TERMINATION

OF MARRIAGES: PROCEDURE AND EFFECTS

Voidable Bigamous Marriage
(A41)

Void Marriages (except A41)

Annulled Marriages

I. CHILDREN

Filiation

Legitimate

Illegitimate
except: void marriages due to psychological
incapacity & subsequent void marriage
due to failure to comply with LPD)

Custody (of minor

children only)

Must be litigated in a
separate action because the nature
of the termination of this marriage
does not require a court proceeding.
(Filing of an Affidavit of
Reappearance).

During pendency:
For temporary custody during pendency of the proceedings:
(a) The spouses written agreement; [and if there is none]
(b) Court Order (custody pendente lite). The only criteria is the best interest of the children,
the children are not asked to choose.
Courts will honor written agreement regarding custody during the pendency of the case. The
rules on custody of minor children with the mother applies only if there is no written
agreement.

Court follows the same rules in Void

and Annulled Marriages

Legitimate if born/conceived
before the issuance of decree of
annulment

Final decree:
The final judgment must include who gets custody over the children, including visitation
rights for the other spouse (unless there is compelling reason to deny such), and taking into
consideration the choice of the children aged at least 7 years.

If the child at least 7y, the Court MAY ask for their choice

If child is less than 7y the mother has custody unless there are compelling reasons
against this. Courts decide based on the best interest of the child(ren).

Custody orders can be final, but they are not necessarily permanent. A parent can
petition the Courts to review and change the arrangements if circumstances change
(e.g. the custodial parent subsequently becomes unfit).

The non-custodial parents visitorial rights must also be respected, unless there are
compelling reasons to deny the same.

A father who was deprived of custody because of the minority of the children (below
7 years) can petition the court again when the child/children reach 7 years of age,
arguing for the best interests of the child.
NOTES:
In determining custody, the courts paramount consideration is the moral and material
welfare of the child(ren) [aka principle of the best interest of the child]. Children below 7
years SHALL NOT be separated from the mother, unless there is/are compelling reasons (Art.
213)
A mother was declared unsuitable to have custody of her children in these instances:
neglect, abandonment, unemployment, immorality, habitual drunkenness, drug
addiction, maltreatment of the child, insanity or affliction with a communicable disease
What are not compelling reasons: the mother is less wealthy than the father; or per se a
lesbian, a prostitute, or was unfaithful to her husband. Sexual preference of moral laxity
alone will not suffice. It must clearly be established that her moral lapses have had an
adverse effect on the welfare of the child or have distracted her from exercising proper
parental care, i.e. living openly with her brother-in-law (the childs uncle); emotion &

TERMINATION OF MARRIAGES: PROCEDURE AND EFFECTS

psychological disturbance is created on the child after seeing her mother live with a bad
man who was working for the father; or the mother brings customers to where the child
lives.
The main consideration is the environment for the child to grow up normally.
Support

Must be litigated in a
separate action because the nature
of the termination of this marriage
does not require a court proceeding.
(Filing of an Affidavit of
reappearance).
Court follows the same rules in Void
and Annulled Marriages

During pendency:
While the case is ongoing, support arrangements will be governed by either:
(a) the written agreement of the spouses, or if there is none
(b) Court Order (support pendente lite)
NOTE: The support will come from the absolute community or conjugal partnership property.
Final decree:
The support shall continue by both the spouses, but the separate properties of each spouse
shall be answerable to the support. The decree will indicate the amount of support.
Whether during or after:

Support is proportionate to the income of each spouse; adjustments will be made

when the spouses are not similarly situated (housewife v. high-earning husband).

A judgment for support never becomes final; the cases remain in the court dockets
and may be changed.

The Courts will consider voluntary agreements for the support of the children. Once
approved, it is deemed written into the judgment, and revision will be allowed only
through filing of the appropriate pleading in the proper court.

Presumptive Legitime

This is not required by law for this

situation (Art. 50 only provides for
the application of Art. 51 for
instances of judicial declarations of
nullity or annulment)

Delivery of presumptive legitime is included in the final decree of nullity or annulment.

Computed as of the date of the final judgment of the trial court, delivered in cash,
property or sound securities, unless the parties, by agreement that is approved by
the judge, already provided for such matters.

Delivery of presumptive legitimes shall not prejudice the successional rights of the
children accruing upon the death of either or both parents, but the value of that
already received shall be considered advances.

N/A
(no provision of law applies. After all
the 2nd marriage is terminated
because the 1 st marriage is revived)

During pendency:
gR: spouses get support from the absolute community or conjugal partnership property
(because there is no liquidation as of yet). Whatever is received in the pendency is
considered an advance on their share of the property, which they are to get once the
marriage is terminated.
EXCEPTION: if evidence is strong that a spouse is guilty of the cause of the nullity
or annulment (e.g. contracting a 2nd marriage knowing that the 1st was still
subsisting, if the innocent spouse can present the 2 MCs, these are considered
strong evidence not to grant the erring spouse support pendente lite).

