MARRIAGE: two distinct meanings:

1) in one sense it is limited to the procedure by which a man and a woman become husband and wife; the act by which a man and a woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife2) in another sense marriage is a status: involving duties and responsibilities which are no longer matter for private regulations but concern of the State civil status of one man and one woman legally united for life, with rights and duties which for the establishment of families and the multiplication of the species are or from time to time may therafter be, assigned by law to matrimony

Purposes of marriage:1) reproduction

2) education of the offspring

3) mutual help

VOID AND VOIDABLE MARRIAGE

Void Marriages

The following marriages are void spite of their omission from the enumeration contained in Arts 35 to 38 of the Code:

a) marriages where intent to marry is totally wanting (marriages in plays or films, marriages in jest)

b) marriages not solemnized in accordance with law (marriage by proxy, common law marriages)

c) marriages between persons of the same sex

VOID MARRIAGEVOIDABLE MARRIAGE

deemed to have never taken place at all considered valid and subsisting until is set aside by competent court

can be attacked collaterally can be attacked only in a direct proceeding for annulment

may be questioned even after the death of one of the parties can no longer be attacked after one of the parties is dead

cannot be ratified or confirmed can be made perfectly valid by ratification or confirmation through continued cohabitation

validity may be assailed by anyone can generally be attacked only by a party to it

action or defense to declare the nullity of a void marriage generally does not prescribe action to set aside a voidable marriage prescribes

EFFECTS OF VOID MARRIAGE: American jurisprudence: confers no legal rights; as if no marriage had been performedProperty relations: Art 144 of CC: when the marriage is void ab initio, the property acquired either or both of them through their work or industry or their wages and salaries shall be governed by rules on co-ownership whether the parties acted in good or bad faithno conjugal properties or community property formed between partiesFAMILY CODE: a community property or conjugal partnership is formed and is dissolved and liquidated upon declaration of nullity; if one acted in bad faithhis or her share is forfeited in favor of the children of innocent spouse

Status of children: they shall have the same status, rights, and obligations as acknowledged natural children (CC), Family Code: considers them legitimate childrenEFFECTS OF VOIDABLE MARRIAGE: valid and produces all civil effects until set aside by judgment in an action for annulment

Property relations: CC- conjugal partnership arose and if both acted in good faith, each shall share equally in the same manner as in a valid marriage; if one acted in bad faithhe lost his share in the properties, except when conjugal property came mostly or entirely from his work or industry

FC: rule applicable to marriages void from the beginning applies

Status of Children: CC and FC have the same rule: they are legitimate

FC: treats the property relations of the spouses and the status of their children in the same manner, whether the marriage is void or voidableArt 35: void marriages from the beginning

Reasons for provision: (1), (2) and (3) void because of absence of essential or formal requisites of marriage

Marriages below age: below the age of consentvoid

Bigamous marriage: a subsequent marriage contracted by any person during the lifetime of his spouse is illegal and void from its performance, and no judicial decree is necessary to establish the invalidity

MIstake as to identity: mistake as to person himselfsubstitution of another person for the party who is desired in marriage, w/o the knowledge of the other contracting party (ex. Twins)

but when a person merely represents himself to be somebody else, assuming the name o the latter and other party marries him in the belief that he is the person whose name he has assumed there is no mistake in identity

Art 36: psychological incapacity

Nullity of the marriage: void from beginning ; psychological incapacity to comply with essential marital obligations does not affect consentdifferent from physical incapacity (only voidable)Action for Nullity: before FC: prescribes in 10 yearsbut correction made since these are voided from the beginning to no prescriptionArt 37: incestuous marriage

Concept of incestuous marriage: are those contracted by persons related by blood within the degree prohibited by law only marriages within the prohibited relationship are incestuous, even if blood relation exists; some void because of public policyArt 38: void ab initio for reasons of public policy

