Void or Nonexistent Marriages.

What is a void marriage?

A void marriage is one which is nonexistent, i.e., there was no marriage from the beginning.[1]

Note that a void marriage is different from a voidable marriage in that the latter is valid until annulled. The grounds for declaring a marriage null (void marriage) or annulled (voidable marriage) are different from each other. Also, if one seeks the declaration of his/her marriage null, the petition to be filed is a Petition for Declaration of Absolute Nullity of Void Marriage. On the other hand, if he/she seeks the annulment of his/her marriage, the petition to be filed is a Petition for Annulment of Voidable Marriage.[2]

What law governs void marriages?

First off, as marriage is a special contract, their terms and conditions are not merely subject to the stipulations of the contracting parties but are governed by law.[3] Note must be taken that the validity of a marriage and all its incidents must be determined in accordance with the law in effect at the time of its celebration.[4] This means that either the Civil Code or the Family Code shall govern the union. If the marriage was celebrated prior to August 3, 1988 (the effectivity of the Family Code), the Civil Code governs the marriage. Obviously, if the marriage was contracted on or after the said date, the Family Code applies.

What are the marriages considered void under the Family Code?

A. Art. 35 – void due to absence of any essential or formal requisite of marriage

The absence of any of the essential or formal requisites of marriage shall render the marriage void ab initio, except Art. 35 (2).[5] (Kindly see our previous post for the discussion of the formal and essential requisites of marriage.)

The following marriages shall be void from the beginning:

(1) Those contracted by any party below 18 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 by the preceding Chapter [referring to Chapter 2-Marriages Exempt from the License Requirement];

(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.

B. Art. 36 – void by reason of psychological incapacity

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 be void.

Psychological incapacity refers to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support.[6]

(See our article on Psychological Incapacity for further discussions on this ground.)

C. Art. 37 – void for being incestuous, whether the relationship 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.

D. Art. 38 – void for being against public policy

(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;

(2) Between step-parents and step-children;

(3) Between parents-in-law and children-in-law;

(4) Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child;

(6) Between the surviving spouse of the adopted child and the adopter;

(7) Between an adopted child and a legitimate child of the adopter;

(8) Between adopted children of the same adopter; and

(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.

E. Art. 41 – void [referring to a subsequent marriage] due to absence of judicial declaration of presumptive death of the spouse in the previous marriage

If one’s spouse has been absent and the present spouse wishes to remarry, the latter must first institute a summary proceeding for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. Under Article 41 of the Family Code, there are four (4) essential requisites for the declaration of presumptive death:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.[7]

F. Art. 44 – void [referring to a subsequent marriage] where both the present spouse and his/her spouse in the subsequent marriage are in bad faith

Where the absent spouse has been declared presumptively dead and the present spouse contracts a subsequent marriage, that subsequent marriage shall be void if both the spouses in the later marriage acted in bad faith.

G. Art. 53 – void [referring to a subsequent marriage] for failure to comply with Art. 52

Where a person, after the judgment of annulment or of absolute nullity of his/her marriage, seeks to remarry, he/she must first comply with Art. 52 which requires the partition and distribution of the properties of the spouses, and the delivery of the children’s presumptive legitimes. These shall be recorded in the appropriate civil registry and registries of property. Failure to comply with this shall render the subsequent marriage void.



[1] Castillo v. Castillo, G.R. No. 189607, April 18, 2016.

[2] See Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, A.M. No. 02-11-10-SC, March 15, 2003. [3] Tilar v. Tilar, G.R. No. 214529, July 12, 2017. [4] Supra, note 1. [5] Art. 4. [6] Santos v. Court of Appeals, G.R. No. 112019, January 4, 1995. [7] Republic of the Philippines v. Cantor, G.R. No. 184621, December 10, 2013.

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