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VI. MARRIAGE

The Family Code of the Philippines

Effectivity Date: 3 August 1988

Retroactive Application

The code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other laws. (Article 256)

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. (Art 1, FC)

Marriage vs. Ordinary Contract


1. Marriage is a special contract; and ordinary contract is just a mere contract.
2. Marriage is governed by law on marriage; an ordinary contract is governed by law on contacts.
3. Marriage is an inviolable institution; an ordinary contract is not.
4. Marriage is not subject to stipulation except only with regard to marriage settlement which the parties
may agree upon before the marriage; an ordinary contract is subject to stipulation.
5. In marriage, the contracting parties must only be 2, one is a male and the other is a female; in
ordinary contract, there can be 2 or more parties and the difference of gender is not material.
6. Marriage is terminated by death or annulment due to legal cause, i.e., it cannot be terminated without
the consent of the state; an ordinary contract is terminated upon expiration of the term of the contract,
upon fulfillment of the condition for which it was entered into, rescission, mutual agreement of the
parties or through other causes.

Presumption in Favor of Existence and Validity of Marriage

A man and a woman deporting themselves as husband and wife have entered into a lawful contract of
marriage. This legal presumption may be rebutted by evidence showing that marriage did not actually
take place.

Elements of Presumption of Marriage


1. Cohabitation of man and woman
2. Accompanied with intent to dispose marital obligations
3. Public deportment or representation as husband and wife.

Proof to Disprove the Presumption

The fact that there was no record of the marriage is not sufficient to prove that there is no marriage. To
overcome the presumption, one or both are in fact married to another.

REQUISITES OF A VALID MARRIAGE

Essential Requisites (Art 2, FC):

1. Legal Capacity of the contracting parties who must be a male and a female.

Includes:
a. Age – at least 18 years of age at the time of celebration of marriage. Be it remembered that
formerly, the marriageable age was 14 years for females and 16 years for males.
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Note: With the SC’s decision in CIR vs Primetown amending Art 13 of NCC, did you really
become 18 years old at your 18th birthday?

b. Sex – must be a male and a female.

Illustration:
FACTS: X, a Filipino male. In his certificate of live birth, it was indicated that he is male. Later, he
publicly represented himself as a woman. Eventually, he underwent sex reassignment. He now
anatomically possessed of genetalia of a woman. He then filed a petition for the correction of
entry so that male will be change to female so that he could marry another male. Will the petition
for correction of entry be granted? HELD: NO, because there is no mistake of entry to speak of.
The law does not recognize correction of entries on the ground of sex reassignment, otherwise,
such may disturb public interest and policy. Besides, there is no law regulating sex reassignment.
(Silverio vs. Republic, October 22, 2007)

Note: Civil Registry – historical record of all acts, events, judicial decrees that affects rights,
duties, status, condition, and legal capacity of persons. Birth Certificate is a historical record of
facts at birth. What may be changed are clerical or typographical errors, ridiculous name, etc.

c. Absence of legal impediment

Examples of Legal Impediment


c.1. Prior subsisting marriage
c.2. Relationship - Incestuous marriages (Art. 37) and Quasi-incestuous marriages (Art. 38)
c.3. Public Policy (e.g. last par of Art 38)

Legal Capacity to Contract Marriage by Foreigners, Stateless Persons, Refugees

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.
(A21, FC)

STATELESS PERSONS OR REFUGEES FROM OTHER COUNTRIES shall, in lieu of the certificate
of legal capacity herein required, submit an AFFIDAVIT SHOWING SUCH CAPACITY TO
CONTRACT MARRIAGE. (A21, FC)

The legal capacity of a foreigner to marry, as determined by the law of the country of which he is a
citizen, is recognized by our laws. This is in accordance with the nationality theory under Article 15 of
the Civil Code.

Under Article 35(1): a marriage contracted by any party below 18 years of age EVEN with the consent
of parents or guardians shall be void ab initio.

2. Consent freely given in the presence of the solemnizing officer.

Freely given before a solemnizing officer and in the presence of at least two witnesses of legal age.
The consent is real and not vitiated or rendered defective by any of the vices of consent. It must be
free, voluntary, intelligent and personally given.

Consent need not be expressed in any special manner or particular form so long as there is a
manifestation that the contracting parties take each other as husband and wife.

Total absence of consent makes the marriage void ab initio.


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Hence, the marriage may be annulled if the consent of either party was obtained by fraud, (Art. 45,
par. 3), or if the consent of either party was obtained by force, intimidation or undue influence (Art. 45,
par. 4).

Formal Requisites (Art 3, FC):

1. Authority of the solemnizing officer.

It is not the absence or presence of the solemnizing officer which constitute a formal requirement but
it is the absence or presence of authority.

Marriage may be solemnized by (Art 7, FC):

a. Any incumbent member of the judiciary within the court’s jurisdiction.

Conditions:
i. during incumbency

If on leave – still have the authority

On Sundays, Saturdays, holidays – still have the authority.

ii. within territorial jurisdiction

b. Any priest, rabbi, imam or minister of any church or religious sect

Requisites for authority of a priest to solemnize marriage:


a. He must have written authority to solemnize marriages given by his church or religious sect.
b. He must be registered in the office of the Civil Registrar General (not the local civil registrar).
c. He must act within the limits of such authority.
d. Both or one of the parties to the marriage must belong to his church or sect.

c. Any ship captain or airplane chief (only in cases mentioned in Art 31)

Requisites:
1. the marriage must ne in articulo mortis (at least 1 is at the point of death)
2. the marriage must be between passengers or crew members;
3. generally, the ship must be at sea or the plane must be in flight.

Notes: Assistant pilot has no authority.

Marriages may be solemnized during stopovers at ports of call.

d. Any military commander of a unit (only in cases mentioned in Art 32)

Requisites:
1. he/she must be a military commander of a unit;
2. he/she must be a commissioned officer (his/her rand should start from a second lieutenant);
3. he/she must be assigned to such unit;
4. the said chaplain must be absent at the time of 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.

Notes: The authority of the chaplain to solemnize is based on Art 7.


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Of course, other people like a judge or a consul, can perform a marriage in articulo mortis.

e. Any consul-general, consul, or vice-consul.

Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or


vice-consul of the Philippines. (A10, FC)

The duties of the solemnizing officer with regard to the celebration of marriage shall be performed
by the consular official. (A10, FC)

Notes: Only if the contracting parties are both Filipino citizens. If one is foreigner, marriage is
void.

They don’t have authority to solemnize marriage within the territory of the Phils.

f. Incumbent Mayor of a city/municipality (See secs. 444 and 445 of the Local Government
Code).

