FAMILY CODE OF THE PHILIPPINES (Title I)

Family Code of the Philippines

TITLE I

MARRIAGE

CHAPTER 1

REQUISITES OF MARRIAGE

Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this code.

(52a)

Article 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer. (53a)

by: Rose Ann Villanueva  

Legal Capacity

• Parties must have the necessary age (minimum age 18) or necessary consent of parents in certain cases
• There must be no legal impediment (prior existing marriage or certain relationships by affinity or consanguinity)
•  Consent is the permission for something to happen or agreement to do something
• Voidable if consent is vitiated by error, force, fraud and intimidation

In People v Santiago (51 Phil 68), the marriage between Santiago and his niece was declared void for lack of consent on the part of Santiago. He only got married to her to avoid prosecution because he raped her the same morning that the marriage was solemnized by a Protestant minister. The Supreme Court held that it was a mere ruse for him to escape criminal liability

Article 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a)

Article 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

  

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. 

        An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

by: Rose Ann Villanueva  

Examples of irregularities:

• presence of only one (1) witness
• lack of legal age of witnesses
• failure to comply with procedural requirements under Article 12
• non-observance of 3-month period under Article 15
• failure to comply with requirements

Marriage in jest - pretended marriage; no real intention of entering into the actual marriage status

Circumstances in Article 46 of the same Code that constitute fraud:

1. nondisclosure of a previous conviction involving moral turpitude;
2. concealment by the wife of a pregnancy by another man;
3. concealment of a sexually transmitted disease;
4. concealment of drug addiction, alcoholism, or homosexuality

ABSENCE, DEFECT, OR IRREGULARITY IN THE REQUISITES

1. ABSENCE of any of the essential or formal requisites shall render the marriage VOID AB INITIO, (FC Art 4, par. 1) except when it is solemnized by an unauthorized person with either or both contracting parties having good faith that he had authority to do so (FC Art 35, par. 2)
2. A DEFECT in any of the ESSENTIAL REQUISITES shall render the marriage VOIDABLE (FC Art 4, par. 2).
3. An IRREGULARITY in the FORMAL REQUISITES shall NOT AFFECT the validity of the marriage, but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable (FC Art 4, par. 3).

Republic of the Philippines vs. Liberty D. Albios

G.R. No. 198780. October 16, 2013

Mendoza, J.

Facts:

            A petition for a review on the decision of the Court of Appeals on September 29, 2011 declaring the marriage of Daniel Lee Fringer and respondent Liberty Albios as void ab initio. The couple was married on October 22, 2004 and that said marriage was contracted for the sake of Albios obtaining an American citizenship and Fringer being paid $2,000.00. Albios filed with the RTC a petition for declaration of nullity of their marriage on December 6, 2006 stating that after said marriage, they never lived together as husband and wife and that there was no intention of complying with the essential marital obligations of the marriage.

RTC ruled marriage void ab initio. The CA affirmed the ruling of the RTC,

Issue:
           Whether or not the marriage was void ab initio.

Ruling:
           No. The marriage cannot be considered as void ab initio since it satisfies the essential requirements of marriage as provided in Article 2. Consent was freely given by both parties in as much as they were aware of the obligations and consequences of their legal actions. 

Article 5. Any male or female of the age of eighteen years (18) or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a)

by: Aneleth Anjolyn Valencia  

Rules on validity of marriage

• The marriage is valid if there is consent of the parents. Without the consent of the parents, the marriage would only be voidable. If it is without the consent of the parties, the marriage is void.
•  If the parties to a marriage are below the ages of eighteen (18), even with the consent of their parents, the marriage would still be void. This is because they lack the legal capacity to marry.
•  Note that the impediment referred to in Article 37 of the Family Code pertains to blood relationship between the contracting parties, whether legitimate or illegitimate.
•  If a grandfather marries a granddaughter, the marriage is void because it is incestuous. This is true even if the relationship is legitimate or illegitimate and no matter how far the relationship is. As long as the relationship is in the direct line, the marriage is void.
•  The impediments in Article 38 of the Family Code also make the marriage void by reason of public policy

Reason for invalidity if below 18 of age.

•  Extreme youth may not lend stability to the marriage and the family.
•  Marriages have failed, families have been broken because of extreme irresponsibility of the spouses due to age. So, the law requires some degree of maturity.

Illustration:

A and B, both 17 years of age, Filipino citizens, got married. The marriage is void because of lack of capacity to marry. This is true even if the marriage was celebrated abroad where the marriage was valid there as such. The reason is that, the capacity of Filipino citizens to marry is determined by Philippine law and not the law of the place where the marriage was celebrated. (See Art. 15, New Civil Code).

Suppose A in the problem above was 27 years old and B was only 17 years of age, the marriage would still be void because the law requires that both contracting parties must have legal capacity to contract marriage.

Gender Requirement

• The law requires that the parties to a marriage must be a male and a female. This reason is obvious, for two males or two females cannot reproduce. 
• It must be remembered that no less than the law itself says that marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. (Art. 1, Family Code).

Article 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.

          In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of the said party, which fact shall be attested by the solemnizing officer. (55a)

Article 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court’s jurisdiction;

(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect;

(3) Any ship captain or airplane chief only in the cases mentioned in Article 31;

(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or

(5) Any consul-general, consul or vice-consul in the case provided in Art. 10. 

by: Kristia Capio  

MEMBER OF THE JUDICIARY WITHIN THE COURT'S JURISDICTION

Judges can solemnize marriage only within their courts’ jurisdiction. Besides, they must be incumbent and not retired judges. The Court of Tax Appeals, Sandiganbayan, Court of Appeals and the Supreme Court jurisdiction are national in scope. Judges who are appointed to specific jurisdictions may solemnize in weddings only within said areas and not elsewhere.

PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT

For a priest, rabbi, imam, or minister of any church or religious sect to be able to validly solemnize a marriage, the following four essential requisites must concur: he or she 1) must be duly authorized by his or her church or religious sect; 2) must act within the limits of the written authority granted to him or her by the church or religious sect; 3) must be registered with the civil registrar general; and 4) at least one of the contracting parties whose marriage he or she is to solemnize belongs to his or her church or religious sect. The group wherein a priest belongs may grant him a written authority which imposes limitations as to the place where he could solemnize a marriage. For example, a priest who is ordered and allowed by his local ordinary to solemnize marriage is authorized to do so only within the area of the diocese or the place allowed by his Bishop.

SHIP CAPTAIN AND AIRPLANE CHIEF

For a ship captain or airplane chief to be able to validly solemnize a marriage, the following requisites must concur: 1) the marriage must be in articulo mortis (at least one of the parties is at the point of death); 2) the marriage must be between passengers or crew members; and 3) generally, the ship must be at sea or the plane must be in flight. For this reason, an assistant pilot has no authority to solemnize a marriage. The assistant pilot is not allowed to solemnize marriage like for example, if the airplane chief dies during the trip, the assistant pilot who is in command of the airplane cannot solemnize a marriage because there is no law permitting such assumption of authority for the purpose of solemnizing a marriage.

MILITARY COMMANDER

The military commander must be a commissioned officer which means that his rank should start from a second lieutenant, ensign and above (Webster Dictionary, 1991 edition).

The following conditions must concur for a military commander to be able to solemnize a marriage: 1) he or she must be a military commander of a unit; 2) he or she must be a commissioned officer; 3) a chaplain must be assigned to such unit; 4) the said chaplain must be absent at the time of the marriage; 5) the marriage must be one in articulo mortis; 6) the contracting parties, whether members of the armed forces or civilians, must be within the zone of military operation. If the chaplain is present, he must be the one who should solemnize the marriage. The chaplain’s authority to solemnize proceeds from Article 7(2). Henceforth, if the chaplain cannot conform with Article 7(2), then it is as if he is absent as he cannot solemnize a marriage, in which case, the military commander can solemnize the marriage.

CONSUL-GENERAL, CONSUL, OR VICE CONSUL

Heads of consular posts are divided into four classes, namely: 1) consul general; 2) consul; 3) vice-consul; 4) consul agents. Only the first three are expressly authorized by the Family Code to solemnize marriage. When the contracting parties are both Filipino citizens that's when they can only solemnize marriage abroad. They act not only as the solemnizer of a marriage but also perform the duties of the local civil registrar, such as the issuance of a marriage license. When the marriage, which in itself is a special type of contract, is to be solemnized by the consul-general, consul, or vice-consul abroad or, specifically in his place of assignment, the solemnities recognized by Philippine laws shall be observed in their accomplishment.

Example:

A is the consul-general of the Philippines to Japan. He has a residence in Santa Cruz, Laguna. While vacationing at Santa Cruz, he solemnizes the marriage of B and C. The marriage cannot be valid because A has no authority to solemnize marriages outside of the place where he holds office.

MAYOR

Under the Family Code, governors, mayors, and ambassadors are not authorized to perform marriages. But mayors of a cities or municipalities are now empowered to solemnize a marriage, any provision of law to the contrary in accordance to the Local Government Code which took effect on January 1, 1992. When the mayor is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice mayor or the highest ranking Sangguniang Bayan member shall automatically exercise the powers and perform the duties of the local chief executive concerned, except the power to appoint, suspend, dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty days (Section 46 in relation to Section 445[4] of the 1991 Local Government Code). Appropriately, it has been held that the vice mayor of a municipality acting as Acting Mayor has the authority to solemnize marriages, because if the vice mayor undertakes the powers and duties of the office of the mayor it is irrelevant whether he is the Acting Mayor or just acting as mayor.

Example:

Vice Mayor Tristan Vito was the acting Mayor of Majayjay, Laguna when Mayor Jerome Javier went to Japan. As acting mayor, he can assume the powers of a mayor, as well as the authority to solemnize marriages. If both the Mayor and Vice-Mayor are abroad and Mrs. Liane Flores, the number one member of the Sangguniang Bayan is the acting Mayor, she can similarly solemnize marriages because she is also performing the duties and responsibilities of a mayor. The marriages are perfectly valid in all of these cases as the solemnizing officer is with authority to do so.

MARRIAGE CONTRACTED IN GOOD FAITH

Putative marriage, one where the solemnizing office has no authority but the lack of authority is not known to the parties. Under Article 35(2), if the marriage was solemnized by a person not legally authorized to solemnize a marriage and either of the contracting parties believed in good faith that such solemnizing officer had such authority, then the marriage shall be considered as valid.

Example:

X and Y, with capacity and no legal impediment to marry, with a marriage license go to the City Hall of Calamba. They are really looking for someone to solemnize their marriage. Then, an unknown person approaches them and they are brought to a room to solemnized their marriage where Z introduces himself as a judge. They do not know the person but they were made to believe that he is a judge, but the truth is, he is not a judge and they depend on upon such representation.

CASE

RODOLFO NAVARRO VS. JUDGE HERNANDO DOMAGTOY

A.M. No. MTJ-96-1088. July 19, 199

ROMERO, J

Facts:

Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro filed a complaint on acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy on the grounds of gross misconduct, inefficiency in office and ignorance of the law. 

Navarro alleged that the judge performed a marriage ceremony between Floriano Dador Sumaylo and Gemma del Rosario outside his court's jurisdiction on October 27, 1994. The judge has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos. 

The respondent judge contended that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; and that Article 8 applies which is a directory provision, refers to the venue of the marriage ceremony and does not qualify the authority of the solemnizing officer. 

