Text of the provision
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 [sic] preceding Chapter;
(4) Those bigamous or polygamous marriages not failing [sic] 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.
Family Code of the Philippines, Executive Order No. 209, approved July 6, 1987. The Code took effect on August 3, 1988 (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005). Reproduced in full. The two passages marked [sic] appear in that form in both the Arellano Law Foundation (LawPhil) and ChanRobles renderings of the official text; they are reproduced as found rather than silently corrected.
What this article means
Article 35 lists the marriages that are void from the beginning — treated in law as never having existed at all. This is different from an annullable marriage under Article 45, which is valid until a court says otherwise. A void marriage is void from day one, though a court declaration is still required before either party may remarry.
Most petitions under this article turn on paragraph (3), the absence of a valid marriage licence, or paragraph (4), a bigamous marriage. Paragraph (2) contains an important safety valve: a marriage solemnized by someone without authority is not void if either party believed in good faith that the officer had authority.
The grounds in practice
- Under 18 — void regardless of parental consent. Contrast Article 45(1), where a party aged 18 to 20 married without parental consent produces a merely voidable marriage.
- Unauthorised solemnizing officer — subject to the good-faith exception.
- No marriage licence — except marriages exempt from the licence requirement.
- Bigamous or polygamous — except those falling under Article 41 (the presumptive-death situation).
- Mistake as to identity — a genuine mistake about who the other party is, not about their character, wealth or history.
- Subsequent marriages void under Article 53 — where the liquidation, partition and delivery requirements were not complied with.
A note on the text
Two passages in the official text read oddly, and we reproduce both exactly as enacted rather than quietly correcting them. Anyone citing this provision should know what the text actually says.
Paragraph (4) — "not failing under Article 41." This is a printing error for "not falling under Article 41," and should be read that way. The paragraph carves out of the bigamy rule those subsequent marriages contracted after a judicial declaration of presumptive death under Article 41 — which are valid, not bigamous. Nothing turns on the misprint, but the text is what it is.
Paragraph (3) — "except those covered the preceding Chapter." A word appears to be missing; the sense is "covered by the preceding Chapter," referring to the marriages exempt from the licence requirement.
These are not transcription errors on our part. Both the Arellano Law Foundation (LawPhil) and ChanRobles render the provision in exactly this form, which is why we do too.
Related provisions
- Article 36 — psychological incapacity, a further ground rendering a marriage void.
- Article 45 — grounds for annulment, producing a voidable rather than void marriage.
- Article 41 — remarriage after a spouse's presumptive death.
- Article 53 — the liquidation requirement referenced in paragraph (6).
Cases interpreting this article
- Abbas v. Abbas, G.R. No. 183896, January 30, 2013 (Velasco, Jr., J.) — the leading modern authority on paragraph (3). The marriage licence is a formal requisite; where the licence number on the certificate belongs to no licence actually issued to the parties, the licence is absent and the marriage is void ab initio. Decided under the Family Code (marriage celebrated 1992).
- Republic v. Dayot, G.R. Nos. 175581 and 179474, March 28, 2008 — a false affidavit of five years' cohabitation cannot exempt a marriage from the licence requirement; the marriage is void for want of a licence. Decided under Civil Code Article 76 (marriage celebrated 1986, before the Family Code took effect), but it is the leading authority on the cohabitation exception now carried into Article 34, and so on when a marriage is void under Article 35(3).