Article 38 of the Family Code: Marriages void for reasons of public policy
Status: In force
What does Article 38 say?
The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.
What does it mean in plain language?
Article 38 lists nine marriages that are void from the beginning "for reasons of public policy". They are marriages between: (1) blood relatives in the collateral line up to the fourth civil degree, such as first cousins; (2) step-parents and step-children; (3) parents-in-law and children-in-law; four relationships created by adoption (items 4 to 8); and (9) two people where one killed a spouse in order to marry the other.
These marriages are not incest (that is Article 37), but the law treats them the same way. They are void, they can never become valid, and anyone aged 18 or over may marry only if not "under any of the impediments mentioned in Articles 37 and 38" (Article 5).
How does it work in real life?
Dina and Marco: uncle and niece
Marco is the younger brother of Dina's father. They are three degrees apart in the collateral line. Under Article 38(1), a marriage between them is void from the beginning, even though Marco is only two years older than Dina.
Sonia and Jake: stepmother and stepson
Sonia married Jake's father when Jake was a teenager, so she is Jake's stepmother. Article 38(2) makes a marriage between a step-parent and a step-child void from the beginning, so a marriage between Sonia and Jake would be void.
Ivy and Ramon: the late husband's brother
Ivy's husband died. Years later she wanted to marry his brother Ramon. A brother-in-law is not on the Article 38 list, so this ground does not make the marriage void. The usual requirements, such as a marriage license, still apply.
Edgar and Pia: a crime to clear the way
Edgar killed his wife so that he could marry Pia. Under Article 38(9), any marriage between Edgar and Pia is void from the beginning. Edgar also faces criminal liability for the killing.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- A marriage void under Article 38 must still be declared void by a court before either party may remarry (Article 40).
- There is no deadline to file the case (Article 39).
- A marriage abroad that falls under Article 38 is not valid in the Philippines, even if it was valid where it was celebrated (Article 26).
- Items 4 to 8 come from the Family Code. Adoption itself is now governed by Republic Act No. 11642; see how to adopt a child.
- For the other void marriages, see Article 35, Article 37 and the overview of void marriages.
Which nine marriages does Article 38 make void?
| Item | Who cannot marry each other |
|---|---|
| (1) | Collateral blood relatives, legitimate or illegitimate, up to the fourth civil degree (uncle or aunt and niece or nephew; first cousins) |
| (2) | Step-parents and step-children |
| (3) | Parents-in-law and children-in-law |
| (4) | The adopting parent and the adopted child |
| (5) | The surviving spouse of the adopting parent and the adopted child |
| (6) | The surviving spouse of the adopted child and the adopter |
| (7) | An adopted child and a legitimate child of the adopter |
| (8) | Adopted children of the same adopter |
| (9) | Two people where one, intending to marry the other, killed that other person's spouse or his or her own spouse |
How do you count the "fourth civil degree"?
The Civil Code counts one degree for each generation. In the collateral line, you go up to the common ancestor and then down to the other person.
Thus, a person is two degrees removed from his brother, three from his uncle, who is the brother of his father, four from his first cousin, and so forth.
So:
- Brother or sister: 2nd degree. This is covered by Article 37, not Article 38.
- Uncle or aunt and niece or nephew: 3rd degree. Void under Article 38(1).
- First cousins: 4th degree. Void under Article 38(1).
- A parent's first cousin: 5th degree. Not covered by Article 38(1).
- Second cousins: 6th degree. Not covered by Article 38(1).
What is not on the list?
Article 38 names nine relationships and no others. A few relationships people often ask about are not on the list:
- A former spouse's brother or sister (a brother-in-law or sister-in-law). Article 38(3) covers only parents-in-law and children-in-law.
- Relatives in the collateral line beyond the fourth degree, such as second cousins.
A marriage that is not on the list can still be void or voidable for another reason, such as a missing license (Article 35).
Frequently asked questions
Can first cousins marry in the Philippines?
No. Article 38(1) makes a marriage between collateral blood relatives up to the fourth civil degree void, and first cousins are four degrees apart. It does not matter whether the relationship is legitimate or illegitimate.
Can second cousins marry?
Article 38(1) stops at the fourth civil degree. Counting the way the Civil Code does, second cousins are six degrees apart, so this ground does not cover them. Other grounds of the Family Code still apply to every marriage.
Can I marry my stepdaughter or stepson?
No. Article 38(2) says a marriage between step-parents and step-children is void from the beginning for reasons of public policy.
Can I marry my late wife's sister?
A former spouse's brother or sister is not on the Article 38 list. The list covers parents-in-law and children-in-law (Article 38(3)), not brothers-in-law or sisters-in-law. The other requirements for a valid marriage still apply.
Can an adopted child marry the adopter's own child?
Article 38(7) makes a marriage between an adopted child and a legitimate child of the adopter void from the beginning. Article 38(8) also covers two children adopted by the same adopter.
What if someone killed his own spouse in order to marry another person?
Article 38(9) makes that marriage void from the beginning. It covers parties where one, intending to marry the other, killed that other person's spouse or his or her own spouse.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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