Issue:

Whether or not the solemnization of the marriage of Sumaylo and Del Rosario was within the respondent’s court’s jurisdiction.

Ruling:

No. The solemnization of the marriage of Sumaylo and Del Rosario was not within the respondent's court's jurisdiction. As provided in Article 7 of the Family Code "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction" not allowing respondent judge to solemnize a marriage in the municipality of Dapa, Surigao del Norte since his jurisdiction only covers the municipalities of Sta. Monica and Burgos. Respondent judge argued Article 8 of the Family Code which states that “The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect." There is no evidence that either Sumaylo or Del Rosario was at the point of death or in a remote place.

In the case at bar, the solemnization of the marriage of Sumaylo and Del Rosario was outside the respondent’s court’s jurisdiction.

Article 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect.

by: Janine May Gumangol  

          The law requires a public ceremony of the marriage to ensure that if no one knows of a legal obstacle to the marriage, he/she should manifest it to the solemnizing officer during the celebration. If there is one who manifests such legal obstacle, the solemnizing officer would stop the ceremony.

    A marriage ceremony may be solemnized elsewhere if there is a written request in a sworn statement.

Example

      The parties requested that a marriage ceremony be solemnized at a function room of a certain hotel, then, it can be solemnized therein.

Consideration

       Even if there is no written request or sworn statement, still the marriage is valid as such is not an essential one. Moreover, the total absence of the same does not affect the validity of marriage, as it is a mere condition in one of the formal requisites of marriage which does not indicate the same.

Example

      Ben and Maria's marriage were solemnized by the town mayor without any request, the marriage is valid provided that all the essential requisites are present.

Article 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a)

Article 10. Marriage between Filipino Citizens abroad may be solemnized by a consul- general, consul or vice-consul of the Republic of the Philippines. The Issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a)

by: Richard Ramos 

From reading of the law, the consul- general, consul, or vice-consul acts as local civil registrar for Filipinos abroad. This is so because the issuance of the marriage license to the Filipinos abroad is done by him. He also solemnizes marriage between Filipino citizens abroad.

If the marriage is solemnized by a consul or vice-consul, there is no need for the contracting parties, who are Filipinos, to secure a certificate of legal capacity to marry. The requirement however lies if the marriage is to be solemnized by another person other than the consul or vice consul or consul-general.

The rules applies only if the marriage is solemnized by a consul and the parties are citizens of the Philippines.

Article 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: 

(1.) Full name of the contracting party;

(2.) Place of birth;

(3.) Age and date of birth;

(4.) Civil status;

(5.) If previously married, how, when and where the previous marriage was dissolved or annulled;

(6.) Present residence and citizenship;

(7.) Degree of relationship of the contracting parties;

(8.) Full name, residence and citizenship of the father;

(9.) Full name, residence and citizenship of the mother; and

(10.) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a)

by: Evita Teope

This article provides the data that must be included in the application for the marriage license. 

Article 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. 

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a)  

by: Evita Teope

This Article sets forth the rules by which the civil registrar shall determine whether the parties have required age for marriage.  

Article 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a)

by: Evita Teope

Article 13 is a substitute for Article 12. This is when either party had been previously married in which case the applicant or applicants, if both parties had been previously married,  shall present in lieu of birth or baptismal certificate, the enumerated listing in Art.13.  

The law simply enumerates the contents of an application for a marriage license. Specifically the age and civil status of the applicants. If the applicant is not of legal age as required by the law, or if there is any legal impediment as shown by the application, the Local Civil Registrar would still issue the license, but a notation of the same. A legal impediment is an obstacle to valid marriage, determined by civil authority.

 It also requires that if there was a previous marriage that has been annulled or nullified, the party or applicant concerned must attach it to the application in order to prove his capacity to contract marriage. Both parties' capacity to marry is an essential requisite of marriage, the absence of which renders the marriage null and void. 

It also provides that if either of the parties was previously married but the spouse is already dead, then the law allows the applicant concerned to execute an affidavit setting forth his or her actual civil status and the name and the date of death of the deceased spouse.

Article 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a)  

by: Evita Teope

Without the required CONSENT, the marriage is VOIDABLE. 

Therefore, the parties to the marriage who are between ages 18 and 21 must secure parental consent. Otherwise it is voidable. (Art. 25 [1] Family Code). 

A parental consent shall be manifested:

1. In writing by the person concerned who personally appears before the Local Civil Registrar; or
2. In the form of an affidavit made in the presence of two (2) witnesses and attested before any official authorized to administer oaths.

So if X and Y got married without the consent of their parents, is their marriage deemed to be invalid under the law?

No. Even if the parties failed to obtain their parents’ or guardian’s consent, their marriage is still considered as valid subject to the right of their parents or guardians to file for the annulment of their marriage within five (5) years from the celebration of the marriage. (Article 47 of the Family Code of the Philippines)

Non-compliance with the requirement of parental consent does not make the marriage invalid or void but merely voidable, which means that the marriage is valid until annulled.

As   As result, a petition for the annulment of the marriage may be filed by the parents, guardian or person having substitute parental authority over the party seeking the annulment, in that order, unless after attaining the age of majority, such party freely cohabited with the other and both lived together as husband and wife.

Article 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. 

by: Janine Gumangol

Article 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.

Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n)

by: Rose Ann Villanueva

Article 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

by: Aneleth Valencia 

     This notice is one of the modes by which the State interferes in the marriage to prevent violations of the marriage law. It is noted, however, that if the local civil registrar does not publish the application and still, he issues the license, the marriage is still valid, because after all, publicity is not an essential requisite of marriage. The said public officer may, however, be held criminally or administratively liable.

Article 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a bond required for the issuance of the order. (64a)

Article 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar. (65a)

Article 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued.

by: Kristia Capio 

LIFE OF A MARRIAGE LICENSE

The marriage license is valid only within the Philippines and not abroad. Under this Rule, the life of a marriage license subsists for 120 days from date of issue and with the expiry date stamped in bold character on the face of every license. The date of the signing of the local civil registrar of the marriage license is the date of the issue. From the date of issue, it should be claimed by the parties. If it is not claimed and therefore not used within 120 days, it shall automatically become ineffective.

EXAMPLE

The law allows the use of the marriage license anywhere in the Philippines.

A and B  obtained a marriage license in Laguna it can be used in Palawan provided that the 120 day period has not yet lapsed.

CASE

REINEL ANTHONY B. DE CASTRO vs ANNABELLE ASSIDAO-DE CASTRO

G.R. No. 160172. February 13, 2008

TINGA, J.

Facts:

Reinel and Annabelle met and became sweethearts in 1991. In September 1994 they planned to get married, so they applied for a marriage license with the Office of the Civil Registrar of Pasig City. They had their first sexual relation sometime in October 1994. When the couple went back to the Office of the Civil Registrar, the marriage license had already expired. Consequently, in order to push through with the plan, they executed an affidavit dated March 13, 1995 stating that they had been living together as husband and wife for at least five years. The couple got married on the same date, solemnized by Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City. However, after the ceremony, petitioner and respondent went back to their respective homes and did not live together as husband and wife.

Annabelle gave birth to a child named Reinna Tricia A. De Castro on November 12, 1995. Since the child’s birth, respondent has been the one supporting her out of her income as a government dentist and from her private practice.

Respondent filed a complaint for support against petitioner before the Regional Trial Court of Pasig City. In her complaint, respondent argued that she is married to Reinel who has "reneged on his responsibility/obligation to financially support her "as his wife and Reinna Tricia as his child."

Petitioner denied that he is married to respondent, claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit; and that he was just persuaded by the respondent to sign the marriage contract to save her from embarrassment and possible administrative prosecution due to her pregnant state; and that he was not able to get parental advice from his parents before he got married. He also explained that they never lived together as husband and wife and that he has never seen nor acknowledged the child.

In its decision, the trial court ruled that the marriage between petitioner and respondent is not valid because it was solemnized without a marriage license. However, it declared petitioner as the natural father of the child, and thus obliged to give her support.

Issue:

Whether or not the marriage is valid.

Ruling:

No, the marriage between the respondent and the petitioner is not valid. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value; it is a mere scrap of paper.  They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio.

Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.

    Stateless persons or refugees from other countries shall in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

by: Janine Gumangol 

The reason for the rule is that the capacity of foreigners to marry is determined by their personal law or national law.

The certificate will ensure that the foreigner is capacitated to marry.

Exception

 1. Immoral

     Bigamous, or

     Polygamous marriages

2. Immorally considered incestuous (closely related) marriages

        a. between ascendants and descendants of any degree, legitimate or illegitimate,

      b. Collateral line (related indirectly), between brothers and sisters of the full or half-blooded, whether the relationship be legitimate or illegitimate

Condition

     1. Absence of certificate of legal capacity is not one of the requirements of a valid marriage, but a mere added requirement before a marriage license is issued. Meaning, without such certificate, the marriage is still valid.

     2. If it turns out that the foreigner is not really capacitated, the marriage is not valid because of lack of capacity.

     3. If a foreigner is a refugee or a stateless person, then a mere affidavit stating the circumstance of his legal capacity would be sufficient.

Reason

     No diplomatic or insular official would issue such certificate.

Article 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state:

(1) The full name, sex and age of each contracting party;

(2) Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage;

(4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title;

(5) That either or both of the contracting parties have secured parental consent in appropriate cases;

(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and

(7) That the parties have entered into a marriage settlement if any, attaching a copy thereof. (67a)

Article 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a)

Article 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n)

Article 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n)

Article 26. all marriages solemnized outside the Philippines in accordance with the laws in force in the country where they solemnized, and valid there as such, shall also valid in this country except those prohibited under articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to marry, the Filipino spouse shall have the capacity to remarry under Philippine law. ( As amended by E. O. No. 227).

by: Richard Ramos

Rules on foreign marriage of Filipinos

   If a marriage is celebrated between Filipino citizen in a foreign country and valid there as such, generally, it is valid in the Philippines. There are however, exceptions to the rules as cited in Articles 35(1, 4, 5, and 6), 36, 37, and 38 of the Family Code. The cross-reference simply means that, if for example the marriage between the Filipino abroad is bigamous the same is void even if valid where it was celebrated because what determines their legal capacity is Philippine law.

   The second paragraph of Article 26 of the Family Code has cured the injustice under the old principles in the Civil Code for, while before, if a Filipina married a foreigner and the latter obtained a decree of divorce in his own country, the Filipina was still considered married because Article 15 of the Civil Code mandated that she was still married since the law that governed her legal capacity and status was the Philippine law. But such injustice has been cured where the law now allows her to remarry.

Strict application to the rule 26.

   The rule as contemplated by the framers of the Family Code is that, the marriage must be a mixed marriage, between a foreigner and a Filipino in order that Article 26, paragraph 2 may apply and that it must have been mixed from the very beginning. If it was mixed after its celebration, the law does not apply. It must be noted that despite such intention of the framers of the Family Code, the Supreme Court ruled otherwise in Republic v. Orbecido III, October 5, 2005 which will discussed elsewhere. It is also a requirement that it must have been the foreigner who obtained a divorce decree. If it is the Filipino who obtained the divorce decree, the law does not apply.

Reason behind Article 26 (20 of the Family Code

   Article 26, of the Family Code confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. The second paragraph of Article 26 of the Family Code provides that “ ( W)here a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law.”

  The second paragraph of Article 26 of the Family code only authorizes the Philippine courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce.

