from the very start no marriage was celebrated even if there was a marriage ceremony performed.
Annulment- marriage is voidable, valid until annulled. L.S- marriage is valid at the time it was celebrated.
In remedial law who is the real party in interest. Secure a copy of A.M. 02-11-10, tells us about new rules in filing a petition for declaration of nullity, annulment and L.S.
In the case of Ninal for purposes of resolving the issue regarding succession or inheritance, the heirs of any of the spouses can file a petition for declaration of nullity of marriage. But by virtue the said rule A.M. a petition for declaration of nullity of void marriage may be filed solely by the husband or the wife.
Enrico vs. Heirs of Cely
SC categorically abandoned the ruling in Ninal. The heirs do not have the right to file a petition for nullity even for purposes of setting the issue on inheritance. Only the husband or the wife can be considered real party in interest
Q: Why did I say injured party no statutory reference?
A: Bec. There is no injured party when it comes to grounds for declaration of nullity. If you will recall in Art. 4, the absence of any essential/formal requisites will render the marriage null and void.
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Can you consider a party in bad faith, if 4th cousins fell in
love? or Can we say that the husband or the wife is in bad faith if there is lack of marriage license/lack of legal capacity/psychological incapacitated. That is the reason why when it comes to who is the real party in interest, we do not use the word injured party, if it is a petition for nullity. Under the rules, it is simply the husband or the wife. Nobody can be considered as an injured party in a petition for declaration of nullity.
Salmingo vs. Rudica
Dito nakialam ung pubic prosecutor, kasi dib a if you file a petition for declaration of nullity the state will always intervene because of the constitutional mandate that the state will protect the sanctity of marriage and in order to find out whether there is a collusion bet. The parties, the state representative who can be the public prosecutor or office of Sol. Gen. will appeal in court. In this case S.C said one who is not a real party in interest in a complaint for declaration of nullity cannot ask for the setting aside therein. His invocation of the states interest in protecting the sanctity of marriage does give him the standing to question the decision by law. It is the prosecuting atty. Or fiscal or Sol. Gen. who represents the interest of the state. But as I have said the role of the fiscal or Sol. Gen. is simply to find out whether or not there is a collusion bet. The parties when the petition was filed. Here a 3rd person
filed a petition for declaration of nullity and he is invoking for the interest of the state. SC said, no you are not a real party in interest.
Annulment
Q: Who can file the case?
A: Only the injured party/aggrieved party.
Q: Why is there such a thing as injured party in annulment?
A: One ground 4 annulment is fraud. In ROC, if you will go to court, you have to go there with a clean hands so if you are the one who committed fraud, you cannot file a petition for annulment. So only the injured party can file but there are exceptions:
1. Lack of parental consent- the parent where consent was not obtained can file a petition for annulment
2. Insanity- the relative can file a petition for annulment.
Legal Separation
Just like in annulment, if you will look at the grounds of L.S there is really an injured party. Ex. Repeated physical violence, so kung ikaw ang boksingero, hindi ikaw pwede mgdemanda, ung sinasktn ang pwede.
Prescriptive period
Nullity - the 10-year prescriptive period has been
repealed so forget about it, it imprescriptible, so even if
you were married before the effectivity of the FC, still you can file a petition, for the reason that it is void ab initio so why put prescriptive period.
Annulment - 5yrs. is the prescriptive period for filing a
petition. Memorize Art.7-when do you start counting the 5-yr period.
Ex. Fraud- upon the discovery and not frm the celebration of the marriage.
But take note of the exceptions considering there are 3rd
persons who can file, you need to connect that to the prescriptive period. So if it is the parent whose consent was not obtained, the parent can file before the child reaches the age of 21.
Q: What happen if the parent was not able to file the petition and the child is already 21 or above 21?
A: So you have to apply the 5-yr period but this time relate it to the spouse who did not obtain the consent of the parent so the spouse who got married upon reaching the age of 21 still given 5 years counted frm 21. Meaning to say until he/she reaches 26 yrs old.