Conditions:
i. During incumbency
ii. Within territorial jurisdiction

Note: It has been held that the Vice Mayor has the authority to solemnize marriages because if
the vice mayor assumes the powers and duties of the office of the mayor, when proper, it is
immaterial whether he is the Acting Mayor or merely acting as mayor, for in both cases, he
discharges all the duties and wields the powers appurtenant to said office. (Pp. vs Bustamante,
105 P 64)

Effect if Solemnizing Officer NO Authority; Exception (Effect of Good Faith)

The marriage shall be VOID if it shall be 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. (A35[2], FC)

2. A valid marriage license EXCEPT in the cases provided for in Articles 27, 28, 31 – 34.

Purpose of the Marriage License

It is the best proof of the presence of legal capacity of the contracting parties.

Where to apply?

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. (A9, FC)

If a marriage between Filipino citizens will be celebrated abroad to be solemnized by a consul-


general, consul or vice-consul of the Republic of the Philippines, the issuance of the marriage license
shall be performed by said consular official. (A10, FC)

Requirements for Application

1. Separate sworn application which shall specify the ff.: (Art. 11, FC)
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a. Full name of the contracting party;


b. Place of birth;
c. Age and date of birth;
d. Civil status;
e. If previously married, how, when and where the previous marriage was dissolved or annulled;
f. Present residence and citizenship;
g. Degree of relationship of the contracting parties;
h. Full name, residence, and citizenship of the father;
i. Full name, residence, and citizenship of the mother; and
j. 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.

NOTE: 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.

2. 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. (A12
par 1, FC)

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. (A12 par 1, FC)

When Original Birth Certificate or Baptismal Certificate Need Not be Presented

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. (A12 par 3, FC)

3. 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. (A12 par 2, FC)

4. 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 (authentic) JUDICIAL DECREE
OF THE ABSOLUTE DIVORCE, or the (authentic) JUDICIAL DECREE OF ANNULMENT or
DECLARATION OF NULLITY of his or her previous marriage. (A13 par 1, FC)

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. (A13 par 2, FC)
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Note: In case there is a valid divorce decree, there must first be a Petition For Recognition Of
Divorce Decree because our courts do not take judicial notice of foreign judgments for they must
be alleged and proved.

5. Parental Consent

When Necessary (A14, FC)

In case either or both of the contracting parties, not having been emancipated by a previous
marriage, are between the ages of 18 and 21, shall 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 (by parents) shall be recorded in both applications for marriage license, and the
affidavit, if one is executed instead, shall be attached to said applications.

Note: Absence of consent will render the marriage voidable.

It is submitted that parental consent is required if any or both parties are between the ages of 18,
19, and 20.

6. Parental Advice

When Necessary (A15, FC)

Any contracting party between the age of 21 and 25 shall be obliged to ask their parents or
guardian for advice upon the intended marriage. 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. (it can be manifested in writing or actual
presence of the parents and such shall be noted by the LCR)

Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn
statement.

If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued
till after 3 months following the completion of the publication of the application therefor.

7. Marriage counseling (A16, FC)

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 counsellor duly accredited by the proper government agency to the effect that the
contracting parties have undergone MARRIAGE COUNSELLING.

Failure to attach said certificates of marriage counselling shall suspend the issuance of the
marriage license for a period of 3 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.
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Should only one of the contracting parties need parental consent or parental advice, the other
party must be present at the counselling referred to in the preceding paragraph.

Publication/Posting Requirement (A17, FC)

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 10 consecutive days on a bulletin board outside the office of the
local civil registrar located in a conspicous 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.

Duties of Local Civil Registrar


1. Receive the application for marriage license.
2. Require the presentation of original birth/baptismal certificates except when presentation of this
certificates shall not be required.
3. Require to furnish, instead of this certificate, the death certificate of the deceased spouse or the
judicial decree of annulment or declaration of nullity of his or her previous marriage. In case of
default, an affidavit for such matter shall suffice.
4. In case of default to present such birth certificates, such party may furnish in lieu thereof his
current residence certificate or an affidavit for such matter. Such instrument shall contain the
sworn declaration of 2 witnesses of lawful age.
5. The local civil registrar shall prepare a notice and post the same for 10 consecutive days.
6. 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 (the oppositor may file an injunctive action because LCR has only ministerial function). No
filing fee shall be charged for the petition nor a corresponding bond required for the issuance of
the order. (A18, FC)
7. The local civil registrar shall require the payment of the fees prescribed by law or regulation
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. (A19, FC)
8. Prepare the documents required and to administer oaths to all interested parties without any
charge in both cases. The documents and affidavits filed in connection with the applications for
marriage licenses shall be exempt from documentary stamp tax.
9. 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.
10. Issue the License after publication unless ordered otherwise by a competent court.
11. Proper receipts shall be issued by the LCR to the solemnizing officer transmitting copies of the
marriage certificate.

Note: If Marriages between Filipino citizens abroad be solemnized by a consul-general, consul or


vice-consul of the Philippines, The duties of the local civil registrar with regard to the celebration of
marriage shall be performed by the consular official. (A10, FC)

Suspension of the Issuance of the Marriage License


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If parental advice is required and the parties do not obtain such advice, or if it be unfavorable, the
marriage license shall not be issued till after 3 months following the completion of the publication of
the application therefor.

Failure to attach certificates of marriage counseling, if required, shall suspend the issuance of the
marriage license for a period of 3 months from the completion of the publication of the application.

Enforceability/Validity of the License (A20, FC)

The license shall be valid in any part of the Philippines for a period of 120 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.

The date of issue is the date of signing of the marriage license by the Local Civil Registrar

An expired license is a void license. A void license cannot validate a marriage.

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 2 witnesses of legal age. (A3, FC)

Form – 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 2 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 attested by the solemnizing officer. (A6 par 1, FC)

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
said party, which fact shall be attested by the solemnizing officer. (A6 par 2, FC)

Authorized Venues for Marriages


GENERAL RULE: The marriage shall be solemnized publicly, and not elsewhere:
1. In the chambers of the judge;
2. In open court;
3. In the church, chapel or temple;
4. In the office of the consul-general, consul or vice consul, and not elsewhere.

EXCEPT:
1. In marriages contracted at the point of death;
2. In remote places;
3. Marriage at a house or place designated by the parties in a sworn statement upon their written to
the solemnizing officer.
4. All marriages solemnized OUTSIDE the Philippines in accordance with the laws in force in the
country where they were solemnized and valid there as such, shall also be valid in this country,
except those void foreign marriages. (A8, FC)

Marriage by proxy:
a. If performed here in the Philippines, the marriage is void because physical presence of both
parties is required.
b. If performed abroad, whether between Filipinos or foreigners or mixed, and valid there as such,
the marriage should be considered valid in the Philippines as mentioned under Art. 26.
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MARRIAGE CERTIFICATE – proof of marriage in which the parties declare that they take each other as
husband and wife.

