Nullity of marriage before and after the Family Code

Published by rudy Date posted on April 22, 2009

Dear PAO,

Just a comment on your citation of Article 39 of the Family Code that “the action or defense for the declaration of absolute nullity of marriage shall not prescribe.” You must have overlooked the continuation; i.e. “however, in the case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this code shall have taken effect (August 3, 1988).” This must be clarified, because the first marriage must have been celebrated before the effectivity of the Family Code; hence, the action has already prescribed, the last day to file being on August 3, 1998.  — Angel Ramos 

Dear Mr. Ramos, 

We appreciate your concern about the citation of Article 39 of the Family Code of the Philippines in one of our articles. We would like to express our gratitude to you for bringing the issue before us so that everybody will be enlightened by the reply we are going to make.

As mentioned in your comment, Article 39 of the Family Code provides: 

“Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe. However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall have taken effect.” 

This was the original text of the said article when Executive Order No. 209, otherwise known as the Family Code of the Philippines, was promulgated and which took effect on August 3, 1988 after its publication. 

However, through the years of its existence, this particular Article has gone through series of amendments. The latest of which was Republic Act No. 8533, which was approved into law on February 23, 1998. Section 1 of the aforementioned law provides, to wit: 

“SECTION 1. Title I, Chapter 3, Article 39 of Executive Order No. 209, otherwise known as the Family Code of the Philippines, is hereby amended to read as follows:

TITLE I — MARRIAGE

CHAPTER 3 — VOID AND VOIDABLE MARRIAGES

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.”

It is clear from the foregoing that the filing of an action for the declaration of absolute nullity of marriage is imprescriptible regardless of the date of such marriage and regardless of its ground(s).

Therefore, an action for the declaration of absolute nullity of marriage may still be filed even though such marriage was celebrated before the effectivity of the Family Code of the Philippines. 

We hope that this satisfies your concern.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net or via text message (key in: Times dearpao <YOUR QUESTION> and send to 2299).

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