Article 41 to 47 or the Family Code

Question 1

What is Article 41 of the FAMILY CODE?

Answer 1

ARTICLE 41

A marriage contracted by any person during the 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 4 consecutive years and the pouse present had 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 purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must:
  
  • ​institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of the reappearance of the absent spouse.

Question 2

What is Article 42 of the FAMILY CODE?

Answer 2

ARTICLE 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.

Question 3

What is a BIGAMOUS marriage?

Answer 3

BIGAMOUS MARRIAGE

• marriage contracted while a previous one exists is NULL AND VOID

Even if first marriage is voidable.

• If first marriage is void, second marriage is also VOID BUT NOT BIGAMOUS
• Carino v. Mercado* – “If no declaration of nullity in first void marriage, subsequent ones are still bigamous”

Question 4

^{<em>BIGAMY AND PETITION FOR RECOGNITION</em>}

CASE: FUJIKI v. MARINA

FACTS:

Filipina obtained judicial decision in Japanese court declaring her second marriage with second Jap husband void on bigamy grounds.

First Japanese husband filed for Recognition of Foreign Judgment.

Can the Recognition of Foreign Judgement be granted?

Answer 4

HELD:

• It can be granted; must show official publication and certified copy of officer.
• Need only to prove that it’s not contrary to public policy in the Philippines.

Question 5

When can a BIGAMOUS marriage be VALID??

Answer 5

VALID BIGAMOUS MARRIAGE

1. If present spouse files for declaration of presumptive death of missing spouse, can contract 2nd marriage.

w/o prejudice to reappearance of missing spouse;

• Missing for 4 years
• Missing for 2 years w/danger of death

Examples:

• Vessel lost during sea voyage
• Plane lost in flight
• Part of the armed forces
• Other danger-of-death circumstances for 2 years

^{<strong>Declaration of death</strong> can be <u>overthrown by evidence</u>}

^{<em>Was not required before in the Civil Code</em>}

2. Subsequent marriage is TERMINATED upon recording of affidavit of reappearance in the civil registry

3. If not filed by reappeared spouse, both 1st and 2nd marriage will be valid (not bigamous)

• ^{<em>Creates problems! Returning spouse cannot marry unless annuls marriage (grounds must be valid)</em>}
• ^{<em>New spouse cannot file legal separation for sexual infidelity because spouse is technically married to returning spouse</em>}

Any interested party can file for such statement

Question 6

What is required to FILE for a Presumption of Death?

Answer 6

FILING FOR PRESUMPTION OF DEATH

1. Secure Issuance of Declaration
2. Liquidate Properties
3. Well-founded belief of death: ^{this is needed before the issuance of the declaration}

Belief must be result of honest inquiries and efforts to find spouse.

Question 7

U.S. v. BIASBAS

FACTS:

Macario Biasbas used substandard means in finding Janet Monica. He did not seek the help of the British Embassy when she left, did not contact her parents or friends, and claims for mistake in her possible location and missing letters were insufficient means. Biasbas contracted a new marriage. Is new Marriage bigamous?

Answer 7

HELD:

YES. Macario was charged with bigamy.

Question 8

What is the punishment for BIGAMY?

Answer 8

Prision Mayor (6y1d-12y)

Question 9

Is a Judical Declaration for PRESUMPTION OF DEATH required in all CASES?

Answer 9

No.

• Judicial Declaration for PoD (Presumption of Death) is not generally required in other cases.
• It is only required in purposes of remarriage.

Question 10

What is Article 43 of the FAMILY CODE?

Answer 10

ARTICLE 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)

Question 11

What is Article 44 of the Family Code?

Answer 11

ARTICLE 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.

Question 12

Discuss Article 44 Requirements and requisites.

Question 13

When is the SUBSEQUENT marriage VOID?

Answer 13

• Marriage only void when BOTH are in bad faith.
• Still valid if only ONE is in bad faith.

Question 14

What is Article 45 of the FAMILY CODE?

Answer 14

ARTICLE 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 <u>disappeared or ceased</u>, 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)

Question 15

What is Article 46 of the FAMILY CODE?

Answer 15

ARTICLE 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. (86a)

Question 16

Why is a Marriage w/no Parental Consent for those who contract a marriage between the ages 18 to 21 annullable?

Answer 16

If no NO PARENTAL CONSENT:

18-21 years old not mature yet to marry

• State aims to prevent troublesome relationship due to unpreparedness

Question 17

When is there FRAUD? What must it INVOLVE?

