ARTICLES 50-64

Continuation of Void and Voidable Marriage; Legal Separation

ARTICLE 50
The effects provided for in paragraphs (2), (3), (4) and (5) The same rule applies even if the first marriage is patently
of Article 43 and in Article 44 shall also apply in the void because the parties are not free to determine for
proper cases to marriages which are declared void ab initio themselves the validity or invalidity of their marriage. (Cariño
or annulled by final judgment under Articles 40 and 45. vs. Cariño, 351 SCRA 127, 138 [2001])

The final judgment in such cases shall provide for the However, for purposes other than remarriage, no judicial
liquidation, partition and distribution of the properties of action is necessary to declare a marriage an absolute nullity.
the spouses, the custody and support of the common (Cariño vs. Cariño, 351 SCRA 127, 138 [2001])
children, and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous Thus, under ordinary circumstances, the effect of a void
judicial proceedings. marriage, so far as concerns the conferring of legal rights upon
the parties, is as though no marriage had ever taken place.
All creditors of the spouses as well as of the absolute (Nñal vs. Bayadog, 328 SCRA 122, 135-136 [2000])
community or the conjugal partnership shall be notified of
the proceedings for liquidation. And therefore, being good for no legal purpose, its invalidity
can be maintained in any proceeding in which the fact of
In the partition, the conjugal dwelling and the lot on which marriage may be material, either direct or collateral, in any
it is situated, shall be adjudicated in accordance with the civil court between the parties at any time, whether before or
provisions of Articles 102 and 129. after the death of either or both the husband and the wife.
Note, however, that upon the death of either party to a void
ARTICLE 51 marriage prior to the entry of judgment, a direct action
In said partition, the value of the presumptive legitimes of assailing the validity of a void marriage may no longer prosper
all common children, computed as of the date of the final (see A.M. No. 02-11-10-SC).
judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual Retroactivity of Judicial Declaration
agreement judicially approved, had already provided for A marriage that is void ab initio is considered as having never
such matters. to have taken place. (Suntay vs. Cojuanco-Suntay, 300 SCRA
760 [1998])
The children or their guardian, or the trustee of their
property, may ask for the enforcement of the judgment. As such, the judicial declaration of the nullity of the marriage
retroacts to the date of the celebration of the marriage insofar
The delivery of the presumptive legitimes herein as the vinculum between the spouses is concerned. (Tenebro
prescribed shall in no way prejudice the ultimate vs. CA, 423 SCRA 272, 284 [2004])
successional rights of the children accruing upon the death
of either or both of the parents; but the value of the
properties already received under the decree of annulment Effect on the Status of Children
or absolute nullity shall be considered as advances on their All children conceived and born outside a valid marriage are
legitime. illegitimate, unless the law itself gives them legitimate status.
*** (Briones vs. Miguel, 440 SCRA 455)
Effects of Judicial Declaration of Nullity of Marriage
In General Hence, children born of void marriages are considered
Void marriages, like void contracts, are inexistent from the illegitimate except those born of void marriages under Articles
very beginning and no judicial decree is required to establish 36 and 53 of the Family Code, which are exceptionally
their nullity. considered legitimate.

Thus, the general rule is if the marriage is void ab initio, it is Article 54 of the Code provides these exceptions: “Children
ipso facto void without need of any judicial declaration of conceived or born before the judgment of annulment or
nullity. It is only by way of exception that the Family Code absolute nullity of the marriage under Article 36 has become
requires a judicial declaration of nullity of the previous final and executory shall be considered legitimate. Children
marriage before a subsequent marriage is contracted. conceived or born of the subsequent marriage under Article 53
shall likewise be legitimate.” (Briones vs. Miguel, 440 SCRA
A prior and separate declaration of nullity of a marriage is an 455)
all-important condition precedent only for purposes of
remarriage. (Cariño vs. Cariño, 351 SCRA 127, 138 [2001]) Effect on Property Relations
One of the effects of the declaration of nullity of marriage is
That is, if a party who is previously married wishes to contract the separation of the property of the spouses according to the
a second marriage, he or she has to obtain first a judicial applicable property regime.641 In a void marriage, regardless
decree declaring the first marriage void, before he or she could of the cause thereof, the property relations of the parties
contract said second marriage, otherwise the second marriage during the period of cohabitation is governed by the provisions
would be void. (Domingo v. CA, 226 SCRA 572 [1993]) of Article 147 or 148, such as the case may be, of the Family