Unfair situation in Civil Code remedied.

   There was an unfair situation in our law under the Civil Code which the Family Code sought to remedy and which was remedied in Van Dorn v. Romillo and Pilapil v. Ibay- Somera.

Illustration:

  X, a Filipina married to Y, a foreigner, the foreigner left her and divorce her in his country, capacitating him to marry again under his national law. Under the old law, whether it was mixed marriage or not, the Filipino spouse was not capacitated to remarry in case he/she was divorce by the foreign spouse. This is due to the strict rule in Article 15 of the Civil Code and the principle that a divorce obtained abroad was contrary to morals. This has left the Filipino in unfair situation, for while the former spouse could remarry, yet he/she could not. So, the Supreme Court in Van Dorn and Pilapil gave recognition to the effects of foreign divorces. The Family Code followed the conditions that; (1) the marriage must be originally a mixed marriage; ( 2) the divorce must be obtained by the foreigner capacitating him/her to remarry under his/her national law. So that if the foreigner obtain the divorce, the Filipino is likewise capacitated to remarry. But let us say the parties were originally Filipinos, but after a few years one of them became American citizen and thereafter, he would obtained divorce decree capacitating him to remarry, the Filipina cannot remarry under Philippine laws because the marriage was not originally a mixed marriage.

Doctrine of Lex Loci  celebrationis.

  X, and Y, both Filipino citizens went to Hong Kong. They got married there before a lawyer. Under Hong Kong laws the marriage is valid. Is it also valid in the Philippines?

Yes, by way of implication from the provision of Articles 26 and 35(2 and 3), Family Code. If the marriage is valid where it was celebrated, it shall also valid in the Philippines. Authority to solemnizes is only a formal requirement that if valid where it was celebrated, it is valid in the Philippines in view of the doctrine of lex loci celebracionis.

CHAPTER 2

MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT

Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) Evita D Teope

In a marriage in Articulo Mortis or at the point of death, as provided in this Article, there is no need for a marriage license; but if the party at the point of death survives, the marriage would still be valid.

Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (72a)  Evita D Teope

Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a)

Thus, there must be no legal impediment to marry one another.

Art. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (75a)

Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)

Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a) Evita D Teope

This Article asserts that the marriage must be in the zone of military operation, such that the military commander has the authority to solemnize it. Otherwise, the military commander may not have the authority to solemnize the marriage.

Illustration:

XY, a soldier who was injured in the area of operation, for instance, in Marawi, was airlifted to Manila where he was confined at Philippine General Hospital. While at the emergency room, he was at the point of death. Can his military commander solemnize the marriage with his Y?

NO.  The marriage must be solemnized at the zone of military operation. The commander does not have authority outside of it. Marriage is void for lack of marriage license unless solemnized by the mayor of the City of Manila. (Art.27 FC)

Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a) Evita D Teope

Jean and Julius, both belonging to the Kankanaey ethnolinguistic group and are residents of Laguna, had their marriage solemnized by judge Prince in San Pablo City in accordance with the Christian rites and practices. Is there a need for a marriage license? YES. Otherwise, it is void.

     

     The condition of the validity of such marriage without a license is (1.) that the ceremony is in accordance with their customs, rites or practices, and (2.) that the marriage as an inviolable social institution shall be protected. Marriages performed in accordance with customary laws, rites, traditions, and practices shall be recognized as valid. As proof of marriage, the testimony of authorized community elders or authorities of traditional sociopolitical structures shall be recognized as evidence of marriage for purposes of registration. (Section 8, RA No. 8371, “The Indigenous Peoples’ Rights Act of 1997.”

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths.  

The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. (76a) Evita D Teope

Arch and Curvy, both without any legal impediment to marry one another having been living together and exclusively with each other as husband and wife for 6 years. In lieu of the license, an affidavit stating that they have been living together for more than 5 years and without any legal impediment to marry one another. A legal impediment is an obstacle to valid marriage, determined by civil authority.

But suppose Curvy was 16 years of age when they started living together and they decided to get married, would marriage license be required?

YES. They are not exempted from the requirement because of an impediment to marry one another. 

Why is there no license is required? rationale.

a.) To avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license.

b.) To preserve privacy.

Why 5 years?

The five-year common-law cohabitation should be a period of the legal union had it not been for the absence of the marriage.

The 5-year period should be the years immediately before the day of marriage and it should be cohabitation characterized by (1.) exclusivity which means that no third party was involved at any time within 5 years and (2.) continuity, meaning, unbroken.

 That the parties capacitated to marry each other.

REQUISITES FOR LEGAL RATIFICATION OF COHABITATION:

1. The man and woman must have been living together as husband and wife for at least five years before the marriage.

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present  at   the time of marriage;

4. The parties must execute an affidavit stating that they have lived together for five years;

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. (Borja-Manzano v. Judge   Sanchez, A.M. No. MTJ-00-1329, March 8, 2001, 354 SCRA1)

References:

sc.judiciary.gov.ph

Family Code of the Phils. by Albano, et al.

CHAPTER 3

VOID AND VOIDABLE MARRIAGES

Article 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without a license, except those covered by the preceding chapter;

(4) Those bigamous or polygamous marriages not falling under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other;

(6) Those subsequent marriages that are void under Article 53.

Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. No. 227, dated July 17, 1987).

Article 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood. (81a) 

by: Rose Ann Villanueva 

Incestuous. involving sexual intercourse between closely related people

Reasons for Prohibition:

1. grossly indecent
2. immoral, and inimical to the purity and happiness of the family and the welfare of future generations
3. creates problem of social placement because status is confused
4. very often result in deficient and degenerate offspring 

Examples of incest

1. Charles Darwin and Emma Wedgwood had ten children, three died at an early age. Of the seven left, three were infertile.

2. Tutankhamun and his half-sister Ankhesenamun

A virtual autopsy, using more than 2,000 scans of Tutankhamun’s mummy, reveal a more accurate image of the 19-year-old’s body.

Article 38. 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 stepchildren;

(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. (82a)

by: Aneleth Anjolyn Valencia 

     The law speaks of void marriages by reason of public policy, as public policy frowns upon those who are closely related by blood or artificial relationship from marrying each other.

Let me give one example in regards with provision number 2 which states "between step-parents and stepchildren": 

Question: 

A woman with a child G got married to a man with a child, B. May G and B get validly married to each other?

ANSWER: Yes, because although they are considered as stepbrother and stepsister of each other, still such a marriage, while prohibited under the Civil Code, is now allowed under the Family Code.

Article 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by R.A. No. 8533).

Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

by: Kristia Capio

JUDICIAL DECLARATION OF NULLITY

It does not follow that if a marriage is void, the spouses can just remarry. If a marriage between two contracting parties is void ab initio, any one of them cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage.

The Clause “On the Basis Solely of a Final Judgment Declaring Such Marriage Void’’ 

The clause “on the basis solely of a final judgment declaring such marriage void’’ in Art. 40 of the Code denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage.

Article 40 means that final judgment declaring the previous marriage void need not be obtained only for purpose of remarriage. Certainly, one can consider of other instances where a party might well petition the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the spouses, as well as an action for the custody and support of their common children.

NECESSITY OF JUDICIAL DECLARATION OF NULLITY OF MARRIAGE

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is required to be invoked for the purpose of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void.

The reason behind the rule that even if the marriage is void, there is a need to have it declared void is because of the fact that the parties to the marriage cannot decide for themselves the invalidity of their marriage. This is especially so that no less than the Constitution seeks to preserve the sanctity of the marriage, it being the foundation of the family.

EXAMPLE

A and B’s marriage are void ab initio believing that their marriage are void B marry C. B’s marriage to C is also void because it does not follow that if a marriage is void, the spouses can just remarry. If a marriage between two contracting parties is void ab initio, any one of them cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage.

CASE

DOROTHY B. TERRE vs. ATTY. JORDAN TERRE

A.M. No. 2349 July 3, 1992

PER CURIAM, J.:

Facts:

Dorothy Terre first met Jordan Terre when they were 4th year high school classmates in Cadiz City High School. She was then married to Merlito Bercinilla. Jordan courted her and this continued when they moved to Manila to pursue their studies. Jordan, a freshman law student, told Dorothy that her marriage with Bercenilla was void ab initio because they are first cousins. Believing and with the consent of her mother and ex-in-laws, she married Jordan on June 14, 1977. Jordan wrote “single” as Dorothy’s civil status despite the latter’s protests. Jordan said it didn’t matter because marriage was void. After their marriage, Dorothy supported Jordan because he was still studying. They had a son, Jason; however, after she gave birth, Jordan disappeared. She learned that he married Helina Malicdem. Dorothy filed charges for abandonment of minor, bigamy and grossly immoral conduct. Jordan was already member of the Bar.

Jordan claimed that he was unaware of Dorothy’s first marriage and that she sent her out of the house when he confronted her about it. He contacted the second marriage, believing that his marriage to Dorothy was void and ab initio because of her prior subsisting marriage.

Issue:

Whether or not a judicial declaration of nullity is needed to enter into a subsequent marriage.

Ruling:

Yes, a judicial declaration of nullity is needed to enter into a subsequent marriage. The court considered the claim of Jordan Terre as spurious defense. In the first place, respondent has not rebutted complainant’s evidence as to the basic fact which underscores that former was in bad faith. In the second place, the pretended defense is the same argument by which he inveigled complainant into believing that the complainant’s prior marriage on Merlito Bercenilla being incestuous and void ab initio, she was free to contract a second marriage with the respondent. Applying Article 40 of the Family Code “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void” for purpose of determining whether a person is legally free to contact a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Since respondent Jordan Terre is a lawyer he is bound to know about the aforementioned argument ran counter to the prevailing case law of the Supreme Court.

In this case, before entering to a subsequent marriage, judicial declaration of nullity must be obtain in accordance with Article 40 of the Family Code.

Article 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

       For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. 

by: Janina Gumangol 

Valid marriage under Article 41

Fundamental Requirements to Validate the Subsequent Marriage

1. The absent spouse must have been absent for four or two years under the circumstances provided by law;

2. The present spouse must not know the whereabouts of the absent spouse;

3. There must be a well-founded belief that the absent spouse is already dead;

4. There must be institution of a summary action for the declaration of presumptive death of the absent spouse;

5. There must be a final judgment declaring the absent spouse presumptively dead.

Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

     A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

by: Janina Gumangol 

Valid Bigamous Marriage

            Bigamous Marriage may be valid when a spouse has been absent for four consecutive years and the spouse had a well-founded belief that the absent spouse is already dead.

            The aforesaid four years (New Civil Code)  has been reduced to two years (Family Code) if the disappearance of the absent spouse, there is danger under the circumstances in Article 391 of the Civil Code.

It does not mean that mere absence of the spouse gives right to the present spouse to marry again.

Essential Requisites of the declaration of presumptive death of an absent spouse

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

Effect of declaration presumptive marriage

The first marriage is not terminated or dissolved except if annulled or void.

The termination of the second marriage would have no effect if the reappearance of the absent spouse is not proven.

The second marriage would be terminated if the absent spouse appears physically even without the registration of affidavit of appearance.

*Prior for filing an action for declaration of presumptive death of the absent spouse, it is required that the present spouse must actively exert serious efforts to locate the absent spouse, not mere superficial, passive efforts.