Other relationships not impediments: Collateral Blood relatives: between uncles and nieces, nephews and aunts prohibition is based on scientific and public opinion

contrary to good morals tend to weaken the race

Killing of Spouse: the law does not require that both the parties to the marriage had conspired to eliminate the spouse that is an obstacle to their marriage. The marriage is void, even if only the killer had that intention and the other party was unaware of that

the person who kills his spouse or the spouse of the other party reveals a complete moral perversion and absolutely disqualifies him to another marriageprinciples of ethics code requires that motive of killing spouse must be to marry a particular person who becomes the party of the subsequent marriage

Criminal conviction: under the CC the author must have been found guiltyFC does not expressly require thiswhat is important is that the killing be for the purpose of removing a spouse that is an obstacle to contemplated marriagecan be proven in a civil case by preponderance of evidenceto declare marriage void ab initioArt 39: action or defense for the declaration of nullity of marriage shall not prescribebefore the FCand falling under art 36such action or defense shall prescribe in ten years after this code takes effect

Art 40: final judgment declaring previous marriage void (need for judicial declaration) Final judgment: w/o such final judgment, the previous void marriage would constitute an impediment to the remarriagem and a marriage license may be denied when not revealed in the application of marriage licensewill absence of judgment invalidate second marriage? when second marriage has all the elements making it validit cannot be invalidatedsince void marriage can be established since it can be attacked collaterallythis only applies in obtaining marriage licenseArt 41: subsequent marriagenull and void (unless before marriage spouse in absent for 4 consecutive yearsdeclaration of presumptive death of spouse w/o prejudice to reappearance of absent spouse)

Prior voidable marriage: if not judicially declared null and void still valid and subsisting

Status of subsequent marriage: bigamous and void if there is subsisting first marriage; exception, if spouse absent for four consecutive years of for two years under special circumstancesPeriod of absence: CC- 7 years for presumption of deathFC: 4 years

CC; reduced to four years and FC: 2 years in the following cases:

a) when spouse on board a vessel lost during sea voyage or an airplane missing

b) armed forces taking part in a war and has been missing for 2 years

c) in danger of death under certain circumstances and has not been known for 2 years

Good Faith: period of absence to rise presumptive death is mandatory. It cannot be shortened on the basis of good faith of the spouse presentif this happens, the marriage would still be null and voidMeaning of absent spouse: absent resulting from leaving or deserting the spouse present ( the spouse present can remarryBurden of proof: when a person has entered into two successive marriages, a presumption arises in favor of the validity of the second marriage and the burden is on the party attacking the validity of the second marriage to prove that the marriage had not been dissolvedArt 42: reappearance of the absent spouse (affidavit of reappearance)automatically terminating the subsequent marriageunless there is judicial declaration annulling the previous marriage or declaring it void ab initioStatus of the subsequent marriage: when contracted in good faith (after 4 years of absence) is valid; not avoidable marriage

if acted in bad faiththe marriage is void ab initio

if spouse present only acted in bad faithmarriage null and void and bigamous

if present spouse acted in good faith and the other party acted in bad faith: will not affect the validity of the marriage but provisions of Art 43 will operate against him (revocation of donations)termination of subsequent marriage: CC; this marriage is voidableannulled by judicial declaration

FC: judicial proceeding is not necessaryterminating of the marriage by the mere recording in the civil registry of an affidavit attesting tio the reappearance of the absentee at the instance of an interested personJudicial termination: the termination by affidavit does not preclude the filing of an action in court to prove the reappearance of the absentee (even advisable)