PERSONS: FAMILY CODE 1|M O J I C A

ARTICLES 50-64
Continuation of Void and Voidable Marriage; Legal Separation
Code. (Valdes vs. RTC, Br. 102, QC, 260 SCRA 221, 226
[1996]) The rule will still be the same even if the beneficiary and the
insured are spouses and their marriage is later judicially
Article 147 applies to unions of parties who are legally declared void. By way of exception to the rule, if the marriage
capacitated and not barred by any impediment to contract is declared void under Article 40, the provisions of Article
marriage, but whose marriage is nonetheless void for other 43(3) apply.
reasons, like the absence of a marriage license. (Cariño vs.
Cariño, 351 SCRA 127, 138 [2001]) Effect on Right to Inherit
If the marriage is judicially declared void, it is as if no
Article 148, on the other hand, refers to the property regime of marriage had taken place. As such, the parties thereto are not
bigamous marriages, adulterous relationships, relationships in to be considered as legal heir of each other, except if they are
a state of concubine, relationships where both man and woman collateral blood relatives within the fifth civil degree.
are married to other persons, multiple alliances of the same Ordinarily, therefore, such former spouses may not inherit
married man. (Cariño vs. Cariño, 351 SCRA 127, 138 [2001]) from each other by way of intestate succession. There is
nothing, however, that will prevent them from providing for
In the liquidation and partition of the property owned in testamentary provisions in their respective wills in favor of
common by the spouses in a void marriage, the provisions on each other.
co-ownership under the Civil Code ordinarily applies, not
Articles 50, 51 and 52, in relation to Articles 102 and 129, of Effect on Parental Authority and Custody of Common
the Family Code. (Valdes vs. RTC, Br. 102, QC, 260 SCRA Children
221, 226 [1996]) Since children of void marriages are generally illegitimate,
they shall be under the parental authority and custody of their
The rules set up to govern the liquidation of either the absolute mother. This is the rule regardless of whether the father admits
community or the conjugal partnership of gains, the property paternity.
regimes recognized for valid and voidable marriages (in the
latter until the contract is annulled), are irrelevant to the ARTICLE 52
liquidation of the co-ownership that exists between the The judgment of annulment or of absolute nullity of the
spouses in a void marriage. (Valdes vs. RTC, Br. 102, QC, marriage, the partition and distribution of the properties
260 SCRA 221, 226 [1996]) of the spouses, and the delivery of the children’s
presumptive legitimes shall be recorded in the appropriate
Effect on Donations Propter Nuptias civil registry and registries of property; otherwise, the
If the marriage is judicially declared void ab initio, the donor same shall not affect third persons.
may revoke the donation propter nuptias.653 However, if the
donation was made in the marriage settlement, the same shall ARTICLE 53
be void if the marriage is later judicially declared void ab Either of the former spouses may marry again after
initio. complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage
The rule is different, however, if the marriage is judicially shall be null and void.
declared void under Article 40, i.e., the declaration of nullity
of a subsequent marriage contracted by a spouse of a prior ARTICLE 54
void marriage before the latter is judicially declared void. In Children conceived or born before the judgment of
the latter case, the provisions of paragraph (3) of Article 43 annulment or absolute nullity of the marriage under
apply. Article 36 has become final and executory shall be
considered legitimate. Children conceived or born of the
As such, donations propter nuptias in a void marriage under subsequent marriage under Article 53 shall likewise be
Article 40 shall remain valid, except that if the done legitimate.
contracted the marriage in bad faith, such donations made to ***
said donee are revoked by operation of law. Requirement of Registration
A decree of declaration of absolute nullity or annulment of
The rule is also different if the marriage is void pursuant to marriage shall not be issued unless the following requirements
Article 44 of the Family Code, i.e., where both parties to a are complied with:
subsequent marriage in Article 41 of the Family Code acted in 1. Registration of the entry of judgment granting the petition
bad faith. If both spouses of such subsequent marriage acted in for declaration of nullity or annulment of marriage in the
bad faith, all donations propter nuptias are revoked by civil registry of the place where the Family Court is
operation of law. located;
2. Registration of the approved partition and distribution of
Effect on designation as irrevocable beneficiary in the properties of the spouses, in the proper Register of
insurance policy Deeds where the real properties are located; and
Under the Insurance Code, if the designation of the beneficiary 3. The delivery of the children’s presumptive legitimes in
in the insurance policy is irrevocable, the insured has no right cash, property, or sound securities.
to change the beneficiary he designated in the policy.