Instances of Presumptive Death under Article 391 of the New Civil Code

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard  of four years since the loss of the vessel or airplane;

2. A person in the armed forces who has taken part in war, and has been missing for four years; and

3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Reasons of the presumption of death before subsequent marriage is obtained

Benefit of the present spouse

            Protection from the pains and consequences of a second marriage (charge and conviction of bigamy if defense of good faith based on mere testimony is found incredible)

Benefit of the State

            The State shall protect and strengthen the family as a basic autonomous social institution under Article 2, Section 12 of the Philippine Constitution. It seeks to preserve marriage.

Remedy against fraudulent declaration of presumptive death

If one of the spouses obtained a judgment declaring the spouse presumptively dead, when in fact, she was never absent, thus the judgment was fraudulently obtained. The appropriate remedy is to file an action for annulment of judgment.

Sample Case (Effect of Declaration of Presumptive Marriage)

Republic of the Philippines vs. Nolasco

FACTS:

     Nolasco, a seaman, married with Janet Monica Parker in January 1982.

After the marriage celebration, he got another employment contract and left the province. In January 1983, Nolasco received a letter from his mother that 15 days after Janet gave birth to their son, she left. He cut short his contract  to find Janet. He returned home in November 1983.

     He did so by securing another contract which England is one of its port calls. He wrote several letters to the bar where he and Janet first met, but all were returned to him. He claimed that he inquired from his friends but they too had no news about Janet. In 1988, Nolasco filed before the RTC of Antique a petition for the declaration of presumptive death of his wife Janet.

     RTC granted the petition. The Republic through the Solicitor-General, appealed to the CA, contending that the trial court erred in declaring Janet presumptively dead because Nolasco had failed to show that there existed a well-founded belief for such declaration. CA affirmed the trial court's decision.

 ISSUE:

          Whether or not Nolasco has a well-founded belief that his wife is already dead.

RULING:

             No. Nolasco failed to prove that he had complied with the third requirement under the Article 41 of the Family Code, the existence of a "well-founded belief" that Janet is already dead.

            Under Article 41, the time required for the presumption to arise has been shortened to 4 years; however, there is a need for judicial declaration of presumptive death to enable the spouse present to marry. However,   Article 41 imposes a stricter standard before declaring presumptive death of one spouse. It requires a "well-founded belief" that the absentee is already dead before a petition for declaration of presumptive death can be granted.

         In the case at bar, the Court found Nolasco's alleged attempt to ascertain about Janet's whereabouts too sketchy to form the basis of a reasonable or well-founded belief that she was already dead. Nolasco, after returning from his employment, instead of seeking help of local authorities or of the British Embassy, secured another contract to London. Janet's alleged refusal to give any information about her was too convenient an excuse to justify his failure to locate her. He did not explain why he took him 9 months to finally reached San Jose after he asked leave from his captain. He refused to identify his friends whom he inquired from. When the Court asked Nolasco about the returned letters, he said he had lost them. Moreover, while he was in London, he did not even dare to solicit help of authorities to find his wife.

         The circumstances of Janet's departure and Nolasco's subsequent behavior make it very difficult to regard the claimed belief that Janet was dead a well-founded one.

Article 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)

Article 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law. (n)

by: Rirchard Ramos 

The law makes reference to the subsequent marriage after the declaration of presumptive death of the absent spouse. If the present spouse knew the whereabouts of the absent spouse, yet he/she filed an action for the declaration of presumptive death of said spouse, then, he or she is in bad faith.

If the other spouse in the subsequent marriage connived with the present spouse, then the said person is in bad faith. The net effect is that the subsequent marriage is void.

The law imposes certain sanction on them, that all donations, as well as testamentary disposition made by one in favor of the other, are revoked by operation of law. There is not even a need to perform a positive act of revocation.The law itself revokes the same, with the net effect of these donations being rendered void and the properties being reverted to the former owner.

Article 45: A marriage may be annulled for any of the following causes, existing at the time of marriage. 

1.) That the party on whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardians or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

2.) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

3.) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

4.) That the consent of either party by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife.

5.) That either party was physically incapable of consummating that the marriage with the other, and as such incapacity continues and appears to be incurable; or

6.) That either party was afflicted with a sexually-transmissible disease (STD) found to be serious and appears to be incurable.

by: Evita Teope

Annulment is a court proceeding with the objective severing marital relations between husband and wife. A petition for an annulment of a marriage is filed when the marriage is considered voidable or if it is valid but is susceptible of being voided pursuant to the grounds provided by the law.

A petition for annulment of marriage in the Philippines can be therefore be filed on the following grounds as provided under this article and in order that the case may prosper, the party alleging the existence of the grounds mentioned earlier must be proved:

1. Lack of parental consent

2. Insanity

3. Consent is obtained thru fraud

4. Consent is obtained thru force, intimidation, and undue influence

5. Impotence

6. STDs

Paragraph 3 of the Article refers to impotency. Impotency is the incapability of procreation. In here, the incapability must continue to be so and appears to be incurable. Impotence is a common problem among men and is characterized by the consistent inability to sustain an erection sufficient for sexual intercourse or the inability to achieve ejaculation or both. In order that it can be used as a ground for annulment, one must prove its existence at the time of the marriage, appears to be incurable and continues to cause the inability of copulate. Sterility, however, is not contemplated by the law, for even if a person is sterile, he can still perform acts of copulation. 

Case: Sarao v. Gueverra, G.R. No. 47603, 40 O.G. 263 (CA)

With regards to threat or intimidation, the law provides that it must be of such nature to prevent the party upon whom it is employed from acting as a free agent, his will being coerced by fear or compulsion (i.e that one of the parties executes a contract or performs an act against his will under pressure which  he can not resist.[Reyes vs. Zaballero])

Rules on voidable Marriages:

a.) Voidable marriages are valid until annulled. It is not the same as void ab initio or void from the beginning since these marriages are valid ab initio, but due to some grounds, like it can be subjected to annulment. They may suffer infirmities but it can be ratified.

b.) A marriage contracted between persons at ages 18 but below 21 without the consent of their parents or guardian is merely voidable. 

1.) If it is the party to the marriage who would file the action, it must be done by him/her within 5 years after attaining the age of 21.

2.) If it is the parent or guardian who should file it, then, it should be done at any time before the party reaches the age of 21 [Art. 47 Family Code].

These voidable marriages can be cured or cleansed of their defect by the act of the parties of freely cohabiting with one another, after the party whose parents or guardians who did not give consent to the marriage, reached the aged of 21.

In the case of insanity, the period to file action is different. The same spouse who had no knowledge of the of the other spouse’s insanity or the relative or guardian of the insane, must file the action to have the marriage annulled should be at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity [Art. 47 (2), Family Code)].

Also, with regard to paragraph 3 above, any of the following circumstances shall constitute fraud:

a.) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude.

b.) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband.

c.) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage.

d.) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

Article 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)

Article 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had no knowledge of the other’s insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45 by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;

(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the state to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In cases referred to in the preceding paragraph, no judgement shall be based upon a stipulation of facts or confession of judgement.

by: Rose Ann Villanueva 

Roque vs. Judge Encarnacion, et al.

L-6505. Aug. 23, 1954

Facts: 

        A wife brought an action for legal separation, but the husband, though admitting marriage with the wife, alleged as counterclaim that she had previously been married to another. In turn, the wife answered that she married her present husband because she erroneously thought that her first husband having been absent for 14 consecutive years, was already dead. The second husband moved for a summary judgment annulling the marriage. This motion was supported by a deposition made by the first husband.

Issue: 

       Can the counterclaim for annulment by the husband be decided in a summary proceeding?

Ruling: 

        No. First, because an action to annul marriage is neither an action to “recover upon a claim” nor “to obtain declaratory relief,” and secondly, because it is the avowed policy of the state to prohibit annulment of marriage by summary proceedings. The Rules of Court both old and revised expressly disallows such annulment without actual trial. The mere fact that no genuine issue was even really presented or that it was desired to expedite the resolution of the case, should not justify a misinterpretation of a rule adopted as the policy of the state. [ NOTE: In the Family Code, even if the marriage is void, a judicial declaration to that effect is still required. (See Art. 48).].

Romulo Tolentino v. Helen Villanueva, et al.

L-23264, Mar. 15, 1974

 Facts: 

           Petitioner sued to annul his marriage. His wife did not answer nor appear. So the Judge referred the matter to the city fiscal to determine whether or not a collusion exists. The petitioner refused to be interrogated by the fiscal, claiming that he did not want to reveal his evidence in advance. 

Issue:

            Can the Court properly dismiss the annulment suit?

Ruling:

             Yes, the Court can dismiss the suit for failure of the petitioner to cooperate, resulting in the failure of the fiscal to determine whether or not a collusion exists. The State is vitally interested in the preservation of the sacred institution of marriage. [ NOTE: The case of Macias v. Macias (410 SCRA 365 [2003]) is a reiteration of the Tolentino v. Villanueva case (supra). In the Macias case, the Supreme Court opined that “[w]here the defending party in an action for declaration of nullity of marriage fails to file his or her answer to the petition, the trial court should order the prosecution to intervene for the State by conducting an investigation to determine whether or not there was collision between the parties.’’]

Article 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n)

by: Aneleth Anjolyn Valencia 

Rules to be followed in actions for annulment or nullity of marriage.

Article 49 of the Family Code outlines the things that the Court shall do during the pendency of an action for annulment or declaration of nullity of marriage such as:

(1)        provide for the support of the children and the spouse;

(2)        provide for the custody of the common children;

(3)        give paramount consideration to the moral and material welfare of the children and their choice of the parent with whom they want to remain;

(4)        provide for appropriate visitation rights of the other parent.

Case:

Espiritu, et al. vs. CA, et al.

59 SCAD 631, 242 SCRA 362, March 15, 1995

Visitation Rights.

The law says that the court shall provide for appropriate visitation rights to the other parent. This is true where the custody of the children has been awarded to one of the parents. The parties may even agree on the visitation rights, but in case of disagreement, it is incumbent upon the court to provide for the same in the judgement annulling the marriage or declaring the marriage void.

Article 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

by: Aneleth Anjolyn Valencia 

     As set forth under Arts. 43(2-5) and 44, the effects of termination of a subsequent marriage shall apply to fi nal judgments annulling a voidable marriage or declaring the latter’s nullity.

Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n)

Article 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)

Article 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

Article 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.

Family Code of the Philippines

TITLE I

MARRIAGE

CHAPTER 1

REQUISITES OF MARRIAGE

Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this code.

(52a)

Article 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer. (53a)

by: Rose Ann Villanueva  

Legal Capacity

• Parties must have the necessary age (minimum age 18) or necessary consent of parents in certain cases
• There must be no legal impediment (prior existing marriage or certain relationships by affinity or consanguinity)
•  Consent is the permission for something to happen or agreement to do something
• Voidable if consent is vitiated by error, force, fraud and intimidation

In People v Santiago (51 Phil 68), the marriage between Santiago and his niece was declared void for lack of consent on the part of Santiago. He only got married to her to avoid prosecution because he raped her the same morning that the marriage was solemnized by a Protestant minister. The Supreme Court held that it was a mere ruse for him to escape criminal liability

Article 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a)

Article 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

  

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. 