Contents of Marriage Certificate

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 marriage provided for
in Chapter 2 of this Title;

(5) That either or both of the contracting parties have secured the 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 marriage settlement, if any, attaching a copy thereof. (A22, FC)

Purpose and Value of Marriage Certificate

The primary or best evidence of a marriage is the marriage contract or marriage certificate.

Since marriage certificate is neither an essential nor a formal requisite, an unsigned or unattested
marriage certificate does not invalidate the marriage.

Who Issues Marriage Certificate: Solemnizing Officer

Duties Of The Solemnizing Officer:


1. To prepare marriage certificate: the original for the contracting parties (either of them); 2 (duplicate
and triplicate) for the LCR not later than 15 days after the celebration of the marriage; one
(quadruplicate) shall be retained by the solemnizing officer.

2. In the cases provided under Art. 27 (marriage in articulo mortis) and 28 (marriage in remote places),
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 under such
circumstances stated in said articles, and that the officer took the necessary steps to ascertain the
ages and relationship of the contracting parties and the absence of a legal impediment to the
marriage.

The affidavit of the solemnizing officer required by this article takes the place of the marriage license
and constitutes an assurance that the parties are of the proper ages and that there is no impediment
to their marriage.

3. The original of the affidavit required above, together with a legible copy of the marriage contract,
shall be sent by the person solemnizing the marriage to the LCR of the place where it was performed
within the period of 30 days after the performance of the marriage.

LCR has the duty to record the marriage certificate. Failure to record will not invalidate the marriage
because it is merely an administrative requirement.
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4. For marriages involving ratification of marital cohabitation, the solemnizing officer shall state under
oath that he ascertained the qualifications of the contracting parties and found no legal impediment to
the marriage.

Distinguished From Marriage License

1. Marriage license is a formal requisite of marriage, while marriage certificate is not.


2. Marriage license is issued before celebration of marriage, while marriage certificate is issued after the
celebration of marriage.
3. Marriage license shows the authority to contract marriage, while marriage certificate shows facts of
celebration.
4. Absence of marriage license renders the marriage void, while absence of marriage certificate will not
invalidate marriage.

ABSENCE, DEFECT OR IRREGULARITY IN THE REQUISITES

Effect of ABSENCE of Essential and Formal Requisites

GENERAL RULE: The absence of any of the essential or formal requisites shall render the marriage void
ab initio. (A4 par 1, FC)

Absence is a mere ground for declaration of nullity of marriage. Thus, if there is no judicial declaration of
nullity of marriage, the marriage is presumed valid and existing.

Instances of Absence of Legal Capacity


a. Any or both contracting parties are below 18 at the time of celebration of marriage. (Art 35 par 1,
FC)

This is true notwithstanding the fact that the marriage was celebrated abroad and valid there as
such, shall not be valid in the Philippines because it falls under the exception of lex loci
celeracionis. (Art 26, par 1, FC)

b. Bigamous/Polygamous marriages (Art 35 par 4, FC) – see Discussion Below

c. Void marriage because of no compliance with Art 53 (Art 35[6], FC) – see Discussion Below

d. Incestuous Marriages (Art 37, FC)

e. Quasi-Incestuous Marriages/Void Marriages by Reason of Public Policy (Art 38, FC)

Instances of Absence of Consent


a. If one or both are suffering from psychological incapacity at the time of marriage even if becomes
manifest after the celebration. (Art 36, FC; see discussion below)
b. When there is mistake of identity (Art 35 [5], FC)
c. Marriage by proxy (no consent/no declaration) EXCEPT when celebrated abroad and valid there
as such.

No Authority of the Solemnizing Officer – the marriage is void, provided both parties are in bad
faith, that is, they did not intend to be bound by the marriage, thus marriage is a sham.

EXCEPT:
1. Either or both parties believing in good faith that the solemnizing officer had the legal authority to
do so; (A35[2], FC)
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2. Lex Loci Celebrationis

Lack of Marriage License - Marriage license is a prerequisite to the celebration of marriage, thus
absence of which renders the marriage void.

EXCEPT:
1. Lex Loci Celebrationis

Marriages solemnized outside the Philippines where no marriage license is required by the
country where it is solemnized and valid there as such, shall also valid here.

2. Marriages Under Exceptional Circumstances (A27-34, FC; See discussion below)

Lack of Marriage Ceremony

EXCEPT: Lex Loci Celebrationis

Illustration:
FACTS: H and W got married in the Philippines. W went to Canada where she obtained a divorce. H
contracted subsequent marriage with W2. H then filed a petition for declaration of nullity of his 1 st
marriage on the ground of the existence of divorce and that there was no marriage ceremony. The
fiscal charged him with bigamy for which he was convicted. Pending appeal of the judgment of
conviction, the marriage was declared void in the petition for declaration of nullity on the ground that
there was no marriage ceremony took place. CA affirmed the conviction. HELD: SC reversed the
judgment. H cannot be held liable for bigamy because the 1 st marriage is not ostensibly valid. (Morigo
vs Pp, 422 S 376)

Effect of Defect in Essential Requisites

A defect in any of the essential requisites shall render the marriage voidable as provided in Art. 45. (A4
par 2, FC)

Effect of Irregularity in Formal Requisites

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 held civilly, criminally or administratively liable. (A4 par 3, FC)

This is a three-fold liability.

Examples of Irregularity of in Formal Requisites:


1. Marriage solemnized outside territorial jurisdiction of the judge – irregularity of the formal requisite of
authority of the solemnizing officer.
2. Marriage solemnized in places other than those authorize venues – irregularity in marriage ceremony.
3. A marriage contracted by a party who is 21-25 years old without parental advice – irregularity in
securing a valid marriage license.
4. Failure to post the application for marriage license – irregularity in securing a valid marriage license.
5. Absence of 2 witnesses of legal age – irregularity in marriage ceremony.
6. Absence of marriage certificate.
7. Unsworn application for marriage license.