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ARTICLES 50-64
Continuation of Void and Voidable Marriage; Legal Separation
If the foregoing requirements are not complied with, the For purposes of this Article, the term “child” shall include
subsequent marriage contracted by the parties to the previous a child by nature or by adoption.
marriage shall be null and void and the partition and ***
distribution of the properties of the spouses shall not affect Concept
third persons. Legal separation is a legal remedy available to parties in a
valid but failed marriage for the purpose of obtaining a decree
Issuance of Decree from court entitling him or her to certain reliefs such as the
After the foregoing requirements are complied, the prevailing right to live separately from each other (without affecting the
party shall be entitled to the issuance of a Decree of marital bond that exists between them), the dissolution and
declaration of absolute nullity or annulment of marriage, as the liquidation of their absolute community or conjugal
case may be. He or she is required, however, to cause the partnership property regime and the custody of their minor
registration of the Decree in the civil registry of the place children. However, this remedy may be availed of only if there
where the marriage was registered, the civil registry of the is a ground for doing so, which grounds are enumerated under
place where the Family Court is situated, and in the National Article 55 of the Family Code. Based on these grounds, the
Census and Statistics Office (NCSO). The registered Decree law allows spouses who have obtained a decree of legal
shall be the best evidence to prove the declaration of absolute separation to live separately from each other, but in such a
nullity or annulment of marriage case the marriage bonds are not severed. Elsewise stated, legal
separation does not dissolve the marriage tie, much less
Status of Children authorize the parties to remarry.
As previously stated, since a voidable marriage is considered
valid prior to the judgment of annulment, children conceived Distinguished from annulment and absolute divorce
or born before the judgment of annulment has become final Legal separation is to be distinguished from annulment and
and executory are considered legitimate. absolute divorce in that in the former, the marriage bond is not
severed; whereas, in annulment and absolute divorce, the
Children born of void marriages are considered illegitimate marriage bond is severed or terminated, thus allowing the
except those born of void marriages under Articles 36 and 53 parties thereto to remarry. The cause giving rise to legal
of the Family Code, which are exceptionally considered separation must necessarily exist only after the celebration of
legitimate. Thus, if the marriage is judicially declared an the marriage.1 This is likewise true in the case of absolute
absolute nullity, the Family Court shall order the local civil divorce. In annulment, however, the grounds thereof must
registrar to issue an amended birth certificate indicating the necessarily exist at the time of the marriage.
new civil status of the children affected, except in the case of
children under Articles 36 and 53 of the Family Code. Philippine laws do not provide for absolute divorce although it
recognizes as valid the divorce obtained by an alien spouse
ARTICLE 55 who is married to a citizen of the Philippines, even in so far as
A petition for legal separation may be filed on any of the the latter is concerned. What Philippine laws provide are
following grounds: relative divorce, in the form of legal separation, and
1. Repeated physical violence or grossly abusive conduct annulment.
directed against the petitioner, a common child, or a
child of the petitioner; Grounds for legal separation
2. Physical violence or moral pressure to compel the The policy of our laws on marriage is to emphasize that
petitioner to change religious or political affiliation; marriage is more than a mere contract; that it is a social
3. Attempt of respondent to corrupt or induce the institution in which the state is vitally interested, so that its
petitioner, a common child, or a child of the petitioner, continuation or interruption cannot be made to depend upon
to engage in prostitution, or connivance in such the parties themselves.4 State policies recognize the fact that
corruption or inducement; public interest will not be served if the spouses are to be
4. Final judgment sentencing the respondent to allowed to go their respective ways. Where there are offspring,
imprisonment of more than six years, even if the reason for maintaining the conjugal union is even more
pardoned; imperative. It is for this reason that the grounds for legal
5. Drug addiction or habitual alcoholism of the separation must be construed as exclusive and restrictive.
respondent; Hence, legal separation may only be allowed based on the
6. Lesbianism or homosexuality of the respondent; following grounds enumerated under Article 55 of the Family
7. Contracting by the respondent of a subsequent Code.
bigamous marriage, whether in the Philippines or
abroad; ARTICLE 56
8. Sexual infidelity or perversion;
9. Attempt by the respondent against the life of the The petition for legal separation shall be denied on any of
petitioner; or the following grounds:
10. Abandonment of petitioner by respondent without 1. Where the aggrieved party has condoned the offense
justifiable cause for more than one year. or act complained of;
2. Where the aggrieved party has consented to the
commission of the offense or act complained of;

