There are many reasons marriages may be considered void or voidable and one of which is when the husband or wife is not aware of the marriage that has taken place. For instance, a husband had a secret affair with another woman while married and the woman decides to marry the man by forging his signature. No ceremony has taken place though it has been proven that two marriages have been registered. Can the husband still take some necessary actions to nullify marriage? What are the grounds for nullifying marriage? 

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.

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)

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. 

Have you ever wondered if long separation is a valid reason for nullity of marriage? For instance, the husband left his family to work abroad, but after a few years, decided to stop communicating with his spouse. There is no communication and by no communication means that the spouse does not know where the husband resides. The line of communication became non-existent. Will this be a reason for remarrying someone? There is a common misconception that once a husband is separated from a spouse, it becomes a reason for one to automatically remarry. While not communicating with the spouse for so many years may seem like another case of abandonment, remarrying someone is not that simple. For an individual to remarry, petition for annulment must be filed.

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.


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)

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 227 and 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, 1998]).

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)

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n)

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

    (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

    (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. (n)


Art. 44. 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. (n)

Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:

    (1) That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

    (2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

    (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

    (4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;

    (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

    (6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)


Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

    (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

    (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

    (3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

    (4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage."

When a man is liable for a crime of rape, forgiveness can be obtained through marriage. This can be found in Article 266 of the Anti-Rape Law of 1997 or the Republic Act No. 8353. Now, if your head is in the clouds, let us first take a good look at what the Anti-Rape Law of 1997 is all about. 

Chapter 3, Article 266-A defines when and how a crime of rape is committed. 

1. By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a. Through force, threat, or intimidation;

b. When the offended party is deprived of reason or otherwise unconscious;

c. By means of fraudulent machination or grave abuse of authority; and

d. When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 

Pardon or forgiveness can be given to the offender once marriage takes place. Under Article 266-C, Effect of Pardon, in case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the offended party shall extinguish the criminal action or the penalty: Provided, that the crime shall not be extinguished or the penalty shall not be abated if the marriage is void ab initio.

With this law, it is a case of forgive and forget. Unfortunately, forgiveness can be elusive especially when the criminal act has left a very deep wound, that scars become a reminder of such an unpleasant experience. As they say, it is easier said than done. 

Rape becomes a violent crime not only because of the force applied but also due to the fact that sexual act is committed against the will of the offended party. The problem with this law is that it sets aside other issues associated with rape. One important point is missing and the fact that a vast range of abuses such as physical, psychological and sexual can take place over a period of time while the offender and the offended party are living under one roof makes the law more open to question. 

Women who are victims of rape become held prisoner of repeated abuse and violence. Marriage only makes the situation worse for women by allowing them to be trapped in such a vicious cycle. Rape victims are traumatized and have difficulty coping. Filing criminal charges against their offenders is difficult let alone marrying the offender.  Sadly, myths about rape have not yet been completely debunked. 

The absence of divorce in the Philippines no longer comes as a surprise and for married couples who have already lost the spark of romance that used to ignite their way, this is bad news. Imagine the ordeal you have to go through just to file for petition for marriage annulment. Aside from the emotional difficulties you experience, the process is undoubtedly costly. 

The State mandates that “ marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” The statement can be found in Section 2, Article XV of the 1987 Constitution of the Republic of the Philippines. 

In Section 3 of the 1987 Constitution of the Republic of the Philippines, the State shall defend:

1. The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions, which are considered preducial to their development;

2. The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;

3. The right of the family to a family living wage and income; and 

4. The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. 

In addition, the high court also requires inferior courts for a fiscal or an agent to appear from the Solicitor General’s office, representing himself as a counsel during hearings for annulment. The representative must also write whether annulment is approved or not.

To put it simply, the State will be the third party in any marriage. Everything must be done to save one’s marriage and annulment will be the couple’s last resort. Considering the tight bond of Filipino families, this law is indeed a clear indicator of how lawmakers put great importance to marriage. This is a challenge for married couples who have already decided to go on separate ways due to individual differences and other conflicts that cannot be settled through marriage counseling or other similar means. 

The family law in the Philippines has significantly changed over the years. While marriage's definition was used to be a simple union between a man and a woman, it is considered a special contract at present. A contract that prevents either parties from changing partners at the same rate they change their clothes. Revisions and additions on the family code are inevitable especially in this modern day and age when same sex marriage has also stirred a web of controversy. Perhaps, the family law in the country has once lain dormant and only awakened by the prevalence of domestic abuse, infidelity, etc. The video provides an overview of the recent changes and trends in family law. The changes benefit both traditional and modern families. They provide more options to couples who wish to seek legal assistance or advice. Are you also aware of the changes and trends in family law? How do you feel about them? Let us know your thoughts.