When no Action is taken: mere reappearance w/o step taken to terminate subsequent marriage: marriage will still be valid

reappearing spouse could not himself enter into another marriage

law admittedly gives legal effect to the second marriage as between the parties to it, until it is terminated

the de facto separation between the spouses of the first marriage would thus have the same effect as legal separation, in which the marriage tie exists but the rights and obligations of the spouse to each other, as well as the conjugal partnership are extinguished to be revived only in case of reconciliationbut in this case reconciliation or reunion cannot legally be effected except by the termination of the second marriage (absence cause suspension of legal effects of marriage as to him as long as the second marriage subsists)Art 43: termination of the subsequent marriage referred in preceding art (consequences or legal effects)Art 44: both acting in bad faith to enter in the said subsequent marriage void ab initio (all donations and testamentary dispositions revoked)Dissolution by death: the effects of a valid marriage shall arisegood or bad faith of parties can no longer be raised, since it cannot be questioned (annullable or voidable marriage) except in direct action for annulment

if both acted in bad faith (void ab initio) it can be attacked collaterallyeffects in Art 44 apply even if dissolution is by death of one of the spousesArt 45: grounds for annullable marriages

Action to annul marriage: action in remconcerns the status of persons and status affects and binds the whole world jurisdiction depends upon the nationality or domicile of the parties not the place of the celebration of the marriage

Annulment and Legal Separation

ANNULMENTLEGAL SEPARATION

caused by some circumstance existing at the time of marriage

terminates the marital bond between the parties

once final, cannot be set aside so as to restore the marital relation caused by some circumstance that arise after the celebration of the marriage

does not terminate marital bond

may be terminated and marital relations resumed by the reconciliation of the parties

(Question: What is annulled but reconciled? )Want of Parental consent: absence of parental consent (between 18 and 21 years of age) renders the marriage voidable it may however, be ratified and may become valid when the party whose parent did not consent to the marriage continues, after reaching the age of twenty one to cohabit with the other as husband and wifeParty of Unsound Mind: marriage s annullable if either party by reason of defect or disease of the mind was incapable of intelligently consenting (insanity) test is whether at the time of marriage party was capable of understanding the nature and consequences of the marriagenot sufficient mentality to measure up to the responsibility of rearing children etc. insanity must exist during the time of the marriage, to avoid it, neither prior nor subsequent insanity being sufficient

Weakness of mind: mere mental weakness, if it does not deprive the party of capacity to understand and appreciate the consequences of the step he is taking, does not affect the validity of the marriage (neither insane delusions or impulses ex. Kleptomaniac)- if he was otherwise normal during marriageBurden of proof: presumption in favor of sanity: he who alleges the insanity of another has the burden of proving it but once general insanity is proved to exist, it is presumed to continue and if a recovery or a lucid interval is alleged, the burden to prove such allegation is on the person making itIntoxication: a marriage may be annulled where one of the parties was so intoxicated he or she had no mental capacity to give a valid assentbut where the intoxication was not such as to deprive the party of his reason, annulment was refusedRatification: insane: ratification after gaining reason; no right of action is given to the sane spouse (he knew insanity of the other party and is placed in estoppel; but if he did not know insanity he can be given right of action any time before death of spouse; no provision that he ratifies the marriage by continually cohabiting with insane spouse after learning of such insanitythis does not prescribe or invoke art 36 of the Code (psychological incapacity)

Marriage through fraud: contract of marriage is more difficult to avoid because of the fraud than are ordinary contracts FC limits cases of fraud that are annullablerestrictive enumerationnot other case of fraud may be admitted (Art 46)

Force or Intimidation: the duress or force must be one as to prevent the party from acting as a free agent, his will being destroyed by fear or compulsion (to be ground for annulment)

fear of death or bodily harm (voidable)

when man is compelled to marry a girl under threats of imprisonment under a void process or false charge (annullable)

if marriage was entered into to escape certain punishment for seduction, it cannot be annulled even if secured through threats of prosecution for the crime of which the party is guilty

a duress can not be said to have induced the marriage where the induced party had sufficient time and opportunity for deliberation and reflection after the time when the alleged duress was exerted and before the time when the marriage ceremony was performed

Physical Incapacity: to be ground for annulment:a) incapacity exists at the time of the marriage

b) such incapacity continues to the time when the case for annulment is being tried

c) it appears to be incurable

d) must be unknown to the contracting party

impotence due to old age: cannot be annulled

if capacity can be remedied through treatment or surgical operation: not annullable

test is ability to copulate, clack of capacity for sexual act and not merely sterility