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ARTICLES 50-64
Continuation of Void and Voidable Marriage; Legal Separation
3. Where there is connivance between the parties in the Connivance
commission of the offense or act constituting the While consent is unilateral, or an act of only one spouse,
ground for legal separation; connivance implies agreement, express or implied, by both
4. Where both parties have given ground for legal spouses to the ground for legal separation.
separation;
5. Where there is collusion between the parties to obtain Collusion
the decree of legal separation; or Collusion in divorce or legal separation means the agreement
6. Where the action is barred by prescription. between husband and wife for one of them to commit, or to
appear to commit, or to be represented in court as having
ARTICLE 57 committed, a matrimonial offense, or to suppress evidence of a
An action for legal separation shall be filed within five valid defense, for the purpose of enabling the other to obtain a
years from the time of the occurrence of the cause. divorce or legal separation. This agreement, if not express,
*** may be implied from the acts of the parties. It is a ground for
Defenses in Legal Separation denying the legal separation.
The petition for legal separation shall be denied on any of the
foregoing grounds. Hence, any of these circumstances shall be It has been held that collusion may not be inferred from the
a defense in an action for legal separation. mere fact that the guilty party confesses to the offense and
thus enables the other party to procure evidence necessary to
Condonation prove it. On the other hand, there would be collusion if the
Condonation is the conditional forgiveness or remission, by a parties had arranged to make it appear that a matrimonial
husband or wife, of a matrimonial offense which the other has offense had been committed although it was not, or if the
committed. parties had connived to bring about a legal separation even in
the absence of grounds therefore.
It blots out an imputed offense against the marital relation so
as to restore the offending party to the same position he or she Prescription
occupied before the offense was committed.18 As such, it bars An action for legal separation must be filed within five years
the right to legal separation. from the time of the occurrence of the cause; otherwise, the
action is barred by prescription.36 In this connection, it has
It is a conditional forgiveness because the condonation is been held that while the wife has not interposed prescription as
subject to an implied condition that the party forgiven will a defense, the courts may nevertheless take cognizance
abstain from the commission of the like offense thereafter.19 thereof, because actions seeking a decree of legal separation,
A breach of this condition revives the right of suit for the or annulment of marriage, involve public interest and it is the
original misconduct. policy of our law that no such decree be issued if any legal
obstacles thereto appear upon the record
Condonation may either be express, i.e., signified by words or
writing, or implied from the conduct of the parties. The latter, Effect of Death
however, is much the more common; and it is in regard to this An action for legal separation which involves nothing more
that the chief legal difficulty has arisen. The only general rule than the bed-and-board separation of the spouses is purely
is, that any cohabitation with the guilty party, after the personal. Being personal in character, it follows that the death
commission of the offense, and with the knowledge or belief of one party to the action causes the death of the action itself –
on the part of the injured party of its commission, will amount – action personalis moritur cum persona.
to conclusive evidence of condonation; but this presumption
may be rebutted by evidence to the contrary ARTICLE 58
An action for legal separation shall in no case be tried
Consent before six months shall have elapsed since the filing of the
Consent is agreement or conformity in advance of the petition.
commission of the act which would be a ground for legal
separation.23 It may be given expressly or impliedly. Express ARTICLE 59
consent is that directly given, either viva voce or in writing.24 No legal separation may be decreed unless the Court has
Implied consent is that manifested by signs, actions, or facts, taken steps toward the reconciliation of the spouses and is
or by inaction or silence, from which arises an inference that fully satisfied, despite such efforts, that reconciliation is
the consent has been given. highly improbable.
***
Consent differs from condonation in that the former is given in Cooling Off Period
advance or prior to the commission of the act which would be Article 58 of the Family Code mandates that an action for
a ground for legal separation; whereas, the latter is the legal separation must “in no case be tried before six months
forgiveness of a matrimonial offense after its commission. shall have elapsed since the filing of the petition,” obviously
in order to provide the parties a “cooling-off” period. In this
interim, the court should take steps toward getting the parties
to reconcile. During this period, the court where the action is

