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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.

Domingo vs. CA -- For purposes of remarriage, the only acceptable proof to show the voidness of the first marriage is a judicial declaration issued by a court directly stating that the first marriage is null and void (Domingo vs. CA).


Petitioner: Roberto Domingo

Respondents: Court of Appeals and Delia Soledad Avera

Ponente: J. Romero


On May 29, 1991, private respondent Delia Soledad A. Domingo filed the petition entitled "Declaration of Nullity of Marriage and Separation of Property" against Roberto Domingo. The petition, which was filed before Pasig RTC, alleged the following:


they were married on November 29, 1976;


unknown to her (Delia), he had a previous marriage with Emerina dela Paz on April 25, 1969 which

marriage is valid and still existing;


she came to know of the prior marriage only sometime in 1983 when Emerina sued them for bigamy;


since 1979, she has been working in Saudi Arabia and is only able to stay in the Philippines when she would

avail of the one-month annual vacation leave granted by her employer;


Roberto has been unemployed and completely dependent upon her for support and subsistence;


Her personal properties amounting to P350,000.00 are under the possession of Roberto, who disposed some

of the said properties without her knowledge and consent;

(g) while on her vacation, she discovered that he was cohabiting with another woman.

Petitioner filed a Motion to Dismiss on the ground that the declaration of their marriage, which is void ab initio, is superfluous and unnecessary. He further suggested that private respondent should have filed an ordinary civil action for the recovery of the properties alleged to have been acquired by their union.

RTC and CA dismissed the petitioner's motion for lack of merit.


1) Whether or not a petition for judicial delaration of a void marriage is necessary. (If in the affirmative, whether the same should be filed only for purpose of remarriage.)

2) 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.


1) Yes. The nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is defective. Were this so, this inviolable social institution would be reduced to a mockery and would rest on a very shaky foundation.

On the other hand, the clause "on the basis solely of a final judgment delaring such marriage void" in Article 40 of the Code denotes that such final judgment declaring the previous marriage void is not only for purpose of remarriage.

2) Yes. The prayer for declaration of absolute nullity of marriage may be raised together with the other incident of their marriage such as the separation of their properties. 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.

Hence, SC denied the instant petition. CA's decision is affirmed.


G.R. No. 133778,

March 14, 2000


Pepito Niñal and Teodulfa Bellones were married on September 26, 1974, and out of their marriage was born herein petitioners. Teodulfa died on April 24, 1985, after being shot by Pepito. On December 11, 1986, Pepito and respondent Norma Bayadog were married without any marriage license. In lieu thereof, they executed an affidavit that they had lived together as husband and wife for at least five years and were thus exempted from securing a marriage license. On February 19, 1997, Pepito died in a car accident. After his death, his heirs (herein petitioners) filed a declaration to declare the nullity of his marriage to Norma, alleging that the said married was void for lack of a marriage license. Norma filed an action to dismiss, stating that petitioners were not among those who could file an action for annulment of marriage under the Family Code.

Judge Ferdinand Marcos of the RTC in Toledo dismissed the petition after finding that the Family Code was rather silent on resolving the issues in the case.


Is the marriage of Pepito to Norma null and void?


The Supreme Court first decided on the issue of whether there was a valid marriage between Pepito and Norma. The SC reiterated that a valid marriage license is a requisite of marriage, the absence of which renders the marriage void ab initio. Such requirement stems from the State's involvement and participation in every marriage, the maintenance of which the public is interested. Such interest proceeds from the "constitutional mandate that the State recognizes the sanctity of family life and of affording protection to the family as a basic `autonomous social institution'." However, there are instances recognized in the law where a marriage license may be dispensed with. One such instance is found in Article 34 of the Family Code, formerly Art. 76 of the Civil Code, which refers to the marriage of a man and a woman who have lived together and exclusively with each other as husband and wife for a continuous and unbroken period of at least 5 years before the marriage.