Triennial Cohabitation: if the wife be a virgin and apt after three years of cohabitation the husband will be presumed impotent and the burden will be upon him to overcome the presumption and does not prevent impotency to be proved by any other proper evidenceAction Barred:

a) if the other party had knowledge of the incurable impotence before the marriage, because this would imply that he renounces copulation which is a personal right

b) if both spouses are impotent and such impotence existed before marriage, continues and appears to be incurable since in this case the impotent could not have expected to copulate with the other spouse

Sexually Transmissible Disease: requisites:a) must exist at the time of marriage

b) Disease found to be serious

c) Appears to be incurable

d) It was unknown to the other party when the marriage was solemnized

Reason: danger for the health of the spouse and the children

Prejudicial Question:case for annulment of marriage can be considered a prejudicial question to a bigamy case to show that consent to the second marriage was obtained by duress, violation or intimidation

Ratification of Voidable mArriage: voidable marriage subject to ratification through continued voluntary cohabitation by the party entitled to bring the action for nullity the case of nullity has ceased to exist

When cohabitation has continued for such a length of time, after the cause of nullity has ceased to exist, as to give rise to a reasonable inference that the party entitled to bring the action for nullity prefers to continue with the marriage, there is ratification which purges the marriage of its original defectmarriage becomes PERFECTLY VALIDsubsequent change of mind of the party formerly entitled to bring the action will not revive the nullity even if prescribed period has not yet lapsed RATIFICATION: right of action itself

PRESCRIPTION: refers to remedythere can be no remedy if there is no more right of action

Marriages not subject to ratification:

a) One spouse Incurably impotent b) One spouse with incurable STD

RATIFICATION cures a defect in consent it cannot cure a physical defect

c) Marriage where a sane spouse marries an insane spouse without knowledge of the insanitysane spouse cannot be barred from asking for annulment even if he has continued to cohabit with the insane spouse after learning of such insanity ART 46: fraud in marriageEffect of Article: fraud must relate to some facts material to the marital relation not accidental matters such as health, rank, fame, fortune, habits etc But where fraud relates to essential matters affecting health or well-being of parties themselves or offsprings from the marriage it had been held sufficient

Present article enumerates the only case which will be accepted as fraud sufficient to annul marriage

Conviction of crime: requisites:

a) Th e crime involves moral turpitude

b) There has been a conviction

Concealment of pregnancy: a woman who is pregnant by another but misrepresents her condition, gives the husband a good ground for avoiding the marriage

But when husband knew she was pregnant, the marriage cannot be annulled

Where a child was born less than three months after the celebration of marriage, the SC refused to annul the marriage, for the reason that the woman was at an advance stage of pregnancy at the time the marriage and such condition must have been patent to the husband

Where a man had sexual intercourse with his wife before the marriage ad she is pregnant at the time of marriage, although he may not be the author of the pregnancy, the marriage will not be annulledDeceit as to paternity: when woman pregnant and makes a man believe he is the fatherallowing annulment (before not allowed since he should have investigated and proven the fact that he is the father)Chastity of wife: mere inconsistence in a woman prior to marriage, not resulting in pregnancy does not necessarily prevent her from being a faithful wife Marriage cannot be annulled simply on the ground that the wife concealed the fact that she had been lewd and corrupt and had an illegitimate child born prior to the marriageNO intent to consummate: sexual intercourse is a marital obligation not only a right Annulment should be granted in case where the party to the marriage determines that he or she will not engage in sexual intercourse after the marriage without disclosing the determination to another and carries it out

However, in our law this is not a ground for annulmentnot enumerated in the present article

Concealment of diseases: sexually transmissible disease Disease need not be serious or incurable

Concealed regardless of natureconstitutes an element of fraud in obtaining consent of the other party If the disease fall sunder Art 45 it cannot be ratified by continued cohabitation

If it falls under this art par 3- it can be ratified if the party after knowing about the disease continues to cohabit with the party