After 26 or pg 27 na cya, if he/she did not file- the marriage was already rarified by cohabitation. Ratification is only applicable in a voidable marriage.
If insanity, any of the relatives of the insane may file. Before the death of either party or during lucid interval.
L.S - 5 years.
How to impugn? Can it be attacked directly or collaterally?
Void marriage- it can be attacked collaterally w/c means
that is not the main issue in the case file. It was simply brought out as a consequence in attacking the principal issue in the case.
Voidable marriage- cannot be attacked collaterally.
There shld be a separate action to annul.
L.S- it is not applicable bec. The marriage is valid. Grounds
Memorize the grounds. But the easiest way, 1st apply
Art.4, the absence of any of the essential/formal requisites. Then go to list of prohibited marriages.
Domingo vs. C.A
Prior judicial declaration of marriage shld not be simply construed as necessary only for the purposes of contracting a subsequent marriage. There is also need for judicial declaration of the first marriage for the purpose of setting the issue regarding inheritance etc. it is not only limited to contracting a subsequent marriage. Art.40 shld
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be extensive, it shld not only for the sole purpose of contracting subsequent marriage.
Molina Doctrine
SC said, it enumerates what are the elements that shld be present so that a petition for declaration of nullity on the ground of P.I. can be granted, the impt. Elements are:
1. Medically proven 2. Permanent and incurable
N.B. there are 8 in the list, but these 2 are most impt.
Ching Ming Choi
He wants to remain a virgin all thru his life. He does not like to have sex. In canon law, if marriage is not consummated it is a ground for annulment. But in this case it is tantamount to P.I. it was discovered that Ching Ming Choi is not He but She in a man’s body.
Marcos vs. Marcos
Not related by blood but bec. Of employment contract. If you read this case, these 2 people used to be member of the PSG they became unemployed. Nainis ung babae xe cya lng wrkng. Although in this case the SC denied the petition. What the SC emphasize here, a person can be considered P.I. even if he was not personally interviewed by a psychologist. Moreso khit ndi nainterview or naexmine the psychologist may give a recommendation or declaration that respondent is P.I. Basis?- the testimony of the relatives of the resp., who testified that since birth that has been the behavior of the resp. the psychologist will trace the family background.
Republic vs. Dagdag
Root cause must be medically identified.
Buenaventura case
Petitioner wants the person who was declared P.I. to pay damages. SC said no, it is not his fault to be P.I. at the same time there is possibility that the petitioner may be declared as P.I.
Paras vs. Paras
The disposition of a disbarment case cannot be conclusive on an action for declaration of nullity, because it was based on immorality, it is not a ground.
Take note of the gravity of P.I. 1. Gravity
2. Judicial antecedents 3. Incurability
Q: If you have been declared as P.I. do you still have the capacity to enter into a subsequent marriage?
A: 2 suggested answers:
1. There is such a thing as relative P.I. meaning to say, resp. might be P.I. to the 1st spouse but not on
the 2nd spouse.
2. Ma’am Lopez’s Opinion- take into consideration the requisites of P.I. accdg. To Molina case there
shld be an element of permanence and incurability.
Incest rules - memorize Art.37
The new rules of declaration of nullity of marriage under A.M 02-11-10 relaxed the requirement of expert opinion referring to a psychologist/psychiatrist. Sec.2 par.b - the petition need not allege expert opinion but simply complete facts of he physical manifestation indicative of said incapacity.
Memorize marriages against public policy. Bigamous Marriage
Q: Juan married, after disappearing for several years contracted a second marriage. Is the 2nd marriage valid?
A: As a general as that you may qualify, it’s because of the so called judicial declaration of presumptive death of the absent spouse. Disappearance is different from abandonment. What Arts. 40 & 41 contemplate is disappearance under circumstances beyond the control of men.