It is true that Norma and Pepito were married without a license, working on the assumption that they had been living together for at least five years without benefit of a marriage. However, this 5-year period should be considered as the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity -- meaning that there is no third party involved at any time within the 5 years -- and continuity -- that is unbroken. Otherwise, if such period were computed regardless of whether the parties were capacitated to marry each other or not, then the law would be sanctioning immorality and encouraging parties to have common-law relationships and placing them on the same footing as those who lived faithfully with their spouse.

In this case, it cannot be said that Pepito and Norma had lived together for five years prior to their wedding day. Only 20 months had elapsed between the time Pepito's first marriage was dissolved and his marriage to Norma. Even if Pepito and his first wife had been living separately from each other, they were still married, and his cohabitation with Norma was not the cohabitation contemplated by law. it should have been in the nature of a perfect union under the law but rendered imperfect only by the absence of the marriage contract. The subsistence of the marriage even when there was actual severance of the filial relationship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife".

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)

REPUBLIC vs CA and Molina

GR 108763

13 February 1997 En Banc

Ponente: Panganiban


Roridel Olaviano was married to Reynaldo Molina on 14 April 1985 in Manila, and gave birth to a son a year after. Reynaldo showed signs of “immaturity and irresponsibility” on the early stages of the marriage, observed from his tendency to spend time with his friends and squandering his money with them, from his dependency from his parents, and his dishonesty on matters involving his finances. Reynaldo was relieved of his job in 1986, Roridel became the sole breadwinner thereafter. In March 1987, Roridel resigned from her job in Manila and proceeded to Baguio City. Reynaldo left her and their child a week later. The couple are separated-in-fact for more than three years.

On 16 August 1990, Roridel filed a verified petition for declaration of nullity of her marriage to Reynaldo Molina. Evidence for Roridel consisted of her own testimony, that of two of her friends, a social worker, and a psychiatrist of the Baguio General Hospital and Medical Center. Reynaldo did not present any evidence as he appeared only during the pre-trial conference. On 14 May 1991, the trial court rendered judgment declaring the marriage void. The Solicitor General appealed to the Court of Appeals. The Court of Appeals denied the appeals and affirmed in toto the RTC‟s decision. Hence, the present recourse.


Whether opposing or conflicting personalities should be construed as psychological incapacity?


The Court of Appeals erred in its opinion the Civil Code Revision Committee intended to liberalize the application of Philippine civil laws on personal and family rights, and holding psychological incapacity as a broad range of mental and behavioral conduct on the part of one spouse indicative of how he or she regards the marital union, his or her personal relationship with the other spouse, as well as his or her conduct in the long

haul for the attainment of the principal objectives of marriage; where said conduct, observed and considered as a whole, tends to cause the union to self-destruct because it defeats the very objectives of marriage, warrants the dissolution of the marriage.

The Court reiterated its ruling in Santos v. Court of Appeals, where psychological incapacity should refer to no less than a mental (not physical) incapacity, existing at the time the marriage is celebrated, and that there is hardly any doubt that the intendment of the law has been to confine the meaning of „psychological incapacity‟ to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. Psychological incapacity must be characterized by gravity, juridical antecedence, and incurability. In the present case, there is no clear showing to us that the psychological defect spoken of is an incapacity; but appears to be more of a “difficulty,” if not outright “refusal” or “neglect” in the performance of some marital obligations. Mere showing of “irreconcilable differences” and “conflicting personalities” in no wise constitutes psychological incapacity.

The Court, in this case, promulgated the guidelines in the interpretation and application of Article 36 of the Family Code, removing any visages of it being the most liberal divorce procedure in the wo rld: (1) The burden of proof belongs to the plaintiff; (2) the root cause of psychological incapacity must be medically or clinically identified, alleged in the complaint, sufficiently proven by expert, and clearly explained in the decision; (3) The incapacity must be proven existing at the time of the celebration of marriage; (4) the incapacity must be clinically or medically permanent or incurable; (5) such illness must be grave enough; (6) the essential marital obligation must be embraced by Articles 68 to 71 of the Family Code as regards husband and wife, and Articles 220 to 225 of the same code as regards parents and their children; (7) interpretation made by the National Appellate Matrimonial Tribunal of the Catholic Church, and (8) the trial must order the fiscal and the Solicitor- General to appeal as counsels for the State.

