Is partition of common properties a pre-requisite to declaration of nullity of marriage?

By Atty. Eduardo T. Reyes III

Not all marriages are made in heaven. Some are unfortunate as their stars were not aligned when they exchanged their “I dos.”

Yet, there could be consequences as to properties acquired during the cohabitation when the marriage is later on declared as void.

Here are the commonly-asked questions on property relations in respect to void marriages:

• Do void marriages have a property regime?

No.  When the marriage is void, the parties do not have a property regime. “Void marriages are no marriages. Thus, the provisions of the Family Code on property relations between husband and wife- the systems of absolute community, conjugal partnership of gains, and separation of property- do not apply in disposing of properties that may have been acquired during the parties’ cohabitation.”(Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021).

• What governs property relations of couples in a void marriage?

The rules on co-ownership under the Civil Code. “Pertinently, the rules on co-ownership, in relation to Article 147 of the Family Code, govern the liquidation, partition, and distribution of the common properties of spouses, whose marriage is declared void under Article 36 of the same Code.” (Chan Tee Ten v. Tee Ten, G.R. No. 259322, August 6, 2025)

• How can couples in a void marriage partition their commonly-acquired properties?

What governs the liquidation of properties owned in common by couples in a void marriage are the rules on co-ownership.  In Valdes, the Court ruled that the property relations of parties in a void marriage during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code.  The rules on co-ownership apply and the properties of the spouses should be liquidated in accordance with the Civil Code provisions on co-ownership. Under Article 496 of the Civil Code, “[p]artition may be made by agreement between the parties or by judicial proceedings. x x x.” It is not necessary to liquidate the properties of the spouses in the same proceeding for declaration of nullity of marriage. (Diño v. Diño, G.R. No. 178044, January 19, 2011).

• May the decree of absolute nullity of marriage be issued even without prior liquidation of common properties of couples in a void marriage?

Yes. As a consequence, “the decree of absolute nullity of the marriage shall be issued upon finality of the trial court’s decision without waiting for the liquidation, partition, and distribution of the parties’ properties under Article 147 of the Family Code.”  (Diño v. Diño, G.R. No. 178044, January 19, 2011).

• Is partition required before a marriage can be declared void by the court?

No. It is also settled that it is not necessary to liquidate the common properties of the spouses in the same proceeding for declaration of nullity of marriage under Article 36. (Chan Tee Ten v. Tee Ten, G.R. No. 259322, August 6, 2025) In a more recent case, it was concluded that “Thus, the Court finds no reason to reverse the RTC and the CA rulings, which did not order the partition of the co-owned properties as a prerequisite for the nullity of the marriage. The partition of the co-owned properties is not a precondition but is merely incidental to, and is a consequence of, the nullity of the marriage. To reiterate, since the petitioner’s and the respondent’s properties are governed by the rules on co-ownership, the parties are free to choose whether they intend to partition the properties through agreement or by judicial proceeding. The court deems it unnecessary to preempt this choice by mandating the partition of the properties in this case.” (Soto v. Reyes-Soto, G.R. No. 249759, April 22, 2026)

It is important to know the consequences of a void marriage because it is already bad enough that the marriage must end; it could be worse when the couple would have to quarrel over whatever properties they have acquired during their cohabitation. At the very least, their parting could be bittersweet if they don’t need to fight over common properties as this could possibly be their last interaction with each other.

(The author is the senior partner of ETRIII Law Firm which is based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer and a book author. Among the books he authored is “Law on Property and Essentials of Land Registration [2024 Edition]” which has been on the bestseller’s list in online shops for several months. In 2026, he published his second major legal textbook titled “Comprehensive Reviewer on Persons and Family Relations.” His website is etriiilaw.com).