II. SPOUSES

Support

After final decree:

No entitlement to support (since spousal support is founded on marriage, its termination also
ends duty to support the spouses, regardless of cause or fault of nullity or annulment).

TERMINATION OF MARRIAGES: PROCEDURE AND EFFECTS

Proceedings
When a marriage is terminated (either by decree of nullity or annulment, but not by death), the ACP/CPG must be dissolved, then liquidated, partitioned,
distributed and presumptive legitime delivered. [See Article 53 in relation to Article 50 and 52].

The requirement of liquidation, partition and distribution is true even for voidable bigamous marriages under Article 41, by virtue of Art. 43, EXCEPT
that there is no requirement for the delivery of presumptive legitimes.

The failure to comply with this provision makes any subsequent marriage void EXCEPT in the case of Article 41 [presumably because there would be
no subsequent marriage since the 1 st marriage has been revived]. The Family Code does not provide consequences if the parties to an Article 41
marriage fail to comply.
DISSOLUTION OF CONJUGAL PROPERTY REGIME (ACP or CPG)
1. An Inventory shall be prepared, listing the ACP/CPG and exclusive properties of each spouse.

using market value, not purchase value.

For CPG only:
1.1 Credits to CPG: advances by the CPG to support Illegitimate children, pay for personal debts that did NOT redound to family, fines / indemnities of
spouse incurred -> credited back to the CPG assets
1.2 Reimbursement to Spouses if separate property used for conjugal purposes, the CPG pays the spouse reimbursement
2. Debts and obligations of the ACP/CPG shall be paid by assets.

In case of insufficiency, spouses shall be solidarily liable with their separate properties as in article 94(2).
3. Delivery of the remaining Exclusive properties of the spouses to each of them.
For CPG only:
3.1 Indemnity of Losses CPG shall pay spouse owner of the losses or deterioration of movables used for the benefit of the family, belonging to
either spouse, even due to fortuitous event.
4. Partition of the Net Assets - The net remainder of the properties of the ACP/CPG shall constitute its net assets, which shall be divided equally between
husband and wife, unless a different proportion was agreed upon in the MS, or unless voluntary waiver of share (art. 82).
The bad faith / guilty spouse in Annulment forfeits his share in the net profits.
In nullity of marriage, see rules in art. 147 or in art. 40 (ACP/CPG).
For purpose of computing the NET PROFITS subject to FORFEITURE in accordance with Articles 43(2) and 63(2), the said PROFITS shall be the increase
in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its
dissolution.
5. Delivery of Presumptive Legitime of Common Children
Required only in cases of subsequent void marriage in art. 40, 52, 53; and annulment grounds in art. 45;
NOT required in Legal Separation or in Nullity in art. 35.
6. Conjugal Dwelling and Lot will go to spouse with custody of majority of the children.
Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise.
In case there in no such majority, the court shall decide, taking into consideration the best interests of said children.
PRESUMPTIVE LEGITIME:
The net proceeds of each spouse/2 goes to the spouses separate property, the other will be divided among the common children as the presumptive
legitime.

TERMINATION OF MARRIAGES: PROCEDURE AND EFFECTS

FORFEITURE

Only if one spouse is in bad faith in contracting the marriage. Not applicable if both are in bad faith.
Nullity: The spouse knew there was a subsisting marriage
Annulment: first four grounds

If after the forfeiture, the guilty spouse has no more assets from which to get the presumptive legitime, then no legitime shall be delivered.
RECORDING
The following must be recorded, otherwise these will not bind third persons [Also, SC issued rule that there will be no entry of judgment unless these are recorded]:
o
The judgment of annulment or of absolute nullity of the marriage,
o
the partition and distribution of the properties of the spouses and
o
the delivery of the children's presumptive legitimes
Where recorded (all must concur)
o
civil registry where the marriage was celebrated and recorded
o
civil registry where the decree of nullityor annulment was made
o
civil registry where the real properties are located
After the

Liquidation, partition,
distribution

Donations propter
nuptias

Testamentary
dispositions

Designation as
beneficiary in insurance

A spouse in bad faith forfeits the

share in the net profits of ACP or CPG
in favor of (in this order):
1. The common children,
2. Children of the guilty spouse
3. The innocent spouse

Donations by reason of marriage

shall remain valid. If the donee
contracted the marriage in bad faith,
such donations made to him/her
shall be revoked by
operation of law.

The spouse who contracted the

subsequent marriage in bad faith
shall be disqualified to inherit from
the innocent spouse by
testate/intestate
succession.

The innocent spouse may revoke the

designation of the other spouse who
acted in bad faith as a beneficiary in
any insurance policy.

termination of marriage, a child is entitled to

FORFEITURE (in case of one party being a guilty spouse),
PRESUMPTIVE LEGITIME; and
SUPPORT (in that order of preference.) These do not exclude each other. The children have a right to compel their parents to deliver the presumptive
legitime.