donations by reason of marriage and testamentary dispositions
made by one in favor of the other are revoked by operation of law. (n)
-Valid bigamous marriage
-Both parties are in GF- valid
-One of the parties in GF, valid
-Both parties in BF, subsequent marriage is
Void
Art. 45. A marriage may be
annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose
behalf it is sought to have the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was solemnized without the consent
of the parents, guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one, such party
freely cohabited with the other and both lived together as husband and wife;
(2) That either party was
of unsound mind, unless such party after coming to reason, freely cohabited
with the other as husband and wife;
(3) That the consent of
either party was obtained by fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud, freely cohabited with the other
as husband and wife;
(4) That the consent of
either party was obtained by force, intimidation or undue influence, unless the
same having disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;
(5) That either party was
physically incapable of consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was
afflicted with a sexually-transmissible disease found to be serious and appears
to be incurable. (85a)
Art. 46. Any of the following
circumstances shall constitute fraud referred to in Number 3 of the preceding
Article:
(1) Non-disclosure of a
previous conviction by final judgment of the other party of a crime involving
moral turpitude;
(2) Concealment by the wife
of the fact that at the time of the marriage, she was pregnant by a man other
than her husband;
(3) Concealment of sexually
transmissible disease, regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug
addiction, habitual alcoholism or homosexuality or lesbianism existing at the
time of the marriage.
No other misrepresentation
or deceit as to character, health, rank, fortune or chastity shall constitute
such fraud as will give grounds for action for the annulment of marriage. (86a)
Art. 47. The action for
annulment of marriage must be filed by the following persons and within the
periods indicated herein:
(1) For causes mentioned in
number 1 of Article 45 by the party whose parent or guardian did not give his
or her consent, within five years after attaining the age of twenty-one, or by
the parent or guardian or person having legal charge of the minor, at any time
before such party has reached the age of twenty-one;
(2) For causes mentioned in
number 2 of Article 45, by the same spouse, who had no knowledge of the other's
insanity; or by any relative or guardian or person having legal charge of the
insane, at any time before the death of either party, or by the insane spouse
during a lucid interval or after regaining sanity;
(3) For causes mentioned in
number 3 of Articles 45, by the injured party, within five years after the
discovery of the fraud;
(4) For causes mentioned in
number 4 of Article 45, by the injured party, within five years from the time
the force, intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in
number 5 and 6 of Article 45, by the injured party, within five years after the
marriage. (87a)
Art. 48. In all cases of
annulment or declaration of absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion between the parties and to take care
that evidence is not fabricated or suppressed.
In the cases referred to in
the preceding paragraph, no judgment shall be based upon a stipulation of facts
or confession of judgment. (88a)
Art. 49. During the
pendency of the action and in the absence of adequate provisions in a written
agreement between the spouses, the Court shall provide for the support of the
spouses and the custody and support of their common children. The Court shall
give paramount consideration to the moral and material welfare of said children
and their choice of the parent with whom they wish to remain as provided to in
Title IX. It shall also provide for appropriate visitation rights of the other
parent. (n)
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. 51. In said partition,
the value of the presumptive legitimes of all common children, computed as of
the date of the final judgment of the 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 or 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 either of both
of the 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)
Art. 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)
Art. 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.
Art. 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.
Comments:
1. Summary of Rules on Status of children
under a Void Marriage:
Rule- Children born during the subsistence of
a void marriage are illegitimate.
Exceptions: a. Article 36; b. Article 41; c.
Void Marriage solely because of non-observance of Articles 52 and 53.
Note: A void marriage under Article 40 produces illegitimate
progeny.
-Sec. 22 (b), Rule On Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (Supreme
Court En Banc Resolution A.M. No. 02-11-10-SC)
x xx
“Except in the case of children
under Articles 36 and 53 of the Family Code, the court shall order the Local
Civil Registrar to issue an amended birth certificate indicating the new status
of the children affected”.
Different kinds of VOID marriages:
Special Kind of Void Marriage Pursuant to
Article 40 of FC
Versus
All other Kinds of Void Marriages under the
Family Code
“Insofar as void marriages
are concerned, paragraphs (2), (3), (4), and (5) of Article 43 exceptionally
apply only to void subsequent marriages that occur as a result of the
non-observance of Article 40.Specifically, they apply to the subsequent void
marriage contracted by a spouse of a prior void marriage before the latter is
judicially declared void.”
“This is the clear mandate
of Article 50. In this case, though the subsequent marriage is void, the
property shall be liquidated as if there is a conjugal partnership of gains or
absolute community property.”
“In all other cases of
a void marriage, other than the void subsequent marriage that
occurs as a result of the non-observance of Article 40, the property regime
shall be governed by the rule on co-ownership provided for in Articles 147 and
148, as the case may be, and not the conjugal partnership of gains or the absolute
community of property. Hence, in these cases where Article 147 or 148 will
apply, the property regime shall be liquidated pursuant to the ordinary
rules on co-ownership pursuant to the Civil Code provided they are
not contrary to the Family Code”.
