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De#ciencies of
the Family Code
of the
Philippines (II): SUBSCRIBE
TO
Void and FAITHWATC
H

Voidable
Marriages?

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 00:00 14:52
WAYS TO S…

Ailiga Travel Villa

Time and again, I have been baffled by the distinction made in the
Philippine Family Code between the so called “void” and “voidable”
marriages. In Canon Law, that distinction would not make any
sense, since in the first place, a valid marriage cannot be voided—
which would be tantamount to the breaking of the marriage bond
(divorce). In the second place, a close reading of the factors
typifying one and the other defective marriage in civil law does not
really result in an essential difference. What is the rationale behind
such distinction?

Distinction between Void and Voidable Marriages according

to Civil Law

According to a well-known civil law commentator, the

fundamental distinction between void and voidable marriages
is that “a void marriage is deemed never to have taken place at
all, while a voidable or annullable marriage is considered valid
and subsisting until it is set aside by a competent court.” [1]
Another commentator, looking deeper into the issue, states
that a void marriage is based on absence of an essential
requisite or requisites, like lack of age, absence of marriage
license when required, public policy (e.g., consanguinity in a
certain degree), and is not subject to ratification—i.e., it is void

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 ab initio. Thus, the action or defense for declaration of nullity
of a void marriage does not prescribe, except as provided by
law. On the other hand, a voidable marriage is based
principally on a vitiated consent and is subject to ratification
by cohabitation (i.e., which would imply a subsequent and
persisting marital consent). [2]

As a result of this general difference, the former commentator

would continue, the following further distinctions arise: (1) a
void marriage can be impugned collaterally, while a voidable
marriage can only be impugned in a direct proceeding for
annulment; (2) a void marriage may be questioned even after Bad breath even after brushin
the death of the parties, while a voidable marriage can no
longer be impugned after either of the parties is dead, in which Learn how I made my breath
case the remaining parties would be treated as if the marriage and fresh again
had been perfectly valid; (3) a void marriage cannot be ratified Besthealthadvices
or confirmed, while a voidable marriage is generally made
perfectly valid by ratification or confirmation, through
continued cohabitation; (4) the validity of a void marriage may
be assailed by any one if the question becomes material, while
an annullable marriage can be generally attacked only by a
party to it, and (5) the action or defense to declare the nullity
of a void marriage generally does not prescribe, while the
action to set aside a voidable marriage prescribes.

An attempt to identify the fundamental difference between

one and the other marriage, however, especially with their
articulation in the Family Code of the Philippines, leads to a
dead end. Typical of the positivistic approach in most civil law

the fundamental difference between one and the other is

&
systems in the present world, one is lead to the conclusion that MOST READ

simply the will of the legislator—who has typified certain

marriages as void and others as voidable. Pope asks
Catholics
to set up,
be
enchanted
Deficient Juridic Structure of Marriage in Philippine Civil by a
Law Nativity
scene
In a number of articles in this column over the years, I have
considered the juridic structure of marriage—in the Law of the Bicol
Church—as standing on three pillars: (1) the capacity to marry bishop

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Page 3 of 13
 of the spouses, (2) matrimonial consent and (3) the canonical appeals for
form. In this scheme, the different factors that can vitiate the prayers as
coming about of marriage (marriage in fieri) can be neatly storm
considered and—even more important in the juridic world— nears
subjected to judicial verification, such that a defect in any one
of the three can result in an invalid marriage (void from the Dialogue
start). Towards
Harmony
In contrast, the provisions of the Philippine Family Code for
void and voidable marriages (Title I, Chapter 3 of the Family
‘Tisoy’
Code) do not show such a clear juridic structure—despite the
makes
quite obvious provenance of its norms from the corresponding
churches
canons of the Code of Canon Law. Thus, absent the juridic
open doors
framework, the civil law provisions for the declaration of to
marriage nullity give the impression of being legalistic or evacuees
casuistic: the process is reduced to a case of lawyering to get a
marriage annulled.
Archbishop
Valles
Had the Family Code followed the juridic framework
takes office
employed in Canon Law for the juridic structure of marriage,
for second
the sources of invalidity of a marriage would have been as
term as
follows: CBCP head

I. Incapacity to Marry (Presence of Diriment Impediment):

Results in Void Marriage

Family Code CIC

a. Lack of Age Art.45, (1): Above c.1083: Man

18 yrs but less than less than 16yrs,
21 yrs, without woman less
consent of parent, than 14yrs.
guardian or
substituted parental
authority over the
party.

N.B. In Family
Code this falls

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 under voidable
marriage.

b. Impotence Art.45, (5): c.1084:

Physically incapable Antecedent and
of consummating perpetual
the marriage with impotence to
the spouse, such have
incapacity intercourse,
continues and either absolute
appears incurable. or relative.

N.B. In Family
Code this falls
under voidable
marriage.

c. Existing Art.35, (4): Those c.1085, §1: A

Marriage bigamous or person who is
Bond polygamous held to the bond
marriages not of a prior
falling under marriage, even
Art.41. if it has not been
consummated.
Art.41: A marriage
contracted during
the subsistence of
a previous
marriage shall be
null and void,
unless the prior
spouse had been
absent for 4
consecutive years
and the spouse
present had a well-
founded belief
that the absent
spouse was
already dead. In
case of
disappearance

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 where danger of
death is present as
provided for by
Art.391 of Civil
Code, an absence
of 2 yrs is
sufficient.

d. Art.37, (1): c. 1091, §1: All

Consanguinity Between degrees of
ascendants and direct line; §2:
descendants of up to 4th degree
any degree, and (2) of collateral line.
Between brothers
and sisters.