        An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

by: Rose Ann Villanueva  

Examples of irregularities:

• presence of only one (1) witness
• lack of legal age of witnesses
• failure to comply with procedural requirements under Article 12
• non-observance of 3-month period under Article 15
• failure to comply with requirements

Marriage in jest - pretended marriage; no real intention of entering into the actual marriage status

Circumstances in Article 46 of the same Code that constitute fraud:

1. nondisclosure of a previous conviction involving moral turpitude;
2. concealment by the wife of a pregnancy by another man;
3. concealment of a sexually transmitted disease;
4. concealment of drug addiction, alcoholism, or homosexuality

ABSENCE, DEFECT, OR IRREGULARITY IN THE REQUISITES

1. ABSENCE of any of the essential or formal requisites shall render the marriage VOID AB INITIO, (FC Art 4, par. 1) except when it is solemnized by an unauthorized person with either or both contracting parties having good faith that he had authority to do so (FC Art 35, par. 2)
2. A DEFECT in any of the ESSENTIAL REQUISITES shall render the marriage VOIDABLE (FC Art 4, par. 2).
3. An IRREGULARITY in the FORMAL REQUISITES shall NOT AFFECT the validity of the marriage, but the party or parties responsible for the irregularity shall be civilly, criminally, and administratively liable (FC Art 4, par. 3).

Republic of the Philippines vs. Liberty D. Albios

G.R. No. 198780. October 16, 2013

Mendoza, J.

Facts:

            A petition for a review on the decision of the Court of Appeals on September 29, 2011 declaring the marriage of Daniel Lee Fringer and respondent Liberty Albios as void ab initio. The couple was married on October 22, 2004 and that said marriage was contracted for the sake of Albios obtaining an American citizenship and Fringer being paid $2,000.00. Albios filed with the RTC a petition for declaration of nullity of their marriage on December 6, 2006 stating that after said marriage, they never lived together as husband and wife and that there was no intention of complying with the essential marital obligations of the marriage.

RTC ruled marriage void ab initio. The CA affirmed the ruling of the RTC,

Issue:
           Whether or not the marriage was void ab initio.

Ruling:
           No. The marriage cannot be considered as void ab initio since it satisfies the essential requirements of marriage as provided in Article 2. Consent was freely given by both parties in as much as they were aware of the obligations and consequences of their legal actions. 

Article 5. Any male or female of the age of eighteen years (18) or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a)

by: Aneleth Anjolyn Valencia  

Rules on validity of marriage

• The marriage is valid if there is consent of the parents. Without the consent of the parents, the marriage would only be voidable. If it is without the consent of the parties, the marriage is void.
•  If the parties to a marriage are below the ages of eighteen (18), even with the consent of their parents, the marriage would still be void. This is because they lack the legal capacity to marry.
•  Note that the impediment referred to in Article 37 of the Family Code pertains to blood relationship between the contracting parties, whether legitimate or illegitimate.
•  If a grandfather marries a granddaughter, the marriage is void because it is incestuous. This is true even if the relationship is legitimate or illegitimate and no matter how far the relationship is. As long as the relationship is in the direct line, the marriage is void.
•  The impediments in Article 38 of the Family Code also make the marriage void by reason of public policy

Reason for invalidity if below 18 of age.

•  Extreme youth may not lend stability to the marriage and the family.
•  Marriages have failed, families have been broken because of extreme irresponsibility of the spouses due to age. So, the law requires some degree of maturity.

Illustration:

A and B, both 17 years of age, Filipino citizens, got married. The marriage is void because of lack of capacity to marry. This is true even if the marriage was celebrated abroad where the marriage was valid there as such. The reason is that, the capacity of Filipino citizens to marry is determined by Philippine law and not the law of the place where the marriage was celebrated. (See Art. 15, New Civil Code).

Suppose A in the problem above was 27 years old and B was only 17 years of age, the marriage would still be void because the law requires that both contracting parties must have legal capacity to contract marriage.

Gender Requirement

• The law requires that the parties to a marriage must be a male and a female. This reason is obvious, for two males or two females cannot reproduce. 
• It must be remembered that no less than the law itself says that marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. (Art. 1, Family Code).

Article 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.

          In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of the said party, which fact shall be attested by the solemnizing officer. (55a)

Article 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court’s jurisdiction;

(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer’s church or religious sect;

(3) Any ship captain or airplane chief only in the cases mentioned in Article 31;

(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or

(5) Any consul-general, consul or vice-consul in the case provided in Art. 10. 

by: Kristia Capio  

MEMBER OF THE JUDICIARY WITHIN THE COURT'S JURISDICTION

Judges can solemnize marriage only within their courts’ jurisdiction. Besides, they must be incumbent and not retired judges. The Court of Tax Appeals, Sandiganbayan, Court of Appeals and the Supreme Court jurisdiction are national in scope. Judges who are appointed to specific jurisdictions may solemnize in weddings only within said areas and not elsewhere.

PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT

For a priest, rabbi, imam, or minister of any church or religious sect to be able to validly solemnize a marriage, the following four essential requisites must concur: he or she 1) must be duly authorized by his or her church or religious sect; 2) must act within the limits of the written authority granted to him or her by the church or religious sect; 3) must be registered with the civil registrar general; and 4) at least one of the contracting parties whose marriage he or she is to solemnize belongs to his or her church or religious sect. The group wherein a priest belongs may grant him a written authority which imposes limitations as to the place where he could solemnize a marriage. For example, a priest who is ordered and allowed by his local ordinary to solemnize marriage is authorized to do so only within the area of the diocese or the place allowed by his Bishop.

SHIP CAPTAIN AND AIRPLANE CHIEF

For a ship captain or airplane chief to be able to validly solemnize a marriage, the following requisites must concur: 1) the marriage must be in articulo mortis (at least one of the parties is at the point of death); 2) the marriage must be between passengers or crew members; and 3) generally, the ship must be at sea or the plane must be in flight. For this reason, an assistant pilot has no authority to solemnize a marriage. The assistant pilot is not allowed to solemnize marriage like for example, if the airplane chief dies during the trip, the assistant pilot who is in command of the airplane cannot solemnize a marriage because there is no law permitting such assumption of authority for the purpose of solemnizing a marriage.

MILITARY COMMANDER

The military commander must be a commissioned officer which means that his rank should start from a second lieutenant, ensign and above (Webster Dictionary, 1991 edition).

The following conditions must concur for a military commander to be able to solemnize a marriage: 1) he or she must be a military commander of a unit; 2) he or she must be a commissioned officer; 3) a chaplain must be assigned to such unit; 4) the said chaplain must be absent at the time of the marriage; 5) the marriage must be one in articulo mortis; 6) the contracting parties, whether members of the armed forces or civilians, must be within the zone of military operation. If the chaplain is present, he must be the one who should solemnize the marriage. The chaplain’s authority to solemnize proceeds from Article 7(2). Henceforth, if the chaplain cannot conform with Article 7(2), then it is as if he is absent as he cannot solemnize a marriage, in which case, the military commander can solemnize the marriage.

CONSUL-GENERAL, CONSUL, OR VICE CONSUL

Heads of consular posts are divided into four classes, namely: 1) consul general; 2) consul; 3) vice-consul; 4) consul agents. Only the first three are expressly authorized by the Family Code to solemnize marriage. When the contracting parties are both Filipino citizens that's when they can only solemnize marriage abroad. They act not only as the solemnizer of a marriage but also perform the duties of the local civil registrar, such as the issuance of a marriage license. When the marriage, which in itself is a special type of contract, is to be solemnized by the consul-general, consul, or vice-consul abroad or, specifically in his place of assignment, the solemnities recognized by Philippine laws shall be observed in their accomplishment.

Example:

A is the consul-general of the Philippines to Japan. He has a residence in Santa Cruz, Laguna. While vacationing at Santa Cruz, he solemnizes the marriage of B and C. The marriage cannot be valid because A has no authority to solemnize marriages outside of the place where he holds office.

MAYOR

Under the Family Code, governors, mayors, and ambassadors are not authorized to perform marriages. But mayors of a cities or municipalities are now empowered to solemnize a marriage, any provision of law to the contrary in accordance to the Local Government Code which took effect on January 1, 1992. When the mayor is temporarily incapacitated to perform his duties for physical or legal reasons such as, but not limited to, leave of absence, travel abroad, and suspension from office, the vice mayor or the highest ranking Sangguniang Bayan member shall automatically exercise the powers and perform the duties of the local chief executive concerned, except the power to appoint, suspend, dismiss employees which can only be exercised if the period of temporary incapacity exceeds thirty days (Section 46 in relation to Section 445[4] of the 1991 Local Government Code). Appropriately, it has been held that the vice mayor of a municipality acting as Acting Mayor has the authority to solemnize marriages, because if the vice mayor undertakes the powers and duties of the office of the mayor it is irrelevant whether he is the Acting Mayor or just acting as mayor.

Example:

Vice Mayor Tristan Vito was the acting Mayor of Majayjay, Laguna when Mayor Jerome Javier went to Japan. As acting mayor, he can assume the powers of a mayor, as well as the authority to solemnize marriages. If both the Mayor and Vice-Mayor are abroad and Mrs. Liane Flores, the number one member of the Sangguniang Bayan is the acting Mayor, she can similarly solemnize marriages because she is also performing the duties and responsibilities of a mayor. The marriages are perfectly valid in all of these cases as the solemnizing officer is with authority to do so.

MARRIAGE CONTRACTED IN GOOD FAITH

Putative marriage, one where the solemnizing office has no authority but the lack of authority is not known to the parties. Under Article 35(2), if the marriage was solemnized by a person not legally authorized to solemnize a marriage and either of the contracting parties believed in good faith that such solemnizing officer had such authority, then the marriage shall be considered as valid.

Example:

X and Y, with capacity and no legal impediment to marry, with a marriage license go to the City Hall of Calamba. They are really looking for someone to solemnize their marriage. Then, an unknown person approaches them and they are brought to a room to solemnized their marriage where Z introduces himself as a judge. They do not know the person but they were made to believe that he is a judge, but the truth is, he is not a judge and they depend on upon such representation.

CASE

RODOLFO NAVARRO VS. JUDGE HERNANDO DOMAGTOY

A.M. No. MTJ-96-1088. July 19, 199

ROMERO, J

Facts:

Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro filed a complaint on acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy on the grounds of gross misconduct, inefficiency in office and ignorance of the law. 

Navarro alleged that the judge performed a marriage ceremony between Floriano Dador Sumaylo and Gemma del Rosario outside his court's jurisdiction on October 27, 1994. The judge has jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at the respondent judge's residence in the municipality of Dapa, which does not fall within his jurisdictional area of the municipalities of Sta. Monica and Burgos. 

The respondent judge contended that in solemnizing the marriage between Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code which states that: "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction; and that Article 8 applies which is a directory provision, refers to the venue of the marriage ceremony and does not qualify the authority of the solemnizing officer. 

Issue:

Whether or not the solemnization of the marriage of Sumaylo and Del Rosario was within the respondent’s court’s jurisdiction.

Ruling:

No. The solemnization of the marriage of Sumaylo and Del Rosario was not within the respondent's court's jurisdiction. As provided in Article 7 of the Family Code "Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the court's jurisdiction" not allowing respondent judge to solemnize a marriage in the municipality of Dapa, Surigao del Norte since his jurisdiction only covers the municipalities of Sta. Monica and Burgos. Respondent judge argued Article 8 of the Family Code which states that “The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect." There is no evidence that either Sumaylo or Del Rosario was at the point of death or in a remote place.