MARRIAGES CELEBRATED OUTSIDE THE PHILIPPINES


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GENERAL RULE: All marriages solemnized outside the Philippines, in accordance with the laws in force
in the country where they were solemnized, and valid there as such, shall also be valid in this country
(LEX LOCI CELEBRATIONIS). (A26 par 1, FC)

EXCEPTIONS:
a. Either or both parties did not have the legal capacity to get married. (A35[1], FC)

Art 15 of NCC provides that laws relating to legal capacity of persons are binding upon citizens of the
Phils, even though living abroad. Art. 26 of FC and Art 15 of NCC express the extra-territorial effect of
the exception. Moreover, Art 17 par 3 of NCC provides that prohibitive laws concerning persons, their
acts or property, and those which have for their object public order, public policy and good customs
shall not be rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country.

b. The marriage is immoral being bigamous or polygamous not falling under Art 41. (A35[4], FC)
c. Consent of one party is lacking because of mistake as to the identity of the other. (A35[5], FC)
d. Subsequent marriages which are considered void due to lack of recording under Art. 53. (A35[6], FC)
e. One of the parties is psychologically incapacitated at the time of the marriage. (A36, FC)
f. Incestuous marriage. (A37, FC)
g. Void marriages by reason of public policy. (A38, FC)

Note: Common-law marriages obtained abroad by Filipinos are also not valid in the Philippines.

FOREIGN DIVORCES

Absolute Divorce by a Filipino Spouse

Divorce initiated by a Filipino is against public policy, thus, cannot be recognized. Art 15 of NCC provides
that laws relating to family rights and duties or to status, condition and legal capacity of persons are
binding upon citizens of the Phils, even though living abroad. Moreover, Art 17 par 3 of NCC provides that
prohibitive laws concerning persons, their acts or property, and those which have for their object public
order, public policy and good customs shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country. A Filipino is governed
by his national law wherever he goes.

HOWEVER, insofar as the foreigner is concerned, the divorce obtained by the Filipino spouse will be
recognized because of the Philippine’s adherence to the nationality rule. Thus, the foreigner spouse
cannot claim that he/she still has an interest in the property acquired by the Filipino after the divorce. As
to the foreigner, he/she shall be considered divorced. Foreigner cannot also file a criminal case of
adultery/concubinage against the Filipino spouse because while the latter is considered married to
him/her, the foreign spouse is no longer married to the Filipino. (Van Dorn vs Romillo, 139 S 139; Pilapil
Case)

Divorce by Foreigner Spouse

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 likewise have capacity to remarry under Philippine law. (A26 par 2, FC, as amended by EO
227)

Note: This is a limited recognition of divorce.

REQUISITES:
1. Marriage between a Filipino citizen and a foreigner is validly celebrated (textually mixed
marriage);
P a g e | 13

2. Alien spouse obtained a divorce against the Filipino spouse;


3. Divorce is VALID under the national law of the alien spouse;
4. The divorce dissolves the marital bonds;
5. The divorce capacitates the alien spouse to remarry.

TRADITIONAL RULE: Art 26 par 2 applies when parties at the time of celebration are a Filipino and
an alien.

BUT UNDER RECENT JURIPRUDENCE, a divorce obtained by a former Filipino who had been
naturalized in another country after his naturalization is NOW recognized.

The validity of divorce is determined by the nationality of the party who obtained it. (San Luis vs. San
Luis, February 2007)

Mitigation of Consequences Principle

For as long as divorce is valid and even if the Philippines does not recognized it, nevertheless, it
would mitigate the effects of divorce in favor of the Filipino spouse.

The intent of said provision (Art 26, par 2, FC) is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse, who after obtaining a divorce, is no longer married to the
Filipino spouse. Taking into consideration the legislative intent, the provision should be interpreted to
include cases involving parties who, at the time of celebration of the marriage, were Filipino citizens,
but later one of them becomes naturalized as a foreign citizen and obtains a divorce decree. The
Filipino spouse should likewise be allowed to remarry as if the other party was a foreigner at the time
of the solemnization of the marriage. To rule otherwise would be to sanction absurdity and injustice.
(Republic v Obrecido, Oct 5, 2005; Republic v Iyoy, Sept 21, 2005) The other reason for this is the
application of nationality theory for a former Filipino is no longer governed by Philippine Law.

MARRIAGES UNDER EXCEPTIONAL CIRCUMSTANCES

a. Marriage in Articulo Mortis

Art. 27: marriage in articulo mortis; remains valid even if the ailing party subsequently survives.

Duty of the Solemnizing Officer

The solemnizing officer shall state in an AFFIDAVIT executed before the LCR or any other
person legally authorized to administer oaths that the marriage was performed in articulo mortis.
(A29, FC)

The original of the affidavit required together with the legible copy of the marriage contract, shall
be sent by the person solemnizing the marriage to the LCR of the municipality where it was
performed within the period of 30 days after the performance of the marriage. (A30, FC)

Art. 31: marriage in articulo mortis between passengers or crew while the ship is at sea or the plane is
at flight, and during stopovers at ports of call.

Art. 32: marriages in articulo mortis between persons within the zone of military operation, whether
members of the armed forces or civilians.

Who May Solemnize


P a g e | 14

All those authorized under Article 7 of the Family Code and the Mayor. Compliance with other
requirements before they can solemnize is necessary

b. Marriages in Remote Place

Art. 28: marriage in remote places (no means of transportation to personally appear to the LCR).

Duty of the Solemnizing Officer

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 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 LCR 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. (A29, FC)

The original of the affidavit required together with the legible copy of the marriage contract, shall
be sent by the person solemnizing the marriage to the LCR of the municipality where it was
performed within the period of 30 days after the performance of the marriage. (A30, FC)

c. Marriages among Muslims or among Members of the ethnic cultural communities.

Art. 33: Marriages among Muslims or among members of the ethnic cultural communities provided
that they are solemnized in accordance with their customs, rites or practices.

d. Convalidation of Cohabitation/Ratification of Marital Cohabitation

Art. 34: 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.

Requisites of ratification of marital cohabitation:


1. The contracting parties must have been living together as husband and wife for at least 5 years
before the marriage.
2. The parties must have no legal impediment to marry each other during the cohabitation.
3. The contracting parties shall state the foregoing facts in an affidavit before any person authorized
by law to administer oaths.
4. 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.

Status of the Marriage

The marriage is valid even if celebrated without marriage license.

Marriages solemnized without license are void from the beginning, except those Marriages under
exceptional circumstances. (A35[3], FC)

Marriage license is a formal requisite of marriage EXCEPT those marriages under exceptional
circumstances. (A3[2], FC)

VOID AB INITIO MARRIAGES

VOID MARRIAGES – marriage which is not valid from its inception.

Declaration of Nullity Divorce


P a g e | 15

Cause of nullification Cause exists after the


exists from the beginning marriage.
of marriage.
One recognized in the Not recognized in the
Phils which allows the Phils EXCEPT when
parties to remarry. obtained by foreigners
and valid in their country.