When filing a petition for annulment, several grounds will be looked into in order to find out whether or not such grounds carry weight that will strengthen the case. Infidelity is one of the most common reasons for filing a case, but it is not considered a ground for annulment. Infidelity can only be an acceptable basis for legal separation or filing a case for concubinage or adultery. In fact, infidelity cannot be used as a sole deciding factor in granting custody over a child. 

Under Revised Penal Code, Article 333, adultery refers to an extra marital relationship of a woman to a man other than her husband even if the man is well aware that the she is already married. A crime of adultery is committed for each sexual intercourse that takes place.

Under Article 334 of the Revised Penal Code or RPC, concubinage refers to the cohabitation of a married man with a mistress in the same or conjugal dwelling or an involvement of a married man with a woman who is not his wife in any other place. The sexual intercourse of the married man to the concubine took place under scandalous circumstance. 

Adultery VS Concubinage 

• Adultery is committed by a wife and should be charged together with the other man, while concubinage is committed by a husband and should be charged together with the other woman or concubine. 

• In adultery, a proof of sexual intercourse will suffice to file a case. On the other hand, concubinage cannot be pursued without proving that the sexual intercourse happened under scandalous circumstances. The case can be passed off as concubinage if cohabitation happens in the conjugal dwelling or in any other place. 

• Concubinage has lower penalty than adultery and the concubine’s penalty is only destierro, which refers to banishment or prohibition from residing within the accused party’s actual residence. The distance should be within the radius of 25 kilometers and banishment will be given for a specified length of time. In adultery the penalty for the man is the same as that of the guilty wife. 

The spouse who has been offended is the only person entitled for filing the action for concubinage or adultery provided, the marital status is present at the time the case was filed. The parties that will be prosecuted, if found guilty should be the offending spouse and the paramour, if both are still alive. 

If the offended spouse has pardoned the offenders, the case cannot be pursued and the criminal charge cannot prosper. Pardon can be implied or express. Express pardon is done in writing and serves as an affidavit that the offenders are pardoned for their act. The implied pardon is when the offended party chooses to live with his or her spouse, even after the offense’s commission. Pardon should be obtained or given before the criminal action’s institution.

In a country where divorce has not yet been legalized the next available option for couples who have reached the end of the line is marriage annulment. Before anyone can declare nullity of marriage, it is important that you have clearly understood what an annulment is. 

Common questions on annulment of marriage answered: 

1. What is an annulment? 

In a nutshell, the term is referred to by non-lawyers as cases undergoing annulment proceedings. On a legal perspective, it refers to annulment cases that fall under a specific Family Code. On the other hand, annulment of marriage is a court process that nullifies marital union. Even if couples are no longer living together, marriage remains valid until the court provides declaration of nullity. Note that void marriage is entirely different from voidable marriage. One cannot file the petition for annulment if the marriage has been considered void or invalid. 

2. What are the grounds of marriage annulment?

• Lack of parental consent. 

• Insanity

• Fraud

• Consent gained by force or intimidation

• Physical incapacity

• Sexually Transmitted Disease

3. What are the factors that cannot be considered grounds for annulment? 

• Infidelity

• Separation 

4. How do you get started with the annulment process? 

You will need to get an attorney for the process and be asked to write your marital history. You need to provide detailed information including the date you met your spouse. The description needs to be vivid and should also include the personality of your spouse as this is part of the case assessment. You will have to undergo psychological evaluation process to ensure that you have a sound mind when the petition was filed.  After the psychological evaluation, drafting and filing of petition will follow. You need to sign the petition before it is sent to the Regional Trial Court.  

Your spouse will receive a notification, referred to as summons informing him that a petition was filed. The petition needs to be answered 15 days from receipt. Notices will be served through publication in case the spouse is not in the country. There will be a series of investigation before the trial stage commences.  

5. Who is entitled for child custody in case of an annulment? 

Joint custody will be awarded unless the children have not reached the age of seven. For children below seven years old, the custody will be given to the mother and the father is given visiting privileges.  

6. Does filing the petition guarantee a marriage annulment? 

There is no guarantee that annulment will be granted and even the lawyers are prohibited to guarantee the outcome of the cases. 

7. What is the average time frame for the proceedings to be completed? 

On average, a decision is made within a year because there are several factors that must be taken into account such as the availability of the judge, court personnel, prosecutor, petitioner and psychologist. The time frame may also vary from place to place. 

8. Can petition for annulment be filed without the spouse’s consent? 

The consent or signature of your spouse will not be required if you wish to file a petition for marriage annulment. In fact, parties should not come to an agreement about filing the annulment petition. Investigations will also be conducted to check if both parties had a mutual agreement of filing the petition or have been fabricating evidence.