In the case at bar, the solemnization of the marriage of Sumaylo and Del Rosario was outside the respondent’s court’s jurisdiction.

Article 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect.

by: Janine May Gumangol  

          The law requires a public ceremony of the marriage to ensure that if no one knows of a legal obstacle to the marriage, he/she should manifest it to the solemnizing officer during the celebration. If there is one who manifests such legal obstacle, the solemnizing officer would stop the ceremony.

    A marriage ceremony may be solemnized elsewhere if there is a written request in a sworn statement.

Example

      The parties requested that a marriage ceremony be solemnized at a function room of a certain hotel, then, it can be solemnized therein.

Consideration

       Even if there is no written request or sworn statement, still the marriage is valid as such is not an essential one. Moreover, the total absence of the same does not affect the validity of marriage, as it is a mere condition in one of the formal requisites of marriage which does not indicate the same.

Example

      Ben and Maria's marriage were solemnized by the town mayor without any request, the marriage is valid provided that all the essential requisites are present.

Article 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a)

Article 10. Marriage between Filipino Citizens abroad may be solemnized by a consul- general, consul or vice-consul of the Republic of the Philippines. The Issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a)

by: Richard Ramos 

From reading of the law, the consul- general, consul, or vice-consul acts as local civil registrar for Filipinos abroad. This is so because the issuance of the marriage license to the Filipinos abroad is done by him. He also solemnizes marriage between Filipino citizens abroad.

If the marriage is solemnized by a consul or vice-consul, there is no need for the contracting parties, who are Filipinos, to secure a certificate of legal capacity to marry. The requirement however lies if the marriage is to be solemnized by another person other than the consul or vice consul or consul-general.

The rules applies only if the marriage is solemnized by a consul and the parties are citizens of the Philippines.

Article 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following: 

(1.) Full name of the contracting party;

(2.) Place of birth;

(3.) Age and date of birth;

(4.) Civil status;

(5.) If previously married, how, when and where the previous marriage was dissolved or annulled;

(6.) Present residence and citizenship;

(7.) Degree of relationship of the contracting parties;

(8.) Full name, residence and citizenship of the father;

(9.) Full name, residence and citizenship of the mother; and

(10.) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a)

by: Evita Teope

This article provides the data that must be included in the application for the marriage license. 

Article 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. 

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a)  

by: Evita Teope

This Article sets forth the rules by which the civil registrar shall determine whether the parties have required age for marriage.  

Article 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a)

by: Evita Teope

Article 13 is a substitute for Article 12. This is when either party had been previously married in which case the applicant or applicants, if both parties had been previously married,  shall present in lieu of birth or baptismal certificate, the enumerated listing in Art.13.  

The law simply enumerates the contents of an application for a marriage license. Specifically the age and civil status of the applicants. If the applicant is not of legal age as required by the law, or if there is any legal impediment as shown by the application, the Local Civil Registrar would still issue the license, but a notation of the same. A legal impediment is an obstacle to valid marriage, determined by civil authority.

 It also requires that if there was a previous marriage that has been annulled or nullified, the party or applicant concerned must attach it to the application in order to prove his capacity to contract marriage. Both parties' capacity to marry is an essential requisite of marriage, the absence of which renders the marriage null and void. 

It also provides that if either of the parties was previously married but the spouse is already dead, then the law allows the applicant concerned to execute an affidavit setting forth his or her actual civil status and the name and the date of death of the deceased spouse.

Article 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications. (61a)  

by: Evita Teope

Without the required CONSENT, the marriage is VOIDABLE. 

Therefore, the parties to the marriage who are between ages 18 and 21 must secure parental consent. Otherwise it is voidable. (Art. 25 [1] Family Code). 

A parental consent shall be manifested:

1. In writing by the person concerned who personally appears before the Local Civil Registrar; or
2. In the form of an affidavit made in the presence of two (2) witnesses and attested before any official authorized to administer oaths.

So if X and Y got married without the consent of their parents, is their marriage deemed to be invalid under the law?

No. Even if the parties failed to obtain their parents’ or guardian’s consent, their marriage is still considered as valid subject to the right of their parents or guardians to file for the annulment of their marriage within five (5) years from the celebration of the marriage. (Article 47 of the Family Code of the Philippines)

Non-compliance with the requirement of parental consent does not make the marriage invalid or void but merely voidable, which means that the marriage is valid until annulled.

As   As result, a petition for the annulment of the marriage may be filed by the parents, guardian or person having substitute parental authority over the party seeking the annulment, in that order, unless after attaining the age of majority, such party freely cohabited with the other and both lived together as husband and wife.

Article 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. 

by: Janine Gumangol

Article 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach said certificates of marriage counseling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the marriage.

Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. (n)

by: Rose Ann Villanueva

Article 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

by: Aneleth Valencia 

     This notice is one of the modes by which the State interferes in the marriage to prevent violations of the marriage law. It is noted, however, that if the local civil registrar does not publish the application and still, he issues the license, the marriage is still valid, because after all, publicity is not an essential requisite of marriage. The said public officer may, however, be held criminally or administratively liable.

Article 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a bond required for the issuance of the order. (64a)

Article 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar. (65a)

Article 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued.

by: Kristia Capio 

LIFE OF A MARRIAGE LICENSE

The marriage license is valid only within the Philippines and not abroad. Under this Rule, the life of a marriage license subsists for 120 days from date of issue and with the expiry date stamped in bold character on the face of every license. The date of the signing of the local civil registrar of the marriage license is the date of the issue. From the date of issue, it should be claimed by the parties. If it is not claimed and therefore not used within 120 days, it shall automatically become ineffective.

EXAMPLE

The law allows the use of the marriage license anywhere in the Philippines.

A and B  obtained a marriage license in Laguna it can be used in Palawan provided that the 120 day period has not yet lapsed.

CASE

REINEL ANTHONY B. DE CASTRO vs ANNABELLE ASSIDAO-DE CASTRO

G.R. No. 160172. February 13, 2008

TINGA, J.

Facts:

Reinel and Annabelle met and became sweethearts in 1991. In September 1994 they planned to get married, so they applied for a marriage license with the Office of the Civil Registrar of Pasig City. They had their first sexual relation sometime in October 1994. When the couple went back to the Office of the Civil Registrar, the marriage license had already expired. Consequently, in order to push through with the plan, they executed an affidavit dated March 13, 1995 stating that they had been living together as husband and wife for at least five years. The couple got married on the same date, solemnized by Judge Jose C. Bernabe, presiding judge of the Metropolitan Trial Court of Pasig City. However, after the ceremony, petitioner and respondent went back to their respective homes and did not live together as husband and wife.

Annabelle gave birth to a child named Reinna Tricia A. De Castro on November 12, 1995. Since the child’s birth, respondent has been the one supporting her out of her income as a government dentist and from her private practice.

Respondent filed a complaint for support against petitioner before the Regional Trial Court of Pasig City. In her complaint, respondent argued that she is married to Reinel who has "reneged on his responsibility/obligation to financially support her "as his wife and Reinna Tricia as his child."

Petitioner denied that he is married to respondent, claiming that their marriage is void ab initio since the marriage was facilitated by a fake affidavit; and that he was just persuaded by the respondent to sign the marriage contract to save her from embarrassment and possible administrative prosecution due to her pregnant state; and that he was not able to get parental advice from his parents before he got married. He also explained that they never lived together as husband and wife and that he has never seen nor acknowledged the child.

In its decision, the trial court ruled that the marriage between petitioner and respondent is not valid because it was solemnized without a marriage license. However, it declared petitioner as the natural father of the child, and thus obliged to give her support.

Issue:

Whether or not the marriage is valid.

Ruling:

No, the marriage between the respondent and the petitioner is not valid. The false affidavit which petitioner and respondent executed so they could push through with the marriage has no value; it is a mere scrap of paper.  They were not exempt from the marriage license requirement. Their failure to obtain and present a marriage license renders their marriage void ab initio.

Article 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.

    Stateless persons or refugees from other countries shall in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage.

by: Janine Gumangol 

The reason for the rule is that the capacity of foreigners to marry is determined by their personal law or national law.

The certificate will ensure that the foreigner is capacitated to marry.

Exception

 1. Immoral

     Bigamous, or

     Polygamous marriages

2. Immorally considered incestuous (closely related) marriages

        a. between ascendants and descendants of any degree, legitimate or illegitimate,

      b. Collateral line (related indirectly), between brothers and sisters of the full or half-blooded, whether the relationship be legitimate or illegitimate

Condition

     1. Absence of certificate of legal capacity is not one of the requirements of a valid marriage, but a mere added requirement before a marriage license is issued. Meaning, without such certificate, the marriage is still valid.

     2. If it turns out that the foreigner is not really capacitated, the marriage is not valid because of lack of capacity.

     3. If a foreigner is a refugee or a stateless person, then a mere affidavit stating the circumstance of his legal capacity would be sufficient.

Reason

     No diplomatic or insular official would issue such certificate.

Article 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state:

(1) The full name, sex and age of each contracting party;

(2) Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage;

(4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title;

(5) That either or both of the contracting parties have secured parental consent in appropriate cases;

(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and

(7) That the parties have entered into a marriage settlement if any, attaching a copy thereof. (67a)

Article 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a)

Article 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n)

Article 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n)

Article 26. all marriages solemnized outside the Philippines in accordance with the laws in force in the country where they solemnized, and valid there as such, shall also valid in this country except those prohibited under articles 35(1), (4), (5) and (6), 36, 37 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to marry, the Filipino spouse shall have the capacity to remarry under Philippine law. ( As amended by E. O. No. 227).

by: Richard Ramos

Rules on foreign marriage of Filipinos

   If a marriage is celebrated between Filipino citizen in a foreign country and valid there as such, generally, it is valid in the Philippines. There are however, exceptions to the rules as cited in Articles 35(1, 4, 5, and 6), 36, 37, and 38 of the Family Code. The cross-reference simply means that, if for example the marriage between the Filipino abroad is bigamous the same is void even if valid where it was celebrated because what determines their legal capacity is Philippine law.

   The second paragraph of Article 26 of the Family Code has cured the injustice under the old principles in the Civil Code for, while before, if a Filipina married a foreigner and the latter obtained a decree of divorce in his own country, the Filipina was still considered married because Article 15 of the Civil Code mandated that she was still married since the law that governed her legal capacity and status was the Philippine law. But such injustice has been cured where the law now allows her to remarry.

Strict application to the rule 26.

   The rule as contemplated by the framers of the Family Code is that, the marriage must be a mixed marriage, between a foreigner and a Filipino in order that Article 26, paragraph 2 may apply and that it must have been mixed from the very beginning. If it was mixed after its celebration, the law does not apply. It must be noted that despite such intention of the framers of the Family Code, the Supreme Court ruled otherwise in Republic v. Orbecido III, October 5, 2005 which will discussed elsewhere. It is also a requirement that it must have been the foreigner who obtained a divorce decree. If it is the Filipino who obtained the divorce decree, the law does not apply.

Reason behind Article 26 (20 of the Family Code

   Article 26, of the Family Code confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. The second paragraph of Article 26 of the Family Code provides that “ ( W)here a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine Law.”

  The second paragraph of Article 26 of the Family code only authorizes the Philippine courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce.

Unfair situation in Civil Code remedied.

   There was an unfair situation in our law under the Civil Code which the Family Code sought to remedy and which was remedied in Van Dorn v. Romillo and Pilapil v. Ibay- Somera.

