Article 39 of the Family Code: No deadline to file for nullity
Status: Amended
Amended
This provision has been amended. The text below is the current version.
- Amended by: Executive Order No. 227
- Amended by: Republic Act No. 8533
What does Article 39 say?
The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.
What does it mean in plain language?
Article 39, as amended by Republic Act No. 8533, says the action or defense for the declaration of absolute nullity of a marriage does not prescribe. In plain words: there is no deadline. A spouse can ask a court to declare a void marriage void at any time, and can raise the nullity as a defense in another case at any time.
This rule is only for void marriages: the cases in Articles 35, 36, 37 and 38, among others. Annulment of a voidable marriage and legal separation have their own deadlines.
How does it work in real life?
Rosa and Ben: married in 1985
Rosa and Ben married in 1985, before the Family Code took effect. Rosa believes Ben was psychologically incapacitated on their wedding day. Under the 1987 version of Article 39, her case would have had to be filed within ten years after the Code took effect. Since Republic Act No. 8533, there is no deadline. Rosa can still file today, but she must prove the ground with evidence.
Teresa and Victor: a missing license, 20 years later
Teresa and Victor married in 2004 without a marriage license, and no exception applied. In 2024 Teresa wants the marriage declared void under Article 35(3). Twenty years have passed, but Article 39 sets no limit.
Gil and Myra: a voidable marriage
Gil discovered in 2018 that Myra had hidden a drug addiction before their wedding. That is fraud, a ground for annulment, not nullity. Article 47 gives him five years from the discovery. Article 39 does not help him, because his marriage is voidable, not void.
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?
- No deadline does not mean an easy case. The court still needs proof of the ground. For psychological incapacity, the Supreme Court in Tan-Andal v. Andal requires clear and convincing evidence.
- Even without a deadline, a final court judgment is needed before either party can remarry (Article 40).
- To compare nullity, annulment and legal separation, including who may file, see annulment vs nullity vs legal separation.
What changed in Article 39?
Article 39 was rewritten twice:
- Executive Order No. 227 (1987) set the rule that the action or defense does not prescribe, but with one exception. For marriages celebrated before the Family Code took effect and falling under Article 36, the action or defense would prescribe ten years after the Code took effect.
- Republic Act No. 8533 (1998) removed that exception. Its title says it nullifies the prescriptive period for actions or defenses grounded on psychological incapacity. Article 39 now has one sentence and no exception.
So the special ten-year limit for marriages celebrated before the Family Code took effect and falling under Article 36 no longer exists. Article 39 now sets no time limit for any action or defense to declare a marriage void.
Why does the E-Library copy of the Family Code look different?
The consolidated Family Code page on the Supreme Court E-Library prints Article 39 correctly, with a note that Republic Act No. 8533 deleted the ten-year phrase. But under Article 36 it still prints an older second paragraph: "The action for declaration of nullity of the marriage under this Article shall prescribe in ten years after its celebration."
That paragraph is not in force. Executive Order No. 227 rewrote Article 36 as a single paragraph, without any deadline, and Article 39 now says the action does not prescribe. This site shows Article 36 and Article 39 as amended.
Which cases have deadlines, and which do not?
| Case | Deadline | Article |
|---|---|---|
| Declaration of nullity (void marriage) | None | Article 39 |
| Annulment (voidable marriage) | Depends on the ground; most are five years | Article 47 |
| Legal separation | Five years from the cause | Article 57 |
Republic Act No. 11596 says the same for child marriages: they are void from the start, and the action or defense to declare them void does not prescribe.
Which Supreme Court rulings are relevant?
Frequently asked questions
Is there a time limit to file a case under Article 36 (psychological incapacity)?
No. Since Republic Act No. 8533, Article 39 says the action or defense to declare a marriage void does not prescribe, and this covers Article 36 cases. The old ten-year limit for marriages celebrated before the Family Code was removed.
Does Article 39 apply to annulment?
No. Article 39 is about void marriages, which are declared null. Annulment is for voidable marriages under Article 45, and Article 47 sets who may file and the deadlines, most of them five years.
Does it apply to legal separation?
No. Article 57 says an action for legal separation must be filed within five years from the time the cause occurred.
What does 'action or defense' mean?
An action is a case you file to have the marriage declared void. A defense is when you raise the nullity of the marriage to answer a claim in another case. Article 39 says neither one expires with time.
My marriage is 30 years old. Is it too late to ask the court to declare it void?
Not because of time alone. Article 39 sets no deadline. The court will still look at whether a ground for nullity is proven with evidence.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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