Art.38, (1):
Between collateral
blood relatives up
to 4th civil degree.

e. Legal Art.37, (2): c.1092: Affinity

Affinity Between step- in the direct line
parents and step- in any degree.
children; (3):
Between parents-
in-law and
children-in-law.

f. Adoption Art.37, (4): c.1094: Those

Between the related in the
adoptive parent & direct line or in
adopted child; (5) the 2nd degree
Between surviving of collateral line
spouse of adopting through legal
parent & adopted relationship
child; (6) Between arising from
surviving spouse adoption.
of adopted child &
adopter; (7)

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 Between adopted
child & legitimate
child of adopter;
(8) Between
adopted children
of same adopter.

g. Crime Art.37, (9): c.1090, §1: A

Between parties person who for
where one, with the purpose of
the intention to entering
marry the other, marriage with
killed that other another has
person’s spouse, or brought about
his/her own the death of
spouse. that person’s
spouse or one’s
own spouse.

h. Art.36: A marriage c.1095, 3º:

Psychological contracted by any Those who,
incapacity party who, at the because of
time of the causes of a
celebration, was psychological
psychologically nature, are
incapacitated to unable to
comply with the assume the
essential marital essential
obligations of obligations of
marriage, even if marriage, are
such incapacity incapable of
becomes manifest contracting
only after its marriage.
solemnization.

II. Lack of Full Consent: Results in Voidable Marriage

a. Unsound Art.45, (2): Party c.1095, 1º: Those

mind was of unsound who lack the
mind, unless such sufficient use of
party after coming reason are
to reason freely incapable of

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 cohabited with the contracting
other as spouse. marriage.

In CIC this
results in void
marriage.

b. Fraud Art.45, (3): c.1098: A

Consent of either person
party was contracts
obtained by fraud, invalidly who
unless such party enters marriage
afterwards, with inveigled by
full knowledge of deceit,
the facts perpetrated in
constituting the order to secure
fraud, freely consent,
cohabited with the concerning
other as husband some quality of
and wife. the other party,
which of its very
Art.46. Any of the nature can
following seriously
circumstances disrupt the
shall constitute partnership of
fraud: (1) Non- conjugal life.
disclosure of a
previous
conviction of a
crime involving
moral turpitude;
(2) Concealment
by the wife of
pregnancy, at the
time of marriage,
by a man other
than the husband;
(3) Concealment
of a sexually
transmissible
disease existing at
the time of the
marriage; (4)

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 Concealment of
drug addiction,
habitual
alcoholism,
homosexuality or
lesbianism existing
at the time of the
marriage. No other
misrepresentation
shall constitute
fraud as will give
grounds for action
for the annulment
of marriage.

c. Violence Art.45, (4): c.1103: A

Consent of either marriage is
party was invalid which
obtained by force, was entered
intimidation or into by reason
undue influence, of force or of
unless the same grave fear
having imposed from
disappeared or outside, even if
ceased, such party not purposely,
thereafter from which the
cohabited with the person has no
other as husband escape other
and wife. than by
choosing
marriage.

III. Lack of Juridical Form: Results in Void Marriage.

a. Invalid Art.35, (2): Those c. 1108, §1:

solemnizing solemnized by any Only those
officer person not legally marriages are
authorized to valid which are
perform contracted in
marriages, unless the presence of
such marriages the local
were contracted Ordinary or

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 with either or both parish priest or
parties believing in of the priest or
good faith that the deacon
solemnizing officer delegated by
had the legal either of them,
authority to do so. who, in the
presence of two
witnesses,
assists, in
accordance with
the rules set out
in the following
canons…

§2: Only that

person who,
being present,
asks the
contracting
parties to
manifest their
consent and in
the name of the
Church receives
it, is understood
to assist at a
marriage.

b. No license Art.35, (3): Those

solemnized
without license,
except those
covered by the
preceding chapter.

Inconsistencies in the Family Code

Through an attentive examination of the tabulation above, the

following inconsistencies in the Family Code can be seen—
cases which the Family Code classifies as voidable marriages:
lack of age (Art.45, 1), impotence (Art.45, 5) and unsound mind

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 (Art.45, 2).

One might ask: What makes these three cases any different
from the others, which the Family Code classifies as void from
the start? Why should they be considered valid until set aside
by a competent court? For that matter, are not all marriages—
duly celebrated/solemnized—really considered valid until set
aside by a competent court?

To my mind, this betrays a fundamental defect in the

matrimonial law system of the Family Code, which is almost
akin to the acceptance of divorce: the very notion that some
marriages are voidable and not just void ab initio.

In contrast, the Code of Canon Law classifies all three cases as

cases of an invalid marriage—i.e., void ab initio. Hence, even if
in all cases marriages really enjoy the favor iuris or
presumption of validity until a competent court declares its
invalidity, such marriages as are declared invalid would be
invalid ab initio, what the Family Code would call void
marriages.

In conclusion, I think the distinction between void and voidable

marriages in the Family Code is moot and academic. Either a
marriage is valid or invalid.

If a marriage were valid it cannot be invalidated or voided as

that would be tantamount to divorce. On the other hand, even
if it were invalid in itself, with the favor iuris enjoyed by a duly
celebrated/solemnized marriage, it would be considered valid
until declared otherwise by the competent tribunal. Perhaps
this was what should have been referred to as voidable—i.e.,
because it was really void to begin with.

[1] A.Tolentino, Commentaries and Jurisprudence on the Civil

Code of the Philippines, Vol.1, Central Lawbook Publishing
Co., Quezon City (1990), pp.270-310.

[2] J.N. Nolledo, The Family Code of the P hilippines

Annotated (revised ed.), National Bookstore Inc., Manila
(1993), p.43.

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