Void Marriages Under the FC:


1. Between minors (below 18) even with consent of parents or guardians. (A35[1], FC)

2. Solemnized by unauthorized officer, EXCEPT good faith of one or both of the parties. (A35[2], FC)

3. Solemnized without marriage license, except under Art. 27, 28, 31–34(marriages exempt from
marriage license). (A35[3], FC)

4. Bigamous/polygamous

Requisites of Bigamy
a. There is a prior subsisting marriage;
b. Prior marriage not validly terminated;
c. Spouse contracted a 2nd or subsequent marriage;
d. 2nd or subsequent marriage would have been valid were it not for prior subsisting one.

GENERAL RULE: A marriage contracted by any person during the subsistence of a previous
marriage is VOID.

EXCEPTIONS:
a. Code of Muslim Personal Laws

Muslim men in the Philippines are allowed maximum of 4 marriages even if the prior marriage/s
are still subsisting. Such privilege is not granted among Muslim women.

b. Art. 41: a marriage contracted by any person during the subsistence of a previous marriage in
cases where the prior spouse had been absent; (A35[4], FC)

Valid Bigamous Marriage - before the celebration of the subsequent marriage, the prior spouse
had been absent for 4 consecutive years and the spouse present had 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 under Art. 391 of the Civil Code, an absence of only 2 years
shall be sufficient.

For the purpose of contracting the subsequent marriage, the spouse present must institute a
summary proceeding for the declaration of presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse: this provision is intended to protect the
present spouse from a criminal prosecution for bigamy because with the judicial declaration that
the missing spouse is presumptively dead, the good faith of the present spouse in contracting a
second marriage is already established.

Requisites (A41, FC):


a. Before the celebration of the subsequent marriage, the prior spouse had been absent for
FOUR consecutive years (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);
P a g e | 16

b. the spouse present has a WELL-FOUNDED BELIEF that the absent spouse was already
dead.

In Republic vs Nolasco, this requirement is satisfied if serious and diligent efforts is exerted to
locate the whereabouts of the absent spouse. If there is police assistance, thus the
disappearance must be reported to the police. There must also be sending of letters to the
relatives or known acquaintances of the absent spouse. And there must be actual physical
search of the places where the absent spouse is possibly be.

c. Spouse present must institute a summary proceeding (NOT a special proceeding) for the
judicial declaration of presumptive death (by way of petition) of the absentee, without
prejudice to the effect of reappearance of the absent spouse.

Note: Courts usually refuses to make judicial declaration of presumptive death because it is
not conclusive. Unlike in Arts 390 and 391, NCC, it is only in Art 41 of FC that a judicial
declaration of presumptive death is mandatorily required for the purpose of capacitating the
present spouse to remarry. It is also required in cases of settlement of estate.

RECENT JURISPRUDENCE ruled that the judicial declaration of presumptive death is


immediately final and executory, thus not subject to appeal.

The judicial declaration must be registered with the LCR.

Effect of registration:
a. The effects of 1st marriage is merely suspended.
b. 2nd marriage is conditional, that is, dependent on the confirmation of death and
reappearance.

Effects of Subsequent Marriage

IF BOTH PARTIES IN GOOD FAITH – marriage is valid. If the absent spouse reappeared and
he/she or any interested person does not file an affidavit with the civil registrar of the fact of
reappearance, 2 valid marriages exist (valid bigamous marriage).

IF BOTH SPOUSES OF THE SUBSEQUENT MARRIAGE ACTED IN BAD FAITH – marriage


shall be void ab initio (for being bigamous) and all donations by reason of marriage and
testamentary dispositions made by one in favor of the other are revoked by operation of law.
(A44, FC) An example of this is when both parties to the 2 nd or subsequent marriage know the
whereabouts of the absent spouse.

Cause of Termination of Subsequent Marriage

The subsequent marriage shall be automatically terminated (terminated ipso facto) by the
recording of the affidavit of reappearance of the absent spouse (constitute as a notice in rem,
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.
(A44, FC)

This is the only instance where a marriage is terminated extra-judicially EXCEPT when
reappearance is disputed.

Effects of Termination of Subsequent Marriage


P a g e | 17

The termination of the subsequent marriage referred to in the preceding Article shall produce the
following effects (Art. 43, FC):

(1) The children of the subsequent marriage conceived prior to its termination shall be considered
legitimate;

(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.

Exception to the Exception: If both the spouses of the subsequent marriage acted in bad faith,
such marriage is void ab initio. (Art 44)

c. Art 26 par 2, FC – Valid Foreign Divorce (see Discussion Above)

5. Contract by Mistake In identity – the mistake here is with regard to the physical identity of one of
the parties and not with regard merely to the character, health, rank, fortune, or chastity of one party
to the marriage. This is tantamount to absence or lack of consent which makes the marriage void.
(A35[5], FC)

6. Subsequent marriages in violation of Arts 40, 52 and 53

Art. 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.

Pp vs Aragon, Feb 28, 1957 – no need of judicial declaration.

Gomez vs Lipana, June 30, 1970 – there was a need for a judicial declaration.

Odayat vs Amante, June 2, 1977 – no need for judicial delaration.

Weigel vs. Sempio Diy, Aug 19, 1986 – there was a need for judicial declaration.

Yap vs CA, Oct 28, 1986 – no need for a judicial declaration.

Family Code, Aug 3, 1988 – there is a need for judicial declaration.

Purpose/Aim of Art 40

The aim is to do away with any continuing uncertainty on the status of the 2nd marriage. The 2nd
marriage shall likewise be void. The parties to a marriage should not be allowed to assume that there
marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of
P a g e | 18

their marriage. Before such declaration, the person who marries again can be charged with bigamy.
(Mercado Case)

Distinguished From Bigamous Void Marriage

In bigamous void marriage, the subsisting first marriage is valid, while in Art 40, the subsisting
marriage is void. Thus, if a person remarries without a judicial declaration of nullity of the first
marriage, the subsequent marriage is void not because it is bigamous but because it violates Art 40.

Distinguished From Criminal Bigamy

The crime of bigamy contemplates a situation where the first marriage is valid, or at least annullable
and not void from the beginning.

HOWEVER, in the case of Mercado vs. Mercado, Aug 1, 2000, SC held that bigamy is committed for
as long as a subsequent marriage was contracted without judicial declaration of nullity of the first
marriage pursuant to Art 40 in relation to Arts 52 and 53 of FC. (But see dissenting opinion of Justice
Vitug) This ruling, in effect, states that criminal bigamy is determined not by the fact that the first
marriage is really legally void but by the fact that no judicial declaration of nullity of the first marriage
was obtained prior to the subsequent marriage.

Note: Although the first marriage is judicially declared void, any subsequent marriage may still be
considered void because of the failure to comply with Arts. 52 and 53.

