Void Ab Initio Marriages, A35 Family Code

1. Concept

1) Void marriages are no marriages. (Tan-Andal v. Andal, En Banc, G.R. No. 196359, 11 May 2021, Per Leonen, J.)

2. Grounds

Void Marriages	Absence of a marriage requisite
	Psychological Incapacity
	Incestuous Marriages
	Contrary to Public Policy
	Re-Appearance of Absentee Spouse

a. Absence of a marriage requisite

Ground	Type of Requisite	Requisites
1) Below 18 years of age	Essential	Legal Capacity; Consent (Article 2, FC)
2) Unauthorized Solemnizing Officer	Formal	Authority of Solemnizing Officer (Article 3[1], FC)
3) No marriage license	Formal	Marriage License (Article 3[2], FC)
4) Bigamous or Polygamous	Essential	Legal Capacity (Article 2[a], FC)
5) Mistake as to identity	Essential	Consent (Article 2[b], FC)
6) Void under Article 53	—	—

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.

1) Per Article 2 of the Family Code, legal capacity is one of the essential requisites of marriage. Under Article 5, the marrying age is at least 18 years of age. If either/both contracting parties are under 18 years of age, the marriage is void under Article 35(1) of the Family Code.

Related: Article 5, Family Code

b) Parental Consent

1) Even if parental consent is given, a person less than 18 years of age is not legally allowed to get married due to the express provisions of Article 35(1) of the Family Code. Hence, notwithstanding the consent given by the parents concerned, the marriage is void.

2) Parental consent does not invalidate the essential requisite of age under Article 5 of the Family Code, i.e., a contracting party to a marriage must be at least 18 years of age.

2) Unauthorized Solemnizing Officer

1) Per Article 3 of the Family Code, the authority of the solemnizing officer is one of the formal requisites of marriage. If an unauthorized solemnizing officer officiates a marriage, the marriage is void under Article 35(2) of the Family Code.

2) Not all solemnizing officers are authorized to officiate marriages. Thus, Article 7(2), Family Code requires solemnizing officers to obtain a written authority to solemnize marriage.

Related: Article 3, Family Code

a) Exception 1: Good faith belief

A. Good Faith

1) Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. (Florentino v. Apeta, G.R. No. 146259, 13 September 2007, Per Sandoval-Gutierrez, J.)

B. Question of Intention; Evidence of Conduct

1) Good faith is ordinarily used to describe that state of mind denoting honesty of intention and freedom from knowledge of circumstances which ought to put the holder upon inquiry; an honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. In short, good faith is actually a question of intention. Although this is something internal, we can ascertain a person’s intention not from his own protestation of good faith, which is self-serving, but from evidence of his conduct and outward acts. (Bacsasar v. Civil Service Commission, G.R. No. 180853, 20 January 2009, Per Nachura, J.)

C. Either/Both Parties in Good Faith

1) If either/both contracting parties believed in good faith that the solemnizing officer has the legal authority to officiate their marriage, then the marriage is valid even if it turns out that the solemnizing officer did not have, in fact, any authority to solemnize marriages.

3) No marriage license

1) Per Article 3(2) of the Family Code, a valid marriage license is one of the formal requisites of marriage. If there is no marriage license was obtained before the celebration of the marriage, the marriage is void under Article 35(3) of the Family Code.

a) Exception: Exceptional Marriages

1) Exceptional marriages do not require a marriage license, such as:

(a) Articulo mortis (point of death);

(b) Remote residence;

(d) 5-year cohabitation without legal impediment to marry.

4) Bigamous or Polygamous Marriages not under Article 41

1) Bigamous marriages – refer to the act of entering a subsequent marriage while a previous marriage is still existing. (See: Bigamy: Merriam-Webster Online Dictionary)

2) Polygamous marriages – refer to the act of entering multiple marriages. (See: Polygamy: Merriam-Webster Online Dictionary)

3) Per Article 3(4) of the Family Code, bigamous or polygamous marriages are void marriages – except those under Article 41.

4) Article 41 refer to marriages involving absentee spouses or those presumed dead.

Related: See below.

5) Mistake as to the Identity of the Other

1) Per Article 3(5) of the Family Code, mistake as to the identity of one of the contracting parties results in a void marriage.

2) A marriage is considered void when it is contracted based on a mistake as to the identity of one of the parties. In legal terms, this means that one spouse did not actually intend to marry the person who appeared at the ceremony, but someone else entirely—due to deception, misrepresentation, or confusion. (OpenAI ChatGPT-4 [2025], reviewed by J. Del Puerto. Available at: https://chat.openai.com [Accessed: 12 April 2025])

3) This type of error strikes at the very heart of consent, which is an essential element of a valid marriage. The law recognizes that genuine consent cannot exist if it was given under a false belief about the identity of the other person. Without informed and voluntary consent, the marriage has no legal foundation. (Ibid.)

4) For example, if someone is tricked into marrying a person they believed to be another individual—perhaps through impersonation or fraud—that marriage is void from the beginning (void ab initio). It is as if the marriage never legally existed. (Ibid.)

6) Subsequent Marriages Void under Article 53

Related Provisions:

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)

Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

1) Per Article 3(6) of the Family Code, subsequent marriages under Article 53 are void.

2) When a marriage is annulled or declared null, the law allows the former spouses to remarry. However, this right to remarry is not automatic. The law requires strict procedural compliance before any new marriage can be considered valid. (OpenAI ChatGPT-4 [2025], reviewed by J. Del Puerto, supra.)

3) Under Article 52, before either party may contract a new marriage, three essential actions must be recorded in the appropriate civil registry and property registries:

(a) The final judgment of annulment or nullity of the prior marriage;

(b) The partition and distribution of the spouses’ properties;

4) These steps ensure that the legal consequences of the dissolved marriage—especially those affecting property rights and children’s future inheritance—are properly addressed and made publicly accessible, especially to protect third parties such as future spouses or creditors. (Ibid.)

5) Article 53 then makes it clear: If either of the former spouses remarries without fulfilling all these requirements, the subsequent marriage is considered null and void from the beginning. This rule is in place to ensure the orderly administration of rights and obligations arising from the dissolution of the first marriage before entering into a new one. (Ibid.)

6) In essence, the law [strictly requires] the first marriage to be invalidated—[and] it also requires proper documentation and settlement before a second marriage can take place. Failure to comply results in the absolute invalidity of the new marriage. (Ibid.)