Illustration:

  X, a Filipina married to Y, a foreigner, the foreigner left her and divorce her in his country, capacitating him to marry again under his national law. Under the old law, whether it was mixed marriage or not, the Filipino spouse was not capacitated to remarry in case he/she was divorce by the foreign spouse. This is due to the strict rule in Article 15 of the Civil Code and the principle that a divorce obtained abroad was contrary to morals. This has left the Filipino in unfair situation, for while the former spouse could remarry, yet he/she could not. So, the Supreme Court in Van Dorn and Pilapil gave recognition to the effects of foreign divorces. The Family Code followed the conditions that; (1) the marriage must be originally a mixed marriage; ( 2) the divorce must be obtained by the foreigner capacitating him/her to remarry under his/her national law. So that if the foreigner obtain the divorce, the Filipino is likewise capacitated to remarry. But let us say the parties were originally Filipinos, but after a few years one of them became American citizen and thereafter, he would obtained divorce decree capacitating him to remarry, the Filipina cannot remarry under Philippine laws because the marriage was not originally a mixed marriage.

Doctrine of Lex Loci  celebrationis.

  X, and Y, both Filipino citizens went to Hong Kong. They got married there before a lawyer. Under Hong Kong laws the marriage is valid. Is it also valid in the Philippines?

Yes, by way of implication from the provision of Articles 26 and 35(2 and 3), Family Code. If the marriage is valid where it was celebrated, it shall also valid in the Philippines. Authority to solemnizes is only a formal requirement that if valid where it was celebrated, it is valid in the Philippines in view of the doctrine of lex loci celebracionis.

CHAPTER 2

MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT

Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) Evita D Teope

In a marriage in Articulo Mortis or at the point of death, as provided in this Article, there is no need for a marriage license; but if the party at the point of death survives, the marriage would still be valid.

Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (72a)  Evita D Teope

Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. (72a)

Thus, there must be no legal impediment to marry one another.

Art. 30. The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage. (75a)

Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call. (74a)

Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (74a) Evita D Teope

This Article asserts that the marriage must be in the zone of military operation, such that the military commander has the authority to solemnize it. Otherwise, the military commander may not have the authority to solemnize the marriage.

Illustration:

XY, a soldier who was injured in the area of operation, for instance, in Marawi, was airlifted to Manila where he was confined at Philippine General Hospital. While at the emergency room, he was at the point of death. Can his military commander solemnize the marriage with his Y?

NO.  The marriage must be solemnized at the zone of military operation. The commander does not have authority outside of it. Marriage is void for lack of marriage license unless solemnized by the mayor of the City of Manila. (Art.27 FC)

Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a) Evita D Teope

Jean and Julius, both belonging to the Kankanaey ethnolinguistic group and are residents of Laguna, had their marriage solemnized by judge Prince in San Pablo City in accordance with the Christian rites and practices. Is there a need for a marriage license? YES. Otherwise, it is void.

     

     The condition of the validity of such marriage without a license is (1.) that the ceremony is in accordance with their customs, rites or practices, and (2.) that the marriage as an inviolable social institution shall be protected. Marriages performed in accordance with customary laws, rites, traditions, and practices shall be recognized as valid. As proof of marriage, the testimony of authorized community elders or authorities of traditional sociopolitical structures shall be recognized as evidence of marriage for purposes of registration. (Section 8, RA No. 8371, “The Indigenous Peoples’ Rights Act of 1997.”

Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths.  

The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties are found no legal impediment to the marriage. (76a) Evita D Teope

Arch and Curvy, both without any legal impediment to marry one another having been living together and exclusively with each other as husband and wife for 6 years. In lieu of the license, an affidavit stating that they have been living together for more than 5 years and without any legal impediment to marry one another. A legal impediment is an obstacle to valid marriage, determined by civil authority.

But suppose Curvy was 16 years of age when they started living together and they decided to get married, would marriage license be required?

YES. They are not exempted from the requirement because of an impediment to marry one another. 

Why is there no license is required? rationale.

a.) To avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license.

b.) To preserve privacy.

Why 5 years?

The five-year common-law cohabitation should be a period of the legal union had it not been for the absence of the marriage.

The 5-year period should be the years immediately before the day of marriage and it should be cohabitation characterized by (1.) exclusivity which means that no third party was involved at any time within 5 years and (2.) continuity, meaning, unbroken.

 That the parties capacitated to marry each other.

REQUISITES FOR LEGAL RATIFICATION OF COHABITATION:

1. The man and woman must have been living together as husband and wife for at least five years before the marriage.

2. The parties must have no legal impediment to marry each other;

3. The fact of absence of legal impediment between the parties must be present  at   the time of marriage;

4. The parties must execute an affidavit stating that they have lived together for five years;

5. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. (Borja-Manzano v. Judge   Sanchez, A.M. No. MTJ-00-1329, March 8, 2001, 354 SCRA1)

References:

sc.judiciary.gov.ph

Family Code of the Phils. by Albano, et al.

CHAPTER 3

VOID AND VOIDABLE MARRIAGES

Article 35. The following marriages shall be void from the beginning:

(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

(3) Those solemnized without a license, except those covered by the preceding chapter;

(4) Those bigamous or polygamous marriages not falling under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other;

(6) Those subsequent marriages that are void under Article 53.

Article 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by E.O. No. 227, dated July 17, 1987).

Article 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate:

(1) Between ascendants and descendants of any degree; and

(2) Between brothers and sisters, whether of the full or half blood. (81a) 

by: Rose Ann Villanueva 

Incestuous. involving sexual intercourse between closely related people

Reasons for Prohibition:

1. grossly indecent
2. immoral, and inimical to the purity and happiness of the family and the welfare of future generations
3. creates problem of social placement because status is confused
4. very often result in deficient and degenerate offspring 

Examples of incest

1. Charles Darwin and Emma Wedgwood had ten children, three died at an early age. Of the seven left, three were infertile.

2. Tutankhamun and his half-sister Ankhesenamun

A virtual autopsy, using more than 2,000 scans of Tutankhamun’s mummy, reveal a more accurate image of the 19-year-old’s body.

Article 38. 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 stepchildren;

(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. (82a)

by: Aneleth Anjolyn Valencia 

     The law speaks of void marriages by reason of public policy, as public policy frowns upon those who are closely related by blood or artificial relationship from marrying each other.

Let me give one example in regards with provision number 2 which states "between step-parents and stepchildren": 

Question: 

A woman with a child G got married to a man with a child, B. May G and B get validly married to each other?

ANSWER: Yes, because although they are considered as stepbrother and stepsister of each other, still such a marriage, while prohibited under the Civil Code, is now allowed under the Family Code.

Article 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by R.A. No. 8533).

Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

by: Kristia Capio

JUDICIAL DECLARATION OF NULLITY

It does not follow that if a marriage is void, the spouses can just remarry. If a marriage between two contracting parties is void ab initio, any one of them cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage.

The Clause “On the Basis Solely of a Final Judgment Declaring Such Marriage Void’’ 

The clause “on the basis solely of a final judgment declaring such marriage void’’ in Art. 40 of the Code denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage.

Article 40 means that final judgment declaring the previous marriage void need not be obtained only for purpose of remarriage. Certainly, one can consider of other instances where a party might well petition the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the spouses, as well as an action for the custody and support of their common children.

NECESSITY OF JUDICIAL DECLARATION OF NULLITY OF MARRIAGE

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Meaning, where the absolute nullity of a previous marriage is required to be invoked for the purpose of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void.

The reason behind the rule that even if the marriage is void, there is a need to have it declared void is because of the fact that the parties to the marriage cannot decide for themselves the invalidity of their marriage. This is especially so that no less than the Constitution seeks to preserve the sanctity of the marriage, it being the foundation of the family.

EXAMPLE

A and B’s marriage are void ab initio believing that their marriage are void B marry C. B’s marriage to C is also void because it does not follow that if a marriage is void, the spouses can just remarry. If a marriage between two contracting parties is void ab initio, any one of them cannot contract a subsequent valid marriage without a previous judicial declaration of nullity of the previous void marriage.

CASE

DOROTHY B. TERRE vs. ATTY. JORDAN TERRE

A.M. No. 2349 July 3, 1992

PER CURIAM, J.:

Facts:

Dorothy Terre first met Jordan Terre when they were 4th year high school classmates in Cadiz City High School. She was then married to Merlito Bercinilla. Jordan courted her and this continued when they moved to Manila to pursue their studies. Jordan, a freshman law student, told Dorothy that her marriage with Bercenilla was void ab initio because they are first cousins. Believing and with the consent of her mother and ex-in-laws, she married Jordan on June 14, 1977. Jordan wrote “single” as Dorothy’s civil status despite the latter’s protests. Jordan said it didn’t matter because marriage was void. After their marriage, Dorothy supported Jordan because he was still studying. They had a son, Jason; however, after she gave birth, Jordan disappeared. She learned that he married Helina Malicdem. Dorothy filed charges for abandonment of minor, bigamy and grossly immoral conduct. Jordan was already member of the Bar.

Jordan claimed that he was unaware of Dorothy’s first marriage and that she sent her out of the house when he confronted her about it. He contacted the second marriage, believing that his marriage to Dorothy was void and ab initio because of her prior subsisting marriage.

Issue:

Whether or not a judicial declaration of nullity is needed to enter into a subsequent marriage.

Ruling:

Yes, a judicial declaration of nullity is needed to enter into a subsequent marriage. The court considered the claim of Jordan Terre as spurious defense. In the first place, respondent has not rebutted complainant’s evidence as to the basic fact which underscores that former was in bad faith. In the second place, the pretended defense is the same argument by which he inveigled complainant into believing that the complainant’s prior marriage on Merlito Bercenilla being incestuous and void ab initio, she was free to contract a second marriage with the respondent. Applying Article 40 of the Family Code “the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void” for purpose of determining whether a person is legally free to contact a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential. Since respondent Jordan Terre is a lawyer he is bound to know about the aforementioned argument ran counter to the prevailing case law of the Supreme Court.

In this case, before entering to a subsequent marriage, judicial declaration of nullity must be obtain in accordance with Article 40 of the Family Code.

Article 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

       For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. 

by: Janina Gumangol 

Valid marriage under Article 41

Fundamental Requirements to Validate the Subsequent Marriage

1. The absent spouse must have been absent for four or two years under the circumstances provided by law;

2. The present spouse must not know the whereabouts of the absent spouse;

3. There must be a well-founded belief that the absent spouse is already dead;

4. There must be institution of a summary action for the declaration of presumptive death of the absent spouse;

5. There must be a final judgment declaring the absent spouse presumptively dead.

Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

     A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

by: Janina Gumangol 

Valid Bigamous Marriage

            Bigamous Marriage may be valid when a spouse has been absent for four consecutive years and the spouse had a well-founded belief that the absent spouse is already dead.

            The aforesaid four years (New Civil Code)  has been reduced to two years (Family Code) if the disappearance of the absent spouse, there is danger under the circumstances in Article 391 of the Civil Code.

It does not mean that mere absence of the spouse gives right to the present spouse to marry again.

Essential Requisites of the declaration of presumptive death of an absent spouse

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

Effect of declaration presumptive marriage

The first marriage is not terminated or dissolved except if annulled or void.

The termination of the second marriage would have no effect if the reappearance of the absent spouse is not proven.

