Deficiencies of the Family Code of the Philippines (II): Void and Voidable Marriages?
Time and again, I have been baffled by the distinction made in the Philippine Family Code between the so called “void” and “voidable” marriages. In Canon Law, that distinction would not make any sense, since in the first place, a valid marriage cannot be voided—which would be tantamount to the breaking of the marriage bond (divorce). In the second place, a close reading of the factors typifying one and the other defective marriage in civil law does not really result in an essential difference. What is the rationale behind such distinction?
Distinction between Void and Voidable Marriages according to Civil Law
According to a well-known civil law commentator, the fundamental distinction between void and voidable marriages is that “a void marriage is deemed never to have taken place at all, while a voidable or annullable marriage is considered valid and subsisting until it is set aside by a competent court.”  Another commentator, looking deeper into the issue, states that a void marriage is based on absence of an essential requisite or requisites, like lack of age, absence of marriage license when required, public policy (e.g., consanguinity in a certain degree), and is not subject to ratification—i.e., it is void ab initio. Thus, the action or defense for declaration of nullity of a void marriage does not prescribe, except as provided by law. On the other hand, a voidable marriage is based principally on a vitiated consent and is subject to ratification by cohabitation (i.e., which would imply a subsequent and persisting marital consent). 
As a result of this general difference, the former commentator would continue, the following further distinctions arise: (1) a void marriage can be impugned collaterally, while a voidable marriage can only be impugned in a direct proceeding for annulment; (2) a void marriage may be questioned even after the death of the parties, while a voidable marriage can no longer be impugned after either of the parties is dead, in which case the remaining parties would be treated as if the marriage had been perfectly valid; (3) a void marriage cannot be ratified or confirmed, while a voidable marriage is generally made perfectly valid by ratification or confirmation, through continued cohabitation; (4) the validity of a void marriage may be assailed by any one if the question becomes material, while an annullable marriage can be generally attacked only by a party to it, and (5) the action or defense to declare the nullity of a void marriage generally does not prescribe, while the action to set aside a voidable marriage prescribes.
An attempt to identify the fundamental difference between one and the other marriage, however, especially with their articulation in the Family Code of the Philippines, leads to a dead end. Typical of the positivistic approach in most civil law systems in the present world, one is lead to the conclusion that the fundamental difference between one and the other is simply the will of the legislator—who has typified certain marriages as void and others as voidable.
Deficient Juridic Structure of Marriage in Philippine Civil Law
In a number of articles in this column over the years, I have considered the juridic structure of marriage—in the Law of the Church—as standing on three pillars: (1) the capacity to marry of the spouses, (2) matrimonial consent and (3) the canonical form. In this scheme, the different factors that can vitiate the coming about of marriage (marriage in fieri) can be neatly considered and—even more important in the juridic world—subjected to judicial verification, such that a defect in any one of the three can result in an invalid marriage (void from the start).
In contrast, the provisions of the Philippine Family Code for void and voidable marriages (Title I, Chapter 3 of the Family Code) do not show such a clear juridic structure—despite the quite obvious provenance of its norms from the corresponding canons of the Code of Canon Law. Thus, absent the juridic framework, the civil law provisions for the declaration of marriage nullity give the impression of being legalistic or casuistic: the process is reduced to a case of lawyering to get a marriage annulled.
Had the Family Code followed the juridic framework employed in Canon Law for the juridic structure of marriage, the sources of invalidity of a marriage would have been as follows:
|I. Incapacity to Marry (Presence of Diriment Impediment): Results in Void Marriage|
|a. Lack of Age||Art.45, (1): Above 18 yrs but less than 21 yrs, without consent of parent, guardian or substituted parental authority over the party.
N.B. In Family Code this falls under voidable marriage.
|c.1083: Man less than 16yrs, woman less than 14yrs.|
|b. Impotence||Art.45, (5): Physically incapable of consummating the marriage with the spouse, such incapacity continues and appears incurable.
N.B. In Family Code this falls under voidable marriage.
|c.1084: Antecedent and perpetual impotence to have intercourse, either absolute or relative.|
|c. Existing Marriage Bond||Art.35, (4): Those bigamous or polygamous marriages not falling under Art.41.
Art.41: A marriage contracted during the subsistence of a previous marriage shall be null and void, unless the prior spouse had been absent for 4 consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where danger of death is present as provided for by Art.391 of Civil Code, an absence of 2 yrs is sufficient.
|c.1085, §1: A person who is held to the bond of a prior marriage, even if it has not been consummated.|
|d. Consanguinity||Art.37, (1): Between ascendants and descendants of any degree, and (2) Between brothers and sisters.
