CHARACTERISTICS, FEATURES AND CONSEQUENCES OF VOID

MARRIAGES

A. As to Rights and Obligations of the Spouses

1. After declaration of nullity of void marriage, the spouses are

no longer required to live together, to observe mutual love, respect
and fidelity, and to render mutual help and support.

2. As to the custody of the children

a. Before the issuance of the Decree of Nullity of Marriage

The written agreement of the parties shall govern. In the

absence of which, the court shall provide for the custody of the
common children. The Court shall give paramount consideration to
the moral and material welfare of the said children and their choice
of the parent with whom they wish to remain. It shall also provide
for appropriate visitation rights of the other parent. 1

b. After the issuance of the Decree of Nullity of Marriage

General Rule:
As to the custody of common children, in case of separation of
the parents, parental authority (which includes custody) shall be
exercised by the parents designated by the Court. The Court shall
take into account all relevant considerations, especially the choice
of the child over seven years of age, unless the parent chosen is
unfit.2

1
Article 49 of the Family Code.
2
Article 213 of the Family Code.

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Exceptions:
a. No child under seven years of age shall be separated from
the mother unless the court finds compelling reasons to order
otherwise.3

b. In case of illegitimate children, the custody shall belong to

the mother.4

3. As to those Marriage which are void By Reason of

Psychological Incapacity

The non-performance of the rights and obligations of

spouses under the Family Code is included in the guidelines
that Courts must consider in rendering a marriage void by
reason of psychological incapacity of one of the parties.

In Republic v. Molina,5 it is specifically provided that “(6)

the essential marital obligations must be those embraced by
Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the
decision.”

B. As to Property Relations

1. The following shall be governed by Article 43, paragraphs 2,

3
Supra at 2.
4
Article 176 of the Family Code.
5
G.R. No. 108763 February 13, 1997.

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 3, 4 and 5,6 and Article 447 of the Family Code:

a. Those declare void due to non-conformity on the

requisites of valid bigamous marriage under Article 41;

b. Those subsequent marriage which are void due to non-

conformity with the provisions of Article 40 on the acquisition
of a judgment rendering the previous marriage void. 8

2. Those governed by Article 147 of the Family Code: 9

a. Those marriage which are declared void because the

solemnizing officer is unauthorized to perform marriages. 10
b. Those solemnized without a license11
c. Those contracted through mistake of one contracting
party as to the identity of the other12
d. Those subsequent marriages that are void under
Article 53.13
e. Those declared void by reason of psychological
incapacity.14

As such, Section 19(1) of A.M. No. 02-11-10-SC, which

requires the liquidation, partition and distribution of properties
6
Article 43 of the Family Code
(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
7
Article 44 of the family Code
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. 
8
Article 50 of the Family Code.
9
Article 147 of the Family Code:
“When a man and a woman who are capacitated to marry each other, live exclusively with each
other as husband and wife without the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the property acquired by both of them through their
work or industry shall be governed by the rules on co-ownership.”
10
Article 35 (2) of the Family Code
11
Article 35 (3) of the Family Code
12
Article 35 (5)
13
Article 35 (6) of the Family Code.
14
Article 36 of the Family Code.

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prior to the issuance of decree of nullity of the marriage applies only
to a void marriage under Article 40 of the Family Code when said
rule mentions of “decree of absolute nullity” and not to a marriage
declared void by reason of psychological incapacity under Article 36
of the Family Code. 15

In the latter case, since the applicable property regime is that

provided in Article 147 of the Family Code, the declaration of nullity
can already be made even without waiting for the liquidation of the
properties of the parties because it is not necessary to liquidate the
properties of the spouses in the same proceeding for declaration of
nullity of marriage. In Article 147, what governs the liquidation of
properties owned in common are the rules on co-ownership. In
Article 40, however, since the property relations of the parties is
governed by absolute community of property or conjugal
partnership of gains, there is a need to liquidate, partition and
distribute the properties before a decree of absolute nullity could be
issued.16

3. Those Governed by Article 148 of the Family Code: 17

a. Those contracted by ant party below 18 years of age 18

b. Those bigamous or polygamous marriages not falling under

Article 41.19

The term “capacitated” in the provision (in the first paragraph

of the law) refers to the legal capacity of a party to contract
marriage, i.e., any “male or female of the age of eighteen years or
upwards not under any of the impediments mentioned in Articles
37 and 38” of the Code;944 Note that while Article 147 also applies
to union without marriages, or those merely cohabiting as husband
and wife without the benefit of marriage, it is necessary that they
must be capacitated to marry each other and that they are living
“exclusively” as husband and .wife. As such, Article 147 does not
apply to cases of multiple alliances, even if in relation to each union
the parties are capacitated to marry each other. In the same way,
even if it is a case of exclusive cohabitation but if the parties are not
capacitated to marry each other, Article 147 does not apply. In both
situations, the property regime of the parties shall be that which is
provided in Article 148 of the Family Code. 20

c. Incestuous Marriages under Article 37 of the Family Code.

