A void marriage and a voidable (annullable) marriage differ not only in their grounds but in their effects. A void marriage is considered to have never validly existed from the beginning; a voidable marriage is valid until annulled by a court. Despite the theoretical difference, both generally require a judicial declaration: even a void marriage needs a judicial declaration of nullity before a party can remarry, or the second marriage risks bigamy. On the children: children of a voidable marriage conceived or born before the annulment decree are legitimate. For void marriages, children are generally illegitimate, with a crucial exception, children of marriages void due to psychological incapacity (Article 36) are considered legitimate, and children of the first and subsequent void marriages under the rules on subsequent marriages have special treatment. On property: a voidable marriage's property regime (absolute community or conjugal partnership) is liquidated upon annulment, with the share of a spouse in bad faith possibly forfeited in favor of the common children. A void marriage does not create a community or conjugal partnership; instead, the property relations are governed by the rules on co-ownership under Articles 147 or 148, depending on whether there was a legal impediment. On succession and other effects, a decree annulling a voidable marriage or declaring a marriage void, once final, is recorded in the civil registry, and the parties' status, property, custody, and support of children are settled in the same proceeding. So the void-versus-voidable distinction affects the legitimacy of children, the property regime, and the consequences of the decree, even though both generally require going to court.
Void vs. Voidable at a Glance
A void marriage never validly existed; a voidable one is valid until annulled. Yet both generally need a judicial declaration — even a void marriage, before a party can remarry (or risk bigamy).
Effect on Children
Children of a voidable marriage (conceived/born before the decree) are legitimate. Children of a void marriage are generally illegitimate — except children of marriages void for psychological incapacity (Art. 36), who are legitimate.
Effect on Property
A voidable marriage's regime (community/conjugal) is liquidated on annulment, with a bad-faith spouse's share possibly forfeited to the children. A void marriage has no community — property follows co-ownership under Art. 147 or 148.
Practical Takeaways
- Both void and voidable marriages generally need a court decision;
- Legitimacy of children differs (Art. 36 void marriages are an exception);
- Property: liquidated regime (voidable) vs. co-ownership (void).
Frequently Asked Questions
Do I need a court case even if my marriage is void? Yes. Even a void marriage requires a judicial declaration of nullity before a party can remarry, or the subsequent marriage risks being bigamous.
Are children of a void marriage legitimate? Generally illegitimate, with a crucial exception: children of marriages void due to psychological incapacity under Article 36 are considered legitimate. Children of a voidable marriage conceived or born before the decree are legitimate.
What happens to property in a void marriage? A void marriage does not create an absolute community or conjugal partnership. Instead, the property relations are governed by the co-ownership rules of Article 147 or 148, depending on whether there was a legal impediment.
What happens to property in a voidable marriage? The property regime is liquidated upon annulment, and the share of a spouse in bad faith may be forfeited in favor of the common children.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
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