Example: Disappeared because of earthquake. If you want to marry again you have to file a petition for declaration of the presumptive death of the absent spouse. Which is different under the 1950 CC- absences for 7 consecutive years may be sufficient to give you the capacity to contract subsequent marriage, if you have a well-founded belief that your spouse is dead. Filipinos abuse that provision, that is why in the FC when if your spouse disappeared under circumstances beyond your control, you need to ask the court to declare your husband/wife dead.
Effect of declaration: this will give you the chance to contract a 2nd marriage.
Q: If you contracted a 2nd marriage, does it mean to say
that the 1st marriage is already terminated?
A: No, the 1st marriage accdg. To the FC is simply
suspended. In effect, the 2nd marriage although allowed by
law is bigamous but this is a case that even it is bigamous it is considered valid- why valid?- bec. Before the contracting the 2nd marriage there was a judicial
declaration of presumptive death of the absent spouse.
Q: What happens if absent spouse re-appeared?
A: It depends, if there is an execution of affidavit of reappearance filed before the LCR where the marriage contract is registered automatically, the 2nd marriage
according to FC is deemed terminated in w/c case, the suspension of the 1st marriage is deemed lifted.
Q: What happens to the children assuming they are children in the 2nd marriage?
A: The children will remain legitimate.
Under the Spanish CC, the moment there is a judicial declaration of presumptive death of the absent spouse,
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automatically, the 1st marriage is terminated, and the 2nd
marriage will remain to be valid.
Q: Assuming that the person who re-appeared have decided not to file ad affidavit of reappearance, will it give him the capacity to contract a subsequent marriage?
A: No, remedy-he should go to court and file a petition for the declaration of nullity of his first marriage.
Q: Aside from the absent spouse, who may file an affidavit of reappearance?
A: The present spouse, but the law does not make it mandatory the law says “may file”
Annulment of Marriage
Take note when it comes to fraud, you have to apply rule on statutory const. “expresio unios”- what is not include is deemed excluded.
Fraud
Ducat vs. Aquino
SC said, kpg 7 mnths na un babae kalokohan na un kng s2vhn may deceit pa. Why? If the woman is pregnant, it is only up to the 4th mnth wherein you cannot see that the
woman is pregnant or not. The moment that it is already in the 5th mnth, automatically bgla n lng lalaki ung tyan.
SC said in this case if 7 mnths n un babae, u cnt later on claim that there was fraud/deceit-non disclosure of pregnancy. But if the woman is 4 mnths pregy or below 4 mnths then that is when you can invoke fraud. What makes it fraud is not the pregnancy per se, it’s not the STD, it’s not the homosexuality, but the non-disclosure w/c makes it a ground for annulment.
Anaya case
Non-disclosure of pre-marital relationship does not constitute fraud.
So memorize the 4 circumstances constituting fraud.
Villanueva vs. CA
Lack of cohabitation per se is not a ground to annul a marriage. It only becomes when it arises as a result of the perpetration for any of the grounds for annulling marriage.
Luis vs.Atienza
A lawyer is involved in this case. The lawyer alleges that he was threatened by the father of the girl. The father said that if you will not marry my daughter, I will file a disbarment case. SC said that is not a kind of intimidation/force w/c can vitiate consent.
The kind of intimidation w/c can vitiate consent is something that there is really a threat on imminent danger to one’s life or property or life of one’s relative. If you
connect it to the justifying circumstance under the RPC- self-defense.
Macarubo vs. Atty. Macarubo
Macarubo got married. He filed a petition for annulment alleging that he was “napikot”, the court annulled. 2nd marriage- he claimed again “napikot ulit aq”
SC said it is unimaginable for a lawyer taking into consideration his profession. 1st time acceptable “shot gun
wedding” but 2nd time around “shot gun wedding ulit, SC
said 1 incident of a shot wedding is believable but in succession would tack one’s credibility especially accdg. to SC it s not easy to believe that a lawyer would be easily coward to enter into marriage.
Impotency
Male or female may be impotent. Impotency just like P.I. shld be permanent and incurable.
Jimenez vs. Rep
SC said to find out whether it is incurable the spouse can be physically examined even when there is an opposition. That would not be a violation of constitutional rights.
