A Reaction to Article 26 of the

Family Code of the Philippines

Marriage as defined by the Family Code of the Philippines, in Article 1
states that it is a special contract of permanent union between a man and a woman
in accordance with law for the establishment of conjugal and family life. As such,
it is the duty and concern of the State to protect and enforce it whenever it is
deemed just or unjust, as the case may be. Marriages may be solemnized within
the Philippines or even outside of the country, and that is what Article 26,
paragraph 1 of the Family Code attempts to discuss and make clear of. Also, a
marriage may be between a male and a female (at least here in the Philippines
currently), and obviously it may be between two people with different
nationalities, be it a foreigner and a Filipino or Filipina, or two foreigners. This is
covered and mentioned in Article 26, paragraph 2 of the Family Code, specifically
referring to an eventual divorce between the contracting parties by the alien
spouse and the effects and consequences thereof. These issues and cases must be
made clear and understandable as to avoid the unnecessary and wasteful
arguments because of obscurities and conflicting interpretations and ideas.
Article 26, paragraph 1 of the Family Code of the Philippines states:
Article 26. All marriages solemnized outside the
Philippines, in accordance with the laws in force in the
country where they are solemnized, and valid there as such,
shall also be valid in this country, except those prohibited
under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
This part of Article 26 concerning marriages outside the Philippines
considers them valid in our country as long as it is also considered valid by the
laws of that foreign country where the marriage was solemnized between the
contracting parties. However, this provision is subject to qualification and
exceptions, which are mentioned and enumerated explicitly in the mentioned
articles, namely Article 35, 36, 37 and 38, with Article 35 being only partially
qualified with few of its paragraphs not included in the exception.
Article 35 of the Family Code states:
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 license, except those covered
the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing
under Article 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article
53.
Excluding paragraphs 2 and 3, Article 35 enumerates those marriages that
are valid here in the Philippines provided the same is also valid in the foreign
country where it is solemnized. Indeed, the sole legality of the said foreign
marriage should not be the basis in allowing it to be also valid in our country, for
the ones enumerated here speak of material variances in the already established
laws, namely not allowing persons below 18 years of age that are wed in other
countries to be validly subsisting here in the Philippines. The preceding
paragraphs also tell the same story, that it is already established and that not
putting these exceptions to Article 26 would allow circumvention of the other
articles in the Family Code. It would serve as a form of protection and I agree to
these provision and exception.
Article 36 of the Family Code states:
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 Executive Order 227)
Likewise, psychological incapacity is included in the exceptions, because
not doing so would entail utmost abuse on the part of the psychologically
incapacitated. It would be like allowing foreigners to marry such kinds of persons,
given that it is not forbidden in their country, to take advantage of the laws of our
country. I reiterate my view on this matter that these well-thought provisions and
exceptions serve to protect us in the end, no matter how incomprehensible they
may be.
Article 37 of the Family Code states:
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)
Again, these cannot be allowed to be valid in our country for they are
incestuous in nature, and incest is highly condemned or more properly, not legal
in the Philippines. Incest is dangerous because they could result to both confusing
titles and abominations of nature, because of the scientific principle that two
creatures, specifically humans, should copulate with other humans who are far
away from their bloodlines because they tend to produce abnormalities in the
offspring.
Article 38 of the Family Code states:
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 step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent
and the adopted child;
(6) Between the surviving spouse of the adopted child and
the adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry
the other, killed that other person's spouse, or his or her
own spouse.
According to the public policy that is observed here in the Philippines,
these enumerated kinds of marriages between certain persons is considered void,
and even celebrating these kinds of marriages abroad does not make it still valid
in our country. Public policy in others countries may differ significantly compared
in ours, but our law is the law, and that it should prevail especially that what is

talked about here is the validity of it in our country, and so our laws should reign
supreme over other nations, regardless of their observed public policy.
These other articles of the Family Code indeed do their purpose to protect
the rights as well as the dignity of the Filipino people. If they allowed such, it
would be very confusing and damaging, because then there would be conflicting
rights and loopholes in the laws. Many who have no good intentions will most
probably be sly enough to take action in circumventing our laws, and that is what
the law tries to avoid and prevent.
Article 26, paragraph 2 of the Family Code states:
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 remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended by
Executive Order 227)
The annotations of Atty. Sta. Maria regarding this part of the Article are
well-versed and agreeable. He mentions that aside from what is explicitly stated,
the Philippine laws respect the divorce initiated by the alien spouse in his or her
home country. This creates a situation where if the Filipino or Filipina spouse
were not allowed to be set free by the said divorce, he or she would be
effectively stuck in a situation where his or her former spouse enjoys the freedom
of marrying another and he or she cannot do the same. That is why the law allows
such what is stated in paragraph 2 of Article 26 of the Family Code. It would be
unfair and unjust. However, if in case the Filipino or Filipina spouse was the one
who initiated the divorce outside the Philippines, regardless if his or her spouse is
an alien or a Filipino, it would not be binding here and it is void. The laws attach
to the Filipino regarding the non-availability of absolute divorce he initiates,
wherever he or she may be. This can be inferred in Article 15 of the Family Code.
They are binding on citizens of the Philippines even though living abroad. To
allow Filipinos to get divorced outside the country would defeat the purpose of
the law regarding marriage, and that the States interest in this so-called
foundation of the family and inviolable institution would be tarnished.
Circumvention of the law would again be prevalent and facile. All of these
provisions of the law regarding marriage serve their purpose as the guardian of
rights of the people and the firm stand of the state in its support for the family.

RICHARD L. CHICO

LLB-1

PERSONS AND FAMILY RELATIONS