Effect of Cure: the recovery or rehabilitation will not bar the action for annulment, the defect is not the disease but the fraud which vitiated the consent of the other party (alcoholism, drug addiction)Art 47: who can file for action for annulment?Principle of estoppels in annulment: if sane person knows about the insanity of the other; when one knows about the incurable impotence of the other party, when the other party knows about the STD of the other (during time of marriage) cannot be annulled Ratification and prescription: RATIFICATION: cures defect existing at the time of the marriage nad validates the marriage while PRESCRIPTION bars the remedy because of the lapse of the period provided by law for bringing the action to annulAfter a voidable marriage has been ratified, it can no longer be set aside even if the prescriptive period has not yet expired

ART 48: solicitor or fiscals role in annulment cases

To prevent collusion between parties To emphasize that marriage is more than mere contract; it is a social institution in which the state is actually interested, so that its continuation or interruption can not be made to depend upon the parties themselves

Effect of collusion: every collusion to attain a decree of annulment or legal separation is void and of no effectthis would be against public policyArt 49: support of spouse and custody of children during pendency of caseparamount consideration to the welfare and choice of parent of children and provide appropriate visitation rights to parentsWritten agreement between spouses: given opportunity to put into written agreement for their support and custody of childrenIf the court finds that agreement are insufficient the court will provide necessary supplement

When child is over 7 years oldits choice of the parent with whom he will stay is given due consideration and ordinarily followed by the court unless the parent chosen by the child is unfit to have custody

Art 50-51: effects on property relations and children

Art 52: judgments (marriage, propertyrecorded in the civil registry)

Art 53: remarriage only after accomplishment of requirements on preceding artArt 54: legitimate childrenborn before annulment of marriage; children born in subsequent marriagelegitimateUniformity of judgment: effects of void ab ignitio marriages and voidable marriages or termination of subsequent marriage after reappearance of absent spouse:a) There will be liquidation, partition and distribution of the properties of the spouses

LIQUIDATION: inventory of properties and payment of obligations of the spouses and of the marriage

PARTITION: process in which the remaining properties will be divided into the various portions to be allocated to all the partiesclassified into capital of the spouses and the net profits in the marriage

Net profitsin the absolute community is the increase in the value of the properties of the spouses from the celebration of the marriage to the time of its termination; while the net profits in conjugal partnerships of gains are all the fruits of the separate properties of the spouses and the products of their labor and industryDISTRIBUTION: delivery to the spouses and the children, in the proper cases, of the shares or properties allocated to them respectively in the partitionb) Determining the share of each spouse in the properties of the marriagein consideration of good faith of spouse to the spouse in bad faith

c) Children conceived or born before the judgment becomes final are considered legitimate; custody and support; legitime of children (as if inheriting from parent who died1/2 of the estate of the parentadvances on their inheritance) d) Innocent spouse may revoke ethe designation of the spouse in bad faith as beneficiary in the formers life insurance policy

e) Spouse in bad faith shall be disqualified to inherit from the innocent spouse even under will or testament

f) The conjugal dwelling and the lot in which it is built will be given to the spouse with whom the common children choose to remain, unless the parties agree otherwise

g) If both acted in bad faithall donations by reason of marriage from one to another and all testamentary provisions made b one in favor of the other are revoked by operation of law

h) Judgment, the partition and distribution of the properties of spouses and the delivery of childrens presumptive legumes shall be recorded in the appropriate civil registry

i) After all the foregoing, the former spouses are free to marry again, otherwise subsequent marriage shall be null and void

Effect of bad faith: his or her in the net profits of the absolute community or conjugal property shall be forfeited to the common children of the guilty spouse or the innocent spouse in that order; common shildren not limited in their presumptive legitime from him or her

Liability for damages: basis of the liability will be the commission of an unlawful act or bad faith (art 20 and 21 of CC can serve as basis for an action for damages)

Where a third party is responsible for the fact which invalidates the marriage, it is submitted that such third person would be liable for damages to the injured party or parties