Art. 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.

Final Judgment of Nullity of Marriage is binding only between the parties, the effect of which is
terminating the marriage bond.

GENERAL RULE: Judgment NOT binding against 3rd persons.

EXCEPT: When there is registration of the judgment.

Where to Register: Appropriate civil registry and registries of property.

Art. 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.

Note: The recording is NECESSARY to bind 3rd persons and for the parties to be able to validly
contract a subsequent marriage.

The fact of registration restores legal capacity to contract a subsequent marriage.

7. Art. 36: Those contracted by a party who at the time of the celebration of marriage was
psychologically incapacitated to comply with the marital obligations even if such incapacity
becomes manifest only after its solemnization.

Psychological incapacity - the condition of a person who does not have the mind, will, and heart for
the performance of essential marital/parental obligations. It is the inability to understand the marital
obligations leading to non-performance of the same.
P a g e | 19

It has no exact definition but is restricted to psychological incapacity to comply with the essential
marital obligations of marriage. It involves a senseless, protracted, and constant refusal to comply
with the essential marital obligations by one or both of the spouses although he/she or they are
physically capable of performing such obligations. (Chi Ming Tsoi vs CA)

It must be adjudged on a case to case basis. It should refer to no less than a mental (not physical)
incapacity.

General characteristics of psychological incapacity:


a. It must be Grave - if the subject cannot carry out the normal and ordinary duties of marriage and
family, shouldered by any average couple existing under ordinary circumstances of life and work.
b. Juridical Antecedent - if the roots of the trouble can be traced to the history of the subject before
the marriage although its overt manifestations appear only after the wedding.
c. It must Permanent and Incurable - if treatments required exceed the ordinary means of the
subject, or involve time and expense beyond the reach of the subject.

Jurisprudential Guidelines in Interpreting and Applying Article 36 – BREIGOIC (Republic v.


Molina)

a. The burden of proof to show the nullity of the marriage belongs to the plaintiff, and any doubt
must be resolved in favor of the existence of the marriage and against its nullity.

b. The root cause of the psychological incapacity must be:

1. Medically or clinically identified

2. Alleged in the complaint

It has been relaxed, thus it need not be alleged in the complaint.

3. Sufficiently proven by experts

In the case of Marcos vs Marcos, October 19, 2000, it is not indispensable to undergo
psychiatric evaluation, it is sufficient that one is assessed by expert for purposes of the
petition.

Expert testimony is no longer indispensable.

Under present jurisprudence, the incapacity must be proven based on the totality of evidence
presented.

In Ferraris vs Ferraris, 495 SCRA 396, SC held that the marriage cannot be voided on the
ground of psychological incapacity because of the failure to prove the existence of the same.
SC also discussed in this case the probative weight of the expert testimony to the effect that
the doctor failed to prove the existence of mixed personality disorder of the husband. The
testimonies of the doctor were just her assumptions and based on what the plaintiff confined
to her, thus hearsay. There was failure to obtain collateral information.

However, if there are independent evidence to show the incapacity, then the marriage may
be declared void.

Expert testimony is only indispensable when no other evidence was presented, otherwise,
such will only be considered cumulative or corroborative.

4. Clearly explained in the decision


P a g e | 20

c. The incapacity must be proven to be existing at the time of the celebration of the marriage
although the manifestation need not be perceivable at such time.

d. The incapacity must also be shown to be medically or clinically permanent or incurable, although
the incurability may be relative only in regard to the other spouse, not necessarily absolutely
against everyone of the same sex.

Incurability may be absolute as when the incapacity persists in all relationships. It may also be
relative as when the incapacity is only with the present spouse.

e. Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage.

This means that there must be a serious mental and personality disorder which renders him or
her incapable of understanding his/her marital obligations.

If the mental disorder is not connected with the failure to perform marital obligations, it is
considered merely as a difficulty.

f. The essential marital obligations must be those embraced by Arts. 68 –71 and Arts. 220 - 225 of
the Family Code, with regard to parents and children. Such non-compliance must also be state
in the petition, proven by evidence, and included in the text of the decision.

Essential marital obligations:


Art. 68: the husband and wife are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support.
Art. 220: parental authority over the person of their unemancipated children.
Art. 225: parental authority over the property of their unemancipated children.

g. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic


Church, while not controlling, should be given great respect by our courts.

When the marriage is annulled by the NAMT, still, the marriage under the civil law is valid and
existing.

h. The trial court must order the fiscal and the Solicitor general to appear as counsel for the State.
No decision shall be handed down unless the Solicitor general issues a certification, which will be
quoted in the decision, briefly stating his reasons for his agreement or opposition to the petition.
The Solicitor General and the fiscal shall submit such certification to the court within 15 days from
the date the case is submitted for resolution.

Note: The favorable recommendation of OSG has been relaxed. There must be an independent
judgment of the court.

The Following Do Not Constitute Psychological Incapacity


1. Drunkenness / habitual alcoholism
2. Joblessness
3. Mere sexual infidelity or perversion
4. Abandonment
5. Immaturity
6. Irresponsibility
7. Refusal to give support
8. Infliction of physical violence

Note: While these may not constitute psychological incapacity, they may be considered as
manifestations.
P a g e | 21

8. Incestuous Marriages (Art 37, FC)

Marriages between the following are incestuous and void from the beginning, whether the relationship
between the parties be legitimate or illegitimate:
1. Between ascendants and descendants of any degree.
2. Between brothers and sisters, whether of the full or half-blood.

Rationale for the Ban on Incestuous Marriage

In the first place, they are abhorrent to the nature, not only of civilized men, but of barbarous and
semi-civilized people and, in the second place, tend to the confusion of rights and duties incident to
family relations. Also, a child of incestuous union creates a special problem of social placement,
because its status is so confused, as is that of its parents. In addition, science and experience have
established beyond cavil that such intermarriages very often result in deficient and degenerate
offspring, which if occurring to any great extent, would amount to a serious deterioration of the race.
Finally, social prohibitions against incest promote solidarity of the nuclear family.

9. Quasi-incestuous Marriages / Void by Reason of Public Policy (ART 38, FC)

These marriages are void from the beginning for reasons of public policy:
1. Between collateral blood, 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.
9. Between parties where one, with the intention to marry the other, killed that other person’s
spouse, or his or her own spouse; in this case, there is no need for conviction of the guilty party.

Reasons for the Prohibition

They are against public policy. It is the policy of the state to foster a normal, peaceful and wholesome
integral nuclear family unit which would constitute the very foundation of society.