15
Dino v. Dino, G.R. No. 178044, January 19, 2011.
16
Supra at 15.
17
Article 148 of the Family Code:
“ In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of
the parties through their actual joint contribution of money, property, or industry shall be owned by them
in common in proportion to their respective contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal. The same rule and presumption shall
apply to joint deposits of money and evidences of credit.”
18
Article 35 (1) of the Family Code
19
Article 35 (4) of the Family Code.
20
Civil Law Reviewer by Atty. Elmer Rabuya, 2017 ed., p. 184.

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 d. Void marriages by reason of Public Policy under Article 38
of the Family Code.

Article 148 does not apply to a cohabitation of parties coming

from same sex, or to a same-sex marriage. Note that Article 148
refers to cohabitations between a man and a woman. With respect
to the property relations of same-sex cohabitations, the same shall
be governed by the applicable provisions of the Civil Code on
Property.21

C. As to the status of children

General Rule:
Children born out of a void marriage are considered
illegitimate as they are deemed to be born out of wedlock. 22

Exceptions:
a. Those conceived or born out of a marriage which is declared
void due to psychological incapacity; and

b. Those conceived or born out of a marriage which is declared

void because of non-recording of certain matters mentioned under
Article 52.23

D. As to the Scope of Support

1. As to Support Pendente Lite

a. The written agreement between the spouses shall govern, in
the absence of which, the COURT shall provide for support of the
spouses and the support of common children. 24

b. During the proceedings of declaration of nullity of marriage,

the spouses and their children shall be supported from the

21
Supra at 20, page 189.
22
Article 165 of the Family Code.
“Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this
Code.”
23
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.
24
Article 49 of the Family Code.

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properties of the absolute community or the conjugal partnership. 25

2. After the Issuance of the Decree of Nullity of Marriage

a. As to the spouses, the obligation of mutual support
between the ex-spouses ceases.26

b. As to the children, and to the legitimate or illegitimate

children of the latter, the parents are still obliged to give them
support as their filiation were not severed. 27

E. As to the Obligation to Cohabit after the Issuance of the

Decree
There is no obligation to cohabit after the issuance of the
decree since the marriage is already dissolved.

F. As to the applicability of Article 15128 after the issuance of

the decree

1. As Between the Ex-Spouses

Article 151 will not apply since they are not related anymore
between each other after the issuance of the Decree of Nullity

2.As Between the Parents and the Children

Article 151 will apply since they are still related with each
other.29

G. As to the Constitution of the Family Home

25
Article 198 of the Family Code.
26
Article 198 of the Family Code.
27
Article 195 of the Family Code:
Subject to the provisions of the succeeding articles, the following are obliged to support
each other to the whole extent set forth in the preceding article:
(c)Parents and their illegitimate children and the legitimate and illegitimate children of
the latter;
28
Article 151 of the Family Code
No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise have been
made, but that the same have failed. If it is shown that no such efforts were in fact made, the
same case must be dismissed.
29
Article 50 of the Family Code
Family relations include those:
(2) Between parents and children

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 The ex-spouses cannot constitute a family home. But they
each constitute their own and separate family homes if they are the
unmarried head of their respective families. 30

H. As to the Parental Authority.

1. As to the Illegitimate Children

The parental authority, which includes their custody, shall
belong to the mother.31
An illegitimate child is under the sole parental authority of the
mother, who is entitled to keep the child in her company.
Recognition of the child by the father could be a ground for ordering
him to give support to, but not to the custody of the child. However,
he is entitled to visitorial rights over the child 32

2. As to Legitimate Children born under paragraph (6)

The parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all
relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.33

I. As to Use of Surnames

1. As to Legitimate Children
They have a right to bear the surnames of their mother and
father in conformity with the provisions of the Civil Code on
Surnames.34

2. As to Illegitimate Children
General Rule:
They shall use the surname of their mother.

30
Article 152 of the Family Code.
31
Article 176 of the Family Code.
32
Briones v. Miguel, G.R. No. 156343, October 18, 2004.
33
Article 213 of the Family Code.
34
Article 174 of the Family Code.