-Questions: 1.If a marriage
is declared void under Article 36 (Psychological Incapacity) and it becomes
final, should the liquidation of the of the Property Regime be done in the same
family court which rendered the decision?
2. May the ENTRY OF
JUDGMENT be issued without a. registration of the partition and distribution of
the properties of the spouses in the Civil registry where the marriage was
celebrated and in the Civil registry of the place where the Family Court is
located? b.And the delivery of children’s presumptive legitimes in cash,
property, or sound securities?
-See Articles 102 (6) for
liquidation of Absolute Community Property and 129 (9) for Conjugal Partnership
of Gains
-Sec. 21. Rule On
Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages (Supreme Court En Banc Resolution A.M. No. 02-11-10-SC)
“Sec. 21. Liquidation, partition and
distribution, custody, support of common children.
Section 21. Liquidation, partition and distribution, custody,
support of common children and delivery of their presumptive legitimes. -
Upon entry of the judgment granting the petition, or, in case of appeal, upon
receipt of the entry of judgment of the appellate court granting the petition,
the Family Court, on motion of either party, shall proceed with the
liquidation, partition and distribution of the properties of the spouses,
including custody, support of common children and delivery of their presumptive
legitimes pursuant to Articles 50 and 51 of the Family
Code unless such matters had been adjudicated in previous judicial proceedings.
Section 22. Issuance of Decree of Declaration of Absolute
Nullity or Annulment of Marriage." (a) The court shall issue the
Decree after;
(1) Registration of the entry of judgment
granting the petition for declaration of nullity or annulment of marriage in
the Civil Registry where the marriage was celebrated and in the Civil Registry
of the place where the Family Court is located;
(2) Registration of the approved partition
and distribution of the properties of the spouses, in the proper Register of
Deeds where the real properties are located; and
(3) The delivery of the children's
presumptive legitimes in cash, property, or sound securities.
(b) The court shall quote in the Decree the
dispositive portion of the judgment entered and attach to the Decree the
approved deed of partition.
Except in
the case of children under Articles 36 and 53 of the Family Code, the court
shall order the Local Civil Registrar to issue an amended birth certificate
indicating the new civil status of the children affected.
SUMMARY
OF LEGAL RAMIFICATIONS OF
DIFFERENT
VOID MARRIAGES UNDER THE FAMILY CODE
ARTICLE
40 (Failure to Obtain Judicial Declaration of
Nullity of Void Ab Initio Marriage)
|
ARTICLE
52 IN TANDEM WITH ARTICLE 53 (Failure to Record in
Local Civil Registry the Judicial Declaration of Nullity, Liquidation and
Partition and Delivery of Presumptive Legitimes)
|
ANY
OTHER REASON UNDER THE FAMILY CODE (Articles
35, 36 , 37 and 38 Including the real bigamous
marriages)
|
Children are illegitimate
|
Children are legitimate pursuant to Article 53
|
Children are illegitimate EXCEPT those born under Article
36 pursuant to Article 53
|
Liquidation of ACP or CPG required (Also same in
annulment under Art. 45)
|
Governed by co-ownership (Valdez v. RTC)
|
Governed by Co-ownership(Valdes v RTC)
|
Decree of Nullity will only issue after compliance with
Article 52 (Also same in annulment under Art. 45)
|
Decree of Nullity issues without need of compliance with
Art. 53 (see Dino v. Dino)
|
Decree of Nullity issues without need of compliance with
Art. 53 (see Dino v. Dino)
|
Partition and Liquidation
must be done in accordance with Articles 102 (6) for liquidation of Absolute
Community Property and 129 (9) for Conjugal Partnership of Gains
|
Partition and Liquidation may be done extra-judicially
pursuant to Rule 69 Rules of Court
|
Partition and Liquidation may be done extra-judicially
pursuant to Rule 69 Rules of Court
|
Family Home goes to spouse with whom majority of children
choose to remain
|
Family home is divided 50-50
|
Family home is divided 50-50
|
This
lecture outline is in keeping with the duty of the author as member of the Bar
and as an academic to improve the legal profession. Apparently, jurisprudence
on the articles discussed are quite confusing. Thus, this is an attempt at
un-tangling those legal cobwebs that obscure, rather than clarify, legal
ramifications. After all, the refulgence of the legal profession is most high-lighted
when legal principles are explicated and improved through the process of
dialogue.
“The
legal profession has three parts, the judges, the lawyers, and the academics.
When the system works well, it works iteratively. The judges decide the cases
on the basis of the bar’s briefs, which in turn rests, not just upon experience,
but also upon research, articles and treatises written by academics, and the
academics base their work in part upon Court decisions amalgamated and
criticized in light of research, which in turn feeds back to the bench through
the bar, in principle producing better decisions.” – p. 114 The Court and the
World by Stephen Breyer (Associate Justice, US Supreme Court).
[1] Prof.
Sta. Maria, PERSONS AND FAMILY RELATIONS, p. 202 citing Republic v. Dayot, G.R.
No. 175581, March 28, 2008