The Supreme Court granted the petition, and reversed and set aside the assailed decision; concluding that the marriage of Roridel Olaviano to Reynaldo Molina subsists and remains valid.


G.R. NO.112019 January 4, 1995

Ponente: Vitug, J.


Plaintiff Louel Santos filed a complaint at the RTC of Negros Oriental voiding his marriage with Julia Rosario Bedia- Santos under Article 36 of the Family Code. RTC dismissed the complaint and CA affirmed the dismissal. Julia left for the U.S. and she did not communicate nor returned to the country.


Does the failure of Julia to come home or at least communicate for more than five years constitute psychological incapacity?


The failure of Julia to return home or to communicate with her husband Leouel for more than five years does not constitute psychological incapacity. Psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.

“Psychological incapacity" should refer 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. The intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated.


G.R. No. 149498 May 20, 2004

Ponente: Corona, J.

FACTS: Lolitas husband, a Japanese, failed to meet his duty to live with, care for and support his family. He abandoned them a month after the marriage. The wife sent him several letters but he never replied. He made a trip to the Philippines but did not care at all to see his family. However, while the husband‟s act of abandonment was doubtlessly irresponsible, it was never alleged nor proven to be due to some kind of psychological illness. Aside from the abandonment, no other evidence was presented showing that the husband‟s behavior was caused by a psychological disorder. It‟s not enough to prove that a spouse failed to meet his responsibility and duty as a

married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness.


Whether Respondent can annul her marriage with Toshio on the ground of psychological incapacity under Article 36 of the Family Code?

HELD: The Supreme Court said that it‟s not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness. It would have greatly helped the wife‟s case had she presented evidence that medically or clinically identified his illness. This could have been done through an expert witness. Psychological capacity cannot be presumed from abandonment. It is not enough to prove that a spouse failed to meet his responsibility and duty as a married person; it is essential that he must be shown to be incapable of doing so due to some psychological, not physical, illness.


G.R. No. 155800 March 10, 2006

Ponente: Tinga, J.


the respondent fabricated friends and made up letters from fictitious characters well before the marriage. She even concealed having an illegitimate son. The gravity of respondent's psychological incapacity is sufficient to prove her disability to assume the essential obligations of marriage. Respondent is evidently unable to comply with the essential marital obligations (Art. 68) to live together, observe mutual love, respect and fidelity and render mutual help and support. It is difficult to see how an inveterate pathological liar would be able to commit to the basic tenets of relationship between spouses based on love, trust and respect.


The root cause of the psychological incapacity must

be: a) medically or clinically identified; b) alleged in the complaint; c) sufficiently proven by experts; and d) clearly explained in the decision.

Psychological incapacity must be proven to be existing at "the time of the celebration" of marriage, although the manifestation of the illness need not be perceivable at such time.

Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Phils., while not controlling and decisive, should be given great respect by our courts.


GR NO. 119190 January 16, 1997

Ponente: Torres, JR., J.


Ching married Gina on May 22, 1988 at the Manila Cathedral, Intramuros, Manila as evidenced by their marriage contract. After the celebration they had a reception and then proceeded to the house of the Ching Ming Tsoi‟s mother. There they slept together on the same bed in the same room for the first night of their married life. Gina‟s version: that contrary to her expectations that as newlyweds they were supposed to enjoy making love that night of their marriage, or having sexual intercourse, with each other, Ching however just went to bed, slept on one side and then turned his back and went to sleep. There was no sexual intercourse between them that night. The same thing happened on the second, third and fourth nights. In an effort to have their honey moon in a private place where they can enjoy together during their first week as husband and wife they went to Baguio City. But they did so together with Ching‟s mother, uncle and nephew as they were all invited by her husband. There was no sexual intercourse between them for four days in Baguio