Other relationships which are not impediments to marriage:


1. Brother-in-law and sister-in-law
2. Stepbrother and stepsister
3. Guardian and ward
4. Adopted and illegitimate child of the adopter
5. Adopted son of the husband, and adopted daughter of the wife

NOTE: RA 6995 (Mail Order Bribe Act) declares as unlawful the practice of matching Filipino women
for marriage to foreign nationals on a mail order basis and other similar practices including the
advertisement, publication, printing or distribution of brochures, fliers and other propaganda materials
in furtherance thereof.

Action For Declaration Of Nullity Of Marriage

Who may Bring

A petition for the declaration of absolute nullity of void marriage may be filed SOLELY by the husband or
the wife.” (S2[a], AM 02-11-10-SC)
P a g e | 22

Petition for declaration of nullity of marriage, in the case of Catalan vs CA, February 2, 2007, is
considered as an ordinary civil action, thus any proper party who has legal interest may file the petition. In
this case, SC recognized the legal capacity of the 1st wife to institute the petition.

Petition for declaration or annulment of marriage shall be filed by the aggrieved spouse and such is
personal to him/her while he/she is still living. After death, the heirs may assail the validity of marriage in
the settlement proceedings. (Enrico Case, 534 SCRA 418) In effect, the settlement court can decide on
the validity of marriage whose decision is final and inappealable.

Moreover, in the case of Ninal vs Bayadog, March 14, 2000, SC recognized the right of the heirs of the
deceased father assailing the validity of his marriage with their step-mother in a settlement proceeding.
They have legal interest to determine their successional right to the exclusion of the step-mother.

The pleading may be in the form of petition or complaint where all grounds must be alleged. In one case,
there was a petition filed for declaration of nullity of marriage under Art 36. The court dismissed the case.
On appeal, one new ground is included which is lack of license. SC held that the new ground should be
disregarded. All grounds must be alleged. Further, SC held that the judgment can no longer be reversed
because parties are estopped from citing the new ground. Neither the party can file a 2 nd petition for
nullity by reason of res judicata.

Where to File:

The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent
has been residing for at least 6 months prior to the date of the filing or in the case of non-resident
respondent, where he may be found in the Philippines, at the election of the petitioner. (S2[b], AM 02-11-
10-SC)

Prescriptive Period

The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (Art 39, FC;
S2[c], AM 02-11-10-SC)

Note: RA 8533 amended Art. 39, eliminating the second sentence thereof which states the prescriptive
period of 10 years in case of marriages celebrated before the affectivity of FC which fall under Art 36 .

Appearance of the State/Prohibition vs. Default Judgment

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

If the defendant fails to answer within 15 days from receipt of the summons, he or she cannot be declared
in default unlike in ordinary civil cases, and the court will order the full-blown (not summary) hearing of the
case.

If the answer admits the allegations of the petition, judgment on the pleadings cannot be decreed.
Material facts alleged in the petition shall always be proved.

Note: Appearance of the OSG is no longer indispensable if the State is already protected by the
appearance of the prosecutor.

Reason for the Appearance of the State


P a g e | 23

The reason for the duty is because marriage is not just a contract between the parties but a social
institution, in the preservation of which, the State is interested.

COLLUSION – one which occurs where, for purposes of getting an annulment or nullity decree, the
parties come up with an agreement making it appear that the marriage is defective due to the existence of
any of the grounds for annulment or nullity and agreeing to represent such false or non-existent cause of
action before the proper court with the objective of facilitating the issuance of a decree of annulment of
nullity of marriage.

The Following Warrants the Conduct of Investigation


a. If defendant does not tender an answer.
b. If there is an answer but no further appearance.
c. If either of the parties withdraw from the case.

If there is collusion, dismissal of the petition is warranted.

HOWEVER, even if there is an agreement to file the annulment or nullity case, collusion will not exist if
the grounds relied upon truly exist and are not just concocted.

STIPULATION OF FACTS – admission by both parties made in court agreeing to the existence of the act
constituting the ground for annulment or nullity.

CONFESSION OF JUDGMENT – admission made in court by the defendant admitting fault as invoked by
the plaintiff to sever the marriage ties.

Right To Support And Custody During The Pendency Of The Action

Art. 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 to in Title IX (See Art 213). It shall also provide for appropriate visitation rights of the other
parent.

Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit.

No child under 7 shall be separated from the mother, unless the court finds compelling reasons to order
otherwise.

Necessity of Final Judgment / Requirement for Remarriage (Art 40 in rel to Arts. 52 and 53 – see
discussion above)

Effects of Declaration of Nullity


1. No more marriage ties between the parties. No obligation to support one another. Duty to perform
marital obligations is extinguished.
2. Children conceived and born during the marriage is downgraded to the status of illegitimate. The
finality of judgment makes the children illegitimate ipso facto. An exception to this rule id Art 35[6] and
Art 36 of the FC.
3. Children are entitled to support. If the matter of custody is not yet resolved, apply the rules on
custody. There is grant of physical custody to be exercised by one party and visitation rights to be
exercised by the other.
4. There is dissolution and liquidation of co-owned property under the rule on co-ownership under Art
147.
P a g e | 24

The property will be divided in equal share unless there is proof to the contrary.

Liquidation only happens after finality of judgment. In US, they call it “bifurcated process.”

The liquidation is subject to the rule on forfeiture. Thus, 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.(Art 43 [2], FC)

SC held that in bigamous marriages along with adulterous relationships, relationships in a state of
concubinage, relationships with prior existing marriages, or multiple marriages of married man, Article
148 of the FC on Rule of Limited Co-ownership shall apply. In such case, there is no presumption of
equal sharing. Thus, co-ownership extends during relationship upon proof of actual acquisition.
(Atienza vs De Castro)

5. 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. (Art 43 [3], FC)
6. 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; (Art 43 [4],
FC) and
7. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from
the innocent spouse by testate and intestate succession. (Art 43 [5], FC)
8. 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 dispositions made by one in favor of the
other are revoked by operation of law. (Art 44, FC)

NOTES:
▪ 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 third
presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.
(A51, FC)

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.

Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the
common children choose to remain. Children below the age of 7 years are deemed to have chosen
the mother, unless the Court has decided otherwise. In case there is no such majority, the Court shall
decide, taking in to consideration the best interests of said children.

▪ Art. 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.
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Note: As a rule, in void marriages, delivery of presumptive legitimes is not required EXCEPT only in
void subsequent marriage resulting from non-compliance with Art 40 in relation to Arts 52 and 53.
This is because the rules on co-ownership shall govern the partition and liquidation.

▪ Art. 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.

▪ Art. 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.

Status of Children born of Void Marriage

GENERAL RULE: Children conceived and born outside a valid marriage or inside a void marriage are
illegitimate.