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 Exception:
lllegitimate children may use the surname of their father:
a. If their filiation has been expressly recognized by the
father through the record of birth appearing in the civil register
b. When an admission in a public document or private
handwritten instrument is made by the father.
The father has the right to institute an action before the
35
regular courts to prove non-filiation during his lifetime.
3.As to the Wife
The wife shall revert back in using her maiden name since it
after the issuance of a decree of nullity, the spouses are deemed to
be not married from the beginning in the eyes of the law.
J . As to Retroactivity

General Rule:
The declaration of nullity of the marriage shall retroact at the
time of the celebration of the marriage. 36

Exceptions:

a. If the first marriage is declared void, even if the first

marriage is void but no judicial declaration of its nullity is obtained
prior to contracting a subsequent marriage, the subsequent
marriage is voidand there is liability for the crime of bigamy 37

b. If the second marriage is declared void, the subsequent

judicial declaration of nullity of marriage does not retroact to the
date of the celebration of the marriage insofar as Philippine penal
law on bigamy is concerned, hence, there is still liability for the
crime of bigamy.38

K. As to the Donation Propter Nuptias:

General Rule:
After the Declaration of Nullity of Marriage, Donations by
reason of marriage shall remain valid.

Exceptions:
a. If the applicable rule on dissolution of property regime is
Article 43, then the donations made to the donee who acted in bad
faith shall be revoked by operation of law.
35
Article 178 of the Family Code.
36
Tenebro v. Court of Appeals G.R. No. 150758, February 18, 2004.
37
Mercado v. Tan, G.R. No. 137110, August 1, 2000.
38
Tenebro v. Court of Appeals, G.R. No. 150758, Febuary 18, 2004.

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 b. If the applicable rule on dissolution of property regime is
Article 43, and when both spouses acted in bad faith, all donations
by reason of marriage shall be revoked by operation of law. 39

c. If the donor so desires.40

d. If the donation propter nuptias is included in the marriage

settlement.41

L. As to the effects on the Designation as a Beneficiary in an

Insurance Policy

General Rule:
If the designation is irrevocable, the same is still irrevocable
even if the marriage of the spouses are void. 42

Exceptions:

a. Void Marriages under Article 40

b. Void Marriages under Article 41

The above-mentioned provisions are governed by Article 43 of

the Family Code.43

M. As to the Effect on Right to Inherit

1. Intestate succession:

a. As to the spouses, since the parties are no longer spouses,

they cannot inherit from each other by way of intestate succession.

b. As to the children, the illegitimate children will receive a

legitime equivalent to ½ of the legitime of which a legitimate child is
entitled.44

2. Testamentary succession:

a. As to Spouses

General Rule:

Any testamentary provision by one in favor of the other shall

39
Article 44, Family Code
40
Article 86 (1) of the Family Code:
“A donation by reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made
in the marriage settlements, which shall be governed by Article 81 .”
41
Article 81 of the Family Code
42
Insurance Code of the Philippines, Section 11.
43
Article 50 of the Family Code and Article 43 of the Family Code.
44
Article 178 of the Family Code.

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remain valid.

Exceptions:

i. If the subsequent marriage is judicially declared void by

reason of violation Article 40, the spouse who acted in bad faith is
prohibited from inheriting to the innocent spouse by testate
succession.45

ii. If the subsequent marriage is judicially declared void by

reason of violation of Article 41 of the Family Code, the spouse who
acted in bad faith is prohibited from inheriting to the innocent
46
spouse by testate succession.

iii. In the preceding articles, when both spouses acted in bad

faith, the testamentary provision of one in favor of the other are
revoked by operation of law.47

b. As to the Children

The children may still be designated as voluntary heirs since

there is no prohibition under the law for such.
N. As to Other Matters Which Will Happen After the
Issuance of the Decree of Nullity of Marriage

1. The judgment of annulment or 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. 48

2. Children born under paragraphs (1), (2), (3) and (5) shall be

45
Article 50 in relation to Article 43 of the Family Code.
46
Article 43 of the Family Code.
47
Article 44 of the Family Code.
48
Article 52 of the Family Code

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illegitimate.49 The parental authority, which includes their custody,
shall belong to the mother.50

3. Children born under paragraph 6 are legitimate. The

parental authority shall be exercised by the parent designated by
the Court. The Court shall take into account all relevant
considerations, especially the choice of the child over seven years of
age, unless the parent chosen is unfit.51

4. Everything stipulated in the marriage settlement shall be

void. However those stipulations which do not depend upon the
celebration of the marriage shall be valid. 52

49
Article 165 of the Family Code.
50
Article 176 of the Family Code.
51
Article 213 of the Family Code.
52
Supra at 40.

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