Art.38, (1): Between collateral blood relatives up to 4th civil degree.
|c. 1091, §1: All degrees of direct line; §2: up to 4th degree of collateral line.|
|e. Legal Affinity||Art.37, (2): Between step-parents and step-children; (3): Between parents-in-law and children-in-law.
|c.1092: Affinity in the direct line in any degree.|
|f. Adoption||Art.37, (4): Between the adoptive parent & adopted child; (5) Between surviving spouse of adopting parent & adopted child; (6) Between surviving spouse of adopted child & adopter; (7) Between adopted child & legitimate child of adopter; (8) Between adopted children of same adopter.||c.1094: Those related in the direct line or in the 2nd degree of collateral line through legal relationship arising from adoption.|
|g. Crime||Art.37, (9): Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his/her own spouse.||c.1090, §1: A person who for the purpose of entering marriage with another has brought about the death of that person’s spouse or one’s own spouse.|
|h. Psychological incapacity||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, even if such incapacity becomes manifest only after its solemnization.||c.1095, 3º: Those who, because of causes of a psychological nature, are unable to assume the essential obligations of marriage, are incapable of contracting marriage.|
|II. Lack of Full Consent: Results in Voidable Marriage|
|a. Unsound mind||Art.45, (2): Party was of unsound mind, unless such party after coming to reason freely cohabited with the other as spouse.||c.1095, 1º: Those who lack the sufficient use of reason are incapable of contracting marriage.
In CIC this results in void marriage.
|b. Fraud||Art.45, (3): 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.
Art.46. Any of the following circumstances shall constitute fraud: (1) Non-disclosure of a previous conviction of a crime involving moral turpitude; (2) Concealment by the wife of pregnancy, at the time of marriage, by a man other than the husband; (3) Concealment of a sexually transmissible disease existing at the time of the marriage; (4) Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation shall constitute fraud as will give grounds for action for the annulment of marriage.
|c.1098: A person contracts invalidly who enters marriage inveigled by deceit, perpetrated in order to secure consent, concerning some quality of the other party, which of its very nature can seriously disrupt the partnership of conjugal life.|
|c. Violence||Art.45, (4): Consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter cohabited with the other as husband and wife.||c.1103: A marriage is invalid which was entered into by reason of force or of grave fear imposed from outside, even if not purposely, from which the person has no escape other than by choosing marriage.|
|III. Lack of Juridical Form: Results in Void Marriage.|
|a. Invalid solemnizing officer||Art.35, (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.||c. 1108, §1: Only those marriages are valid which are contracted in the presence of the local Ordinary or parish priest or of the priest or deacon delegated by either of them, who, in the presence of two witnesses, assists, in accordance with the rules set out in the following canons…
§2: Only that person who, being present, asks the contracting parties to manifest their consent and in the name of the Church receives it, is understood to assist at a marriage.
|b. No license||Art.35, (3): Those solemnized without license, except those covered by the preceding chapter.|
Inconsistencies in the Family Code
Through an attentive examination of the tabulation above, the following inconsistencies in the Family Code can be seen—cases which the Family Code classifies as voidable marriages: lack of age (Art.45, 1), impotence (Art.45, 5) and unsound mind (Art.45, 2).
One might ask: What makes these three cases any different from the others, which the Family Code classifies as void from the start? Why should they be considered valid until set aside by a competent court? For that matter, are not all marriages—duly celebrated/solemnized—really considered valid until set aside by a competent court?
To my mind, this betrays a fundamental defect in the matrimonial law system of the Family Code, which is almost akin to the acceptance of divorce: the very notion that some marriages are voidable and not just void ab initio.
In contrast, the Code of Canon Law classifies all three cases as cases of an invalid marriage—i.e., void ab initio. Hence, even if in all cases marriages really enjoy the favor iuris or presumption of validity until a competent court declares its invalidity, such marriages as are declared invalid would be invalid ab initio, what the Family Code would call void marriages.
In conclusion, I think the distinction between void and voidable marriages in the Family Code is moot and academic. Either a marriage is valid or invalid.
If a marriage were valid it cannot be invalidated or voided as that would be tantamount to divorce. On the other hand, even if it were invalid in itself, with the favor iuris enjoyed by a duly celebrated/solemnized marriage, it would be considered valid until declared otherwise by the competent tribunal. Perhaps this was what should have been referred to as voidable—i.e., because it was really void to begin with.
 A.Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol.1, Central Lawbook Publishing Co., Quezon City (1990), pp.270-310.
 J.N. Nolledo, The Family Code of the P hilippines Annotated (revised ed.), National Bookstore Inc., Manila (1993), p.43.