EXCEPTIONS:
1. Children conceived or born (after the marriage but) before the judgment absolute nullity of the
marriage under Article 36 has become final and executory shall be considered legitimate.
2. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate.
(A54, FC)

VOIDABLE MARRIAGES / ANNULLABLE MARRIAGES

VOIDABLE MARRIAGE - is valid until it is annulled. Before annulment, the voidable marriage must be
regarded as valid. One cannot just take the law into his own hands. He must go to court.

VOID VOIDABLE
Invalid/void from the Valid until annulled.
beginning.
Never be ratified. Susceptible of
ratification.
Children, illegitimate Children, legitimate.
EXCEPT Arts. 36 & 53.
Liquidation of property, Based on property
co-ownership under Art regime.
147 and if bigamous
marriage Art 148.
Can be collaterally Direct attack.
attacked EXCEPT for
purposes of remarriage,
or revocation of donation
propter nuptias.
Nullification is There is prescription.
imprescriptible.
Any party who has legal Parties are only those
interest may impugn the provided by law.
validity of marriage.
Judicial decree of nullity Judicial declaration is
is necessary for necessary.
purposes of remarriage.
P a g e | 26

Grounds for the annulment of marriage (Art 45 – the grounds are exclusive):

The marriage may be annulled for any of the following causes, existing AT THE TIME OF THE
MARRIAGE: LIV-VIA

1. Lack of Parental Consent - That the party in whose behalf it is sought to have the marriage annulled
was 18 years of age or over but below 21, and the marriage was solemnized without the consent of
the parents, guardian or person having substitute parental authority over the party, in that order,
UNLESS after attaining the age of 21, such party freely cohabited with the other and both lived
together as husband and wife.

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

INSANITY – a manifestation, in language or conduct, of disease or defect of the brain, or a more or


less permanently diseased or disordered condition of the mentality, functional or organic, and
characterized by perversion, inhibition, or disordered function of the sensory or the intellective
faculties, or by impaired or disordered volition.

Test of Unsoundness of Mind

The test is whether the party was deprive of reason. Insanity which occurred after the celebration of
marriage cannot constitute a cause of nullity.

Drunkenness – may be considered insanity depending on the degree of drunkenness which deprives
a person of his reason.

Somnambulism (sleep-walking) – there is deprivation of reason, thus insanity.

Hypnotism – considered insanity provided there is deprivation of reason.

Comatose – considered insanity. It is not the disease that is considered but the effect of the disease.

Presumption of the Law

The general presumption of the law is in favor of sanity. He who alleges unsoundness of mind has the
burden of proof.

Insanity vs Psychological Incapacity

Insanity is a restriction of the capacity to act, while psychological incapacity is the incapacity to
comply with marital obligations.

3. Vitiated Consent through Fraud - That the consent of either party was obtained by fraud, UNLESS
such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the
other as husband and wife.

Fraud constitutes (Art 46):


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

Note: In determining whether a crime involves moral turpitude, it is the nature of the offense is
considered.
P a g e | 27

Negligence cases under the Revised Penal Code do not involve moral turpitude EXCEPT if it is
so reckless amounting to malicious conduct.

Crimes under Special Laws also involve moral turpitude like violation of BP 22, vote buying,
election offenses.

b. Concealment (there must be bad faith) 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 a STD, regardless of its nature, existing at the time of the marriage.

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


time of the marriage.

Note: 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.

4. Vitiated Consent by Force, Intimidation or Undue influence - That the consent of either party was
obtained 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.

FORCE – there is actual physical coercion and serious or irresistible force is employed.

INTIMIDATION - when one of the contracting parties is compelled by a reasonable and well-
grounded fear of imminent and grave evil upon his person or property, or upon the person or property
of his spouse, descendants or ascendants, to give his consent.

The marriage cannot be annulled on the ground of intimidation if the threat is to enforce one’s claim,
which is just or legal, through competent authority. To be considered a ground, the threat must be
unjust or illegal.

UNDUE INFLUENCE - when a person takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of choice.

5. Impotency - That either party was physically incapable of consummating the marriage with the
other and such incapacity continues and appears to be incurable.

Requisites for physical incapacity:


a. That the incapacity exists at the time of the celebration of the marriage.
b. That such incapacity continues to the time when the case for annulment is being tried.
c. That it appears to be incurable.
d. It must be unknown to the other contracting party.

The physical incapacity referred to by law as a ground for annulment of marriage is Impotency.

IMPOTENCY – inability of the male or female organ of copulation to perform its proper function. It is
the physical condition of the husband or the wife in which sexual intercourse with a normal person of
the opposite sex is impossible. It is the lack of power to copulate, the absence of the functional
capacity for the sexual ac.

Test of Impotency

It is the inability to copulate and not the inability to procreate.

Impotentia Copulandi vs Impotentia Generandi


P a g e | 28

Impotentia Copulandi is the physical impotency or inability to copulate and considered as a ground for
annulment of a voidable marriage. Impotentia Generandi on the other hand is known as sterility or the
inability to procreate. In sterility, there is capacity to copulate which is absent in impotency.

Relative/Temporary impotency – is where a person is impotent with respect to his or her spouse
but not with another woman or man. Under the Family Code, relative impotency may be invoked as
ground for annulment of marriage in view of the physical incapability of one party to consummate said
marriage with the other.

Potency is presumed

Potency is presumed unless the person is too old for normal sexual activity. Impotency being an
abnormal conditions should not be presumed.

Burden of Proof

He who claims impotency must prove the claim because the presumption is in favor of potency.

Doctrine of triennial cohabitation - if the wife remains virgin after living together with her husband
for 3 years from the time of marriage, the presumption is that the husband is impotent, and he will
have to overcome this presumption.

Note: NO ratification by free cohabitation in cases of absolute impotency because there could be no
cohabitation as consummation of the marriage is not possible. However, estoppel is applicable.
Knowledge of impotency at the time of marriage will negate annulment of marriage.

6. Affliction of STD - That either party was afflicted with a STD (Sexually-transmissible disease)
found to be serious and appears to be incurable (e.g. Hepatitis B and C are STD and serious while
Hepatitis A is not STD)

Requisites:
a. Disease must be existing at the time of marriage
b. The disease must be STD
c. STD must be Serious
d. STD appears to be incurable

Affliction of STD as a ground for annulment Under Article 45 (6) v. Affliction of STD as
constituting fraud under Article 46 (3).

Art. 45 (6) Art. 46 (3)


One party is afflicted
One party is afflicted
with a STD found to
with a STD
be serious and
regardless of its
appears to be
nature
incurable
The disease is present