The second marriage would be terminated if the absent spouse appears physically even without the registration of affidavit of appearance.

*Prior for filing an action for declaration of presumptive death of the absent spouse, it is required that the present spouse must actively exert serious efforts to locate the absent spouse, not mere superficial, passive efforts.

Instances of Presumptive Death under Article 391 of the New Civil Code

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard  of four years since the loss of the vessel or airplane;

2. A person in the armed forces who has taken part in war, and has been missing for four years; and

3. A person who has been in danger of death under other circumstances and his existence has not been known for four years.

Reasons of the presumption of death before subsequent marriage is obtained

Benefit of the present spouse

            Protection from the pains and consequences of a second marriage (charge and conviction of bigamy if defense of good faith based on mere testimony is found incredible)

Benefit of the State

            The State shall protect and strengthen the family as a basic autonomous social institution under Article 2, Section 12 of the Philippine Constitution. It seeks to preserve marriage.

Remedy against fraudulent declaration of presumptive death

If one of the spouses obtained a judgment declaring the spouse presumptively dead, when in fact, she was never absent, thus the judgment was fraudulently obtained. The appropriate remedy is to file an action for annulment of judgment.

Sample Case (Effect of Declaration of Presumptive Marriage)

Republic of the Philippines vs. Nolasco

FACTS:

     Nolasco, a seaman, married with Janet Monica Parker in January 1982.

After the marriage celebration, he got another employment contract and left the province. In January 1983, Nolasco received a letter from his mother that 15 days after Janet gave birth to their son, she left. He cut short his contract  to find Janet. He returned home in November 1983.

     He did so by securing another contract which England is one of its port calls. He wrote several letters to the bar where he and Janet first met, but all were returned to him. He claimed that he inquired from his friends but they too had no news about Janet. In 1988, Nolasco filed before the RTC of Antique a petition for the declaration of presumptive death of his wife Janet.

     RTC granted the petition. The Republic through the Solicitor-General, appealed to the CA, contending that the trial court erred in declaring Janet presumptively dead because Nolasco had failed to show that there existed a well-founded belief for such declaration. CA affirmed the trial court's decision.

 ISSUE:

          Whether or not Nolasco has a well-founded belief that his wife is already dead.

RULING:

             No. Nolasco failed to prove that he had complied with the third requirement under the Article 41 of the Family Code, the existence of a "well-founded belief" that Janet is already dead.

            Under Article 41, the time required for the presumption to arise has been shortened to 4 years; however, there is a need for judicial declaration of presumptive death to enable the spouse present to marry. However,   Article 41 imposes a stricter standard before declaring presumptive death of one spouse. It requires a "well-founded belief" that the absentee is already dead before a petition for declaration of presumptive death can be granted.

         In the case at bar, the Court found Nolasco's alleged attempt to ascertain about Janet's whereabouts too sketchy to form the basis of a reasonable or well-founded belief that she was already dead. Nolasco, after returning from his employment, instead of seeking help of local authorities or of the British Embassy, secured another contract to London. Janet's alleged refusal to give any information about her was too convenient an excuse to justify his failure to locate her. He did not explain why he took him 9 months to finally reached San Jose after he asked leave from his captain. He refused to identify his friends whom he inquired from. When the Court asked Nolasco about the returned letters, he said he had lost them. Moreover, while he was in London, he did not even dare to solicit help of authorities to find his wife.

         The circumstances of Janet's departure and Nolasco's subsequent behavior make it very difficult to regard the claimed belief that Janet was dead a well-founded one.

Article 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n)

Article 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary disposition made by one in favor of the other are revoked by operation of law. (n)

by: Rirchard Ramos 

The law makes reference to the subsequent marriage after the declaration of presumptive death of the absent spouse. If the present spouse knew the whereabouts of the absent spouse, yet he/she filed an action for the declaration of presumptive death of said spouse, then, he or she is in bad faith.

If the other spouse in the subsequent marriage connived with the present spouse, then the said person is in bad faith. The net effect is that the subsequent marriage is void.

The law imposes certain sanction on them, that all donations, as well as testamentary disposition made by one in favor of the other, are revoked by operation of law. There is not even a need to perform a positive act of revocation.The law itself revokes the same, with the net effect of these donations being rendered void and the properties being reverted to the former owner.

Article 45: A marriage may be annulled for any of the following causes, existing at the time of marriage. 

1.) That the party on whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardians or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;

2.) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;

3.) That the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

4.) That the consent of either party by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife.

5.) That either party was physically incapable of consummating that the marriage with the other, and as such incapacity continues and appears to be incurable; or

6.) That either party was afflicted with a sexually-transmissible disease (STD) found to be serious and appears to be incurable.

by: Evita Teope

Annulment is a court proceeding with the objective severing marital relations between husband and wife. A petition for an annulment of a marriage is filed when the marriage is considered voidable or if it is valid but is susceptible of being voided pursuant to the grounds provided by the law.

A petition for annulment of marriage in the Philippines can be therefore be filed on the following grounds as provided under this article and in order that the case may prosper, the party alleging the existence of the grounds mentioned earlier must be proved:

1. Lack of parental consent

2. Insanity

3. Consent is obtained thru fraud

4. Consent is obtained thru force, intimidation, and undue influence

5. Impotence

6. STDs

Paragraph 3 of the Article refers to impotency. Impotency is the incapability of procreation. In here, the incapability must continue to be so and appears to be incurable. Impotence is a common problem among men and is characterized by the consistent inability to sustain an erection sufficient for sexual intercourse or the inability to achieve ejaculation or both. In order that it can be used as a ground for annulment, one must prove its existence at the time of the marriage, appears to be incurable and continues to cause the inability of copulate. Sterility, however, is not contemplated by the law, for even if a person is sterile, he can still perform acts of copulation. 

Case: Sarao v. Gueverra, G.R. No. 47603, 40 O.G. 263 (CA)

With regards to threat or intimidation, the law provides that it must be of such nature to prevent the party upon whom it is employed from acting as a free agent, his will being coerced by fear or compulsion (i.e that one of the parties executes a contract or performs an act against his will under pressure which  he can not resist.[Reyes vs. Zaballero])

Rules on voidable Marriages:

a.) Voidable marriages are valid until annulled. It is not the same as void ab initio or void from the beginning since these marriages are valid ab initio, but due to some grounds, like it can be subjected to annulment. They may suffer infirmities but it can be ratified.

b.) A marriage contracted between persons at ages 18 but below 21 without the consent of their parents or guardian is merely voidable. 

1.) If it is the party to the marriage who would file the action, it must be done by him/her within 5 years after attaining the age of 21.

2.) If it is the parent or guardian who should file it, then, it should be done at any time before the party reaches the age of 21 [Art. 47 Family Code].

These voidable marriages can be cured or cleansed of their defect by the act of the parties of freely cohabiting with one another, after the party whose parents or guardians who did not give consent to the marriage, reached the aged of 21.

In the case of insanity, the period to file action is different. The same spouse who had no knowledge of the of the other spouse’s insanity or the relative or guardian of the insane, must file the action to have the marriage annulled should be at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity [Art. 47 (2), Family Code)].

Also, with regard to paragraph 3 above, any of the following circumstances shall constitute fraud:

a.) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude.

b.) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband.

c.) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage.

d.) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage.

Article 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:

(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;

(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband;

(3) Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage; or

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a)

Article 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated herein:

(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-one; or by the parent or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had no knowledge of the other’s insanity; or by any relative or guardian or person having legal charge of the insane, at any time before the death of either party, or by the insane spouse during a lucid interval or after regaining sanity;

(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud;

(4) For causes mentioned in number 4 of Article 45 by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased;

(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage. (87a)

Article 48. In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the state to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

In cases referred to in the preceding paragraph, no judgement shall be based upon a stipulation of facts or confession of judgement.

by: Rose Ann Villanueva 

Roque vs. Judge Encarnacion, et al.

L-6505. Aug. 23, 1954

Facts: 

        A wife brought an action for legal separation, but the husband, though admitting marriage with the wife, alleged as counterclaim that she had previously been married to another. In turn, the wife answered that she married her present husband because she erroneously thought that her first husband having been absent for 14 consecutive years, was already dead. The second husband moved for a summary judgment annulling the marriage. This motion was supported by a deposition made by the first husband.

Issue: 

       Can the counterclaim for annulment by the husband be decided in a summary proceeding?

Ruling: 

        No. First, because an action to annul marriage is neither an action to “recover upon a claim” nor “to obtain declaratory relief,” and secondly, because it is the avowed policy of the state to prohibit annulment of marriage by summary proceedings. The Rules of Court both old and revised expressly disallows such annulment without actual trial. The mere fact that no genuine issue was even really presented or that it was desired to expedite the resolution of the case, should not justify a misinterpretation of a rule adopted as the policy of the state. [ NOTE: In the Family Code, even if the marriage is void, a judicial declaration to that effect is still required. (See Art. 48).].

Romulo Tolentino v. Helen Villanueva, et al.

L-23264, Mar. 15, 1974

 Facts: 

           Petitioner sued to annul his marriage. His wife did not answer nor appear. So the Judge referred the matter to the city fiscal to determine whether or not a collusion exists. The petitioner refused to be interrogated by the fiscal, claiming that he did not want to reveal his evidence in advance. 

Issue:

            Can the Court properly dismiss the annulment suit?

Ruling:

             Yes, the Court can dismiss the suit for failure of the petitioner to cooperate, resulting in the failure of the fiscal to determine whether or not a collusion exists. The State is vitally interested in the preservation of the sacred institution of marriage. [ NOTE: The case of Macias v. Macias (410 SCRA 365 [2003]) is a reiteration of the Tolentino v. Villanueva case (supra). In the Macias case, the Supreme Court opined that “[w]here the defending party in an action for declaration of nullity of marriage fails to file his or her answer to the petition, the trial court should order the prosecution to intervene for the State by conducting an investigation to determine whether or not there was collision between the parties.’’]

Article 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the Court shall provide for the support of the spouses and the custody and support of their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n)

by: Aneleth Anjolyn Valencia 

Rules to be followed in actions for annulment or nullity of marriage.

Article 49 of the Family Code outlines the things that the Court shall do during the pendency of an action for annulment or declaration of nullity of marriage such as:

(1)        provide for the support of the children and the spouse;

(2)        provide for the custody of the common children;

(3)        give paramount consideration to the moral and material welfare of the children and their choice of the parent with whom they want to remain;

(4)        provide for appropriate visitation rights of the other parent.

Case:

Espiritu, et al. vs. CA, et al.

59 SCAD 631, 242 SCRA 362, March 15, 1995

Visitation Rights.

The law says that the court shall provide for appropriate visitation rights to the other parent. This is true where the custody of the children has been awarded to one of the parents. The parties may even agree on the visitation rights, but in case of disagreement, it is incumbent upon the court to provide for the same in the judgement annulling the marriage or declaring the marriage void.

Article 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45.

The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.

All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation.

In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129.

by: Aneleth Anjolyn Valencia 

     As set forth under Arts. 43(2-5) and 44, the effects of termination of a subsequent marriage shall apply to fi nal judgments annulling a voidable marriage or declaring the latter’s nullity.

Article 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matters.

The children or their guardian or the trustee of their property may ask for the enforcement of the judgment.

The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon the death of either of both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on their legitime. (n)

Article 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n)

Article 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void.

Article 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.