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ARTICLES 50-64
Continuation of Void and Voidable Marriage; Legal Separation
pending shall remain passive and is precluded from hearing ARTICLE 62
the suit. During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support
Under Section 3 of R.A. No. 9262, “violence against women of the spouses and the custody and support of the common
and their children” refers to any act or a series of acts children.
committed by any person against a woman who is his wife, ***
former wife, or against a woman with whom the person has or Pendency of Legal Separation Case
had a sexual or dating relationship, or with whom he has a During the pendency of the action for legal separation, the
common child, or against her child whether legitimate or court, motu proprio or upon application under oath of any of
illegitimate, within or without the family abode, which result the parties, guardian or designated custodian, may issue
in or is likely to result in physical, sexual, psychological harm provisional orders and protection orders with or without a
or suffering, or economic abuse including threats of such acts, hearing. These orders may be enforced immediately, with or
battery, assault, coercion, harassment or arbitrary deprivation without a bond, and for such period and under such terms and
of liberty. It includes, but is not limited to, the following acts: conditions as the court may deem necessary.
A. “Physical Violence” refers to acts that include bodily or
physical harm; ARTICLE 63
B. “Sexual violence” refers to an act which is sexual in The decree of legal separation shall have the following
nature, committed against a woman or her child. effects:
C. “Psychological violence” refers to acts or omissions 1. The spouses shall be entitled to live separately from
causing or likely to cause mental or emotional suffering of each other, but the marriage bonds shall not be
the victim such as but not limited to intimidation, severed;
harassment, stalking, damage to property, public ridicule 2. The absolute community or the conjugal partnership
or humiliation, repeated verbal abuse and mental shall be dissolved and liquidated but the offending
infidelity. spouse shall have no right to any share of the net
D. “Economic abuse” refers to acts that make or attempt to profits earned by the absolute community or the
make a woman financially dependent. conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43(2);
ARTICLE 60 3. The custody of the minor children shall be awarded to
No decree of legal separation shall be based upon a the innocent spouse, subject to the provisions of
stipulation of facts or a confession of judgment. Article 213 of this Code; and
In any case, the Court shall order the prosecuting attorney 4. The offending spouse shall be disqualified from
or fiscal assigned to it to take steps to prevent collusion inheriting from the innocent spouse by intestate
between the parties and to take care that the evidence is succession. Moreover, provisions in favor of the
not fabricated or suppressed. offending spouse made in the will of the innocent
*** spouse shall be revoked by operation of law.
No Judgment Based on Stipulation of Facts or Confession
of Judgment ARTICLE 64
Even the 1940 Rules of Court, which preceded the 1950 Civil After the finality of the decree of legal separation, the
Code of the Philippines and the Family Code, direct that innocent spouse may revoke the donations made by him or
actions for the annulment of marriage or divorce shall not be by her in favor of the offending spouse, as well as the
decided unless the material facts alleged in the complaint are designation of the latter as a beneficiary in any insurance
proved. The same rule is reiterated in Section 1 of Rule 19 of policy, even if such designation be stipulated as
the 1964 Revised Rules, with “legal separation” being irrevocable. The revocation of the donations shall be
substituted for “divorce,” obviously because the Civil Code recorded in the registries of property in the places where
did not authorize absolute divorce. The rule is now enshrined the properties are located.
in Article 60 of the Family Code, to the effect that no decree
of legal separation shall be based upon a stipulation of facts or Alienations, liens and encumbrances registered in good
a confession of judgment. faith before the recording of the complaint for revocation
in the registries of property shall be respected. The
ARTICLE 61 revocation of or change in the designation of the insurance
After the filing of the petition for legal separation, the beneficiary shall take effect upon written notification
spouses shall be entitled to live separately from each other. thereof to the insured.
The court, in the absence of a written agreement between
the spouses, shall designate either of them or a third The action to revoke the donation under this Article must
person to administer the absolute community or conjugal be brought within five years from the time the decree of
partnership property. The administrator appointed by the legal separation has become final.
court shall have the same powers and duties as those of a
guardian under the Rules of Court.

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