since Ching avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 (day of their marriage) until March 15, 1989 (ten months). But during this period there was no attempt of sexual intercourse between them. Gina claims that she did not even see her husband‟s private parts nor did he see hers. Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag. Results were that Gina is healthy, normal and still a virgin while Ching‟s examination was kept confidential up to this time. The Gina claims that her husband is impotent, a closet homosexual as he did not show his penis. She said she had observed him using an eyebrow pencil and sometimes the cleansing cream of his mother. She also said her husband only married her to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man Ching‟s version: he claims that if their marriage shall be annulled by reason of psychological incapacity, the fault lies with Gina. He does not want their marriage annulled for reasons of (1) that he loves her very much (2) that he has no defect on his part and he is physically and psychologically capable (3) since the relationship is still very young and if there is any differences between the two of them, it can still be reconciled and that according to him, if either one of them has some incapabilities, there is no certainty that this will not be cured. Ching admitted that since his marriage to Gina there was no sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his hands.


Whether or not Ching is psychologically incapacitated to comply with the essential marital obligations of marriage ?


The Supreme Court affirmed the decisions of the trial court and Court of Appeals in rendering as VOID the marriage entered into by Ching and Gina on May 22, 1988. The Supreme Court held that the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. One of the essential marital obligations under the Family Code is “to procreate children based on the universal

principle that procreation of children through sexual cooperation is the basic end of marriage.” Constant non- fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill this marital obligation is equivalent to psychological incapacity. While the law provides that the husband and the wife are obliged to live together, observer mutual love, respect and fidelity, the sanction therefore is actually the “spontaneous, mutual affection between husband and wife and not any legal mandate or court order (Cuaderno vs. Cuaderno, 120 Phil. 1298). Love is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say “I could not have cared less.” This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy that brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations.

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 of a marriage shall not prescribe. (As amended by Executive Order 227and Republic Act No. 8533; The phrase "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" has been deleted by Republic Act No. 8533 [Approved February 23,


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)


G.R. No.: 145226 February 6, 2004

Ponente: Quisumbing, J.

Although it is stressed in Article 40 of the family code that a judicial

declaration of nullity is a must before a party may re-marry, it should also be considered that bigamy can be successfully prosecuted provided all its elements concur. In this case, one of

the elements of bigamy that is the offender has been legally married is not present. Because legally speaking, the petitioner was never married to Lucia Barrete, with reference to the fact that there is no authority from the solemnizing officer. TERRE vs TERRE

211 SCRA 449

July 3. 1992


[i]Complainant Dorothy Terre was married to her first cousin while respondent Jordan Terre is a member of the Philippine Bar. Notwithstanding his knwoledge that she was married he courted her and since she was convince by his explanation that her prior marriage was void she agreed to marry him.

Respondent disappered later complainant found out that Atty. Terre married a certain Helina Malicdem. She then filed an administrative case for disbarment who . Respodnent Terre claimsing that he had believed in good faith that his prior marriage with complainant Dorothy Terre was null and void ab initio and that no action for a judicial declaration of nullity was necessary.[i]


Whether there is necessity for a judicial declaration of nullity of marriage?


[i]The Court considers this claim on the part of respondent Jordan Terre as a spurious defense. In the first place, respondent has not rebutted complainant's evidence as to the basic fact which underscores that bad faith of respondent Terre. In the second place, the pretended defense is the same argument by which he inveigled complainant into believing that her prior marriage or Merlito A. Bercenilla being incestuous and void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was free to contract a second marriage with the respondent. Respondent Jordan Terre, being a lawyer, knew or should have known that such an argument ran counter to the prevailing case law of the supreme Court which holds that for purposes of determining whether a person is legally free to contract a second marriage , a judicial declaration that the first marriage was null and void ab initio is essential.

Even if we were to assume, arguendo merely, that respondent held that mistaken belief in good faith, the same result will follow. For it we are to hold Jordan Terre to his argument, his first marriage to complainant Dorothy Terre must be deemed valid, with the result that his second marriage to Heline Malicdem must be regarded as bigamous and criminal in character.