Answer 17

FRAUD

• Defined as concealment of certain info that would affect marriage
• Grounds for fraud must be provided by law, Can’t be just any reason.
• Must involve CONCEALMENT

Question 18

What are the FORMS of FRAUD that are STIPULATED by the LAW?

Answer 18

FORMS OF FRAUD STIPULATED BY LAW

PREVIOUS CONVICTION

• involve moral turpitude: contrary to good morals, justice, honesty
• Must be FINAL JUDGMENT

PREGNANCY

• Done in bad faith
• Mere pregnancy is not sufficient
• At face, is discriminatory – man can also be guilty of impregnating another woman

SEXUALLY TRANS. DISEASE

• gravity of fraud immaterial here; mere concealment is enough
• Can still be ground even if not concealed (must be incurable)

VICE ADDICTION

• Habitual Drunk – always wanting to get drunk, not necessarily alcoholism
• Disables them from rearing children

HOMOSEXUALITY

• Violates trust and differences of sexes
• Being gay is not the violation; but the CONCEALMENT of such.
• Could even subsist if parties have agreement;
• Concealment is wretched for the aggrieved

Question 19

AQUINO v. DELIZO

FACTS:

Respondent wife was only 4 months pregnant. Petitioner claims wife was naturally plump and could not have predicted her to be pregnant.

Was this Pregnancy fraud?

Answer 19

PREGNANCY FRAUD.

HELD:

Even though the pregnancy had already manifested and that as a general rule the male should have seen such, it was not so obvious here and thus it was still a concealment from him.

Question 20

FOSS v. FOSS

FACTS:

Man marries woman knowing her unchaste life before. At time of marriage, woman claimed that she was pregnant with man and assured him of so. Child was discovered not to be his.

ISSUE:

W/N the man can file for annulment based on concealment of pregnancy.

Answer 20

HELD

Man came with unclean hands. Man also surrendered inquiry by believing woman. His right to complain was surrendered by sticking with her.

He cannot file for annulment. :(

Question 21

What is Vitiated Consent?

Answer 21

VITIATED CONSENT

• Consent must not be obtained by force, intimidation, undue influence
• Proven by Preponderance of Evidence (POE)
  
  • ^{Prolonged action or cohabitation for several years eliminates vitiation of consent}

Question 22

What is INTIMIDATION?

Answer 22

Intimidation:

Reasonable fear of imminent evil on person or property

• Age, Sex, Condition of person matters in intimidation
• Violence can be either physical, moral, verbal

Question 23

CASE: DONATO v. LUNA

FACTS:

Petitioner’s claim that his consent was vitiated by force was disproved by the affidavit that they had lived together for 5 years w/o benefit of marriage.

ISSUE:

W/N Marriage is INVALID due to claim of Vitiation by FORCE.

Answer 23

HELD:

Marriage is valid because of such cohabitation for 5 years.

Question 24

CASE: VILLANUEVA v. COURT OF APPEALS

FACTS:

Petitioner claims that he had been forced to marry Lilia. He also claims that strangers would harass him in UE regarding the marriage.

Answer 24

HELD:

• However, it has already been 4 years and 8 months since the marriage yet the action only took place now.
• Also, petitioner was a security guard, who would naturally know to defend himself as well as ask help from others if he was really ganged up by such strangers.
• He also possessed letters professing love for Lilia.

PETITION DENIED.

Question 25

When is there GROUNDS for ANNULMENT in terms of INCAPACITY?

Answer 25

INCAPCITY TO CONSUMMATE

• Permanent inability to complete sexual intercourse
• Now includes even psychological aside from merely physical inability (Part on either husband or wife)
  
  • Mere refusal is NOT an excuse

Burden of proof is upon the person alleging incapacity with the use of POE. Presumption is favor of potency

Question 26

What is TRIENNIAL COHABITATION?

Answer 26

TRIENNIAL COHABITATION

If the wife remains a virgin for 3 years from the start of cohabitation, the husband must show he was not impotent in the 3 year period + burden of proof is upon him

EX: TOMPKIN v. TOPMKINS

FACTS:Man claimed he did not have sex with wife for 5 years since it was painful for her. Medical reports showed she was normal and could perform sexual intercourse.

HELD: Man was the one incapacitated.

Question 27

Expound on STERILITY. Is it grounds for ANNULMENT?

Answer 27

• STERILITY is not an impotency because sterile people can still have sex.
• Possession of ability to bear children is NOT A REQUIREMENT in marriage, so long as sexual intercourse is possible.

Question 28

What is ARTICLE 47 of the Family Code?

Answer 28

The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

1. For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one, or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;
2. For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other’s insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;
3. For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;
4. For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;
5. For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

Question 29

Discuss ANNULMENT.