Sarao case
Considering that the operation of the wife was successful the impotency as a ground for annulment cannot be accepted.
Q: Pano mgiging impotent ang babae?
A: Depende sa opening ng vaginal canal. If the opening is too small and there if difficulty for penetration.
Q: Eh kng sa lalaki?
A: There is difficulty in ejaculation. It has something to do w/ the size of the penis.
STD
Before it was not a ground. Bqt? Xe dati d uso ang prosti… huh?
Grounds for L.S.
Make a code, impt. Un code ni ma’am alm nyo na n… hehehe
1. Repeated physical violence- it is not simple violence.. it has to be repeated.
2. Abandonment
Ong vs.Ong
The abandonment should be w/o justifiable reason for it to be a ground for L.S. in this case the wife left the conjugal dwelling because she was physically abused. It was the husband who filed a petition for L.S. on the ground of abandonment. SC said it cannot be abandonment, pnu k ndi i2wah eh inaabuso mu asawa mu. So for it to be a ground 4 legal separation it should be.
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- w/o justifiable reason
3. attempt of the respondent x x x tgnan sa codal… hehe
4. final judgment- connect it to ROC ok…un time frame kng kelan un period…na finl judgment n tlga.
5. Lesbianism/homosexuality, if there is no disclosure-fraud, if there is-groubd for LS.
Effects
Q: Declaration/annulment/LS, they say it is a package deal, why?
A: Because all of these should appear in the decision, it is not just a ruling that the petition is granted. Petition should embody what would be the effect in relation to the status of the child the custody, the prop. Relationship, donation propter nuptias, succession. Some family court they might have overlooked it so for practical purposes, when you become practitioners and you will be handling a case, I suggest you include it in your prayer.
Yu vs. Yu
SC citing Arts. 49 & 50 of the FC, the issue about the custody of the child is deemed impleaded in the petition for declaration of nullity, together w/ support, dissolution of property, presumptive legitime. So SC said lahat dapat nandon, kya lng nakakalimutan ng family court so para hindi makalimutan, ilgay nyo n sa prayer nyo kya nga package deal sya.
1. Marriage bond
Nullity - marriage is dissolved.
Annulment - it is proper to say the marriage bond is
dissolved, bec. It is voidable, valid until annulled.
L.S - marriage bond is not dissolved, it will remain to
be valid but there is simply a separation from bed & board.
2. Status of children
Children born before the declaration of nullity will remain to be legitimate.
So if after declaration gen, rule children are legitimate, except- if the ground is P.I. under Art. 36 or under Art.53 w/c refers to non-delivery of the presumptive legitime and the registration requirement before you contract a subsequent marriage, under these 2 cases if the children are born before the declaration of nullity and later n the marriage becomes null and void, they will remain to be legitimate.
Which means that if you are talking about the other grounds for example- lack of legal capacity, absence of marriage license, kng ung declaration of nullity ngawa lng after 50 yrs so after 50 yrs s2vhn mu sa anak mo illegitimate k pla. Because the decision in the declaration of nullity as a gen.rule will
retroact on the date of the celebration of the marriage except if the ground is 36 & 53.
Q: What is the status of the child if it is annulment?
A: They will remain to be legitimate if conceived or born. Remember when we were talking about legitimated children by subsequent marriage, the law requires conceived and born. Here conceived or born so either or. Before the decree..
Q: In LS what is the status of the child?
A: Legitimate because the marriage bond is not dissolved.
3. Property relationship
We discussed under Arts. 147 & 148 refer to co- ownership in relation to a common law relationship and void marriages. We now connect it here, what are void marriages falling under 147/148. As mentioned, if there is an element of bad faith and I can only think- for it fall under 147/148, the co-ownership under 148 wherein there is a need for a proof of actual contribution, if he marriage is declared null & void on the ground of bigamy. Because he is in bad faith but majority be governed by 147 because it’s not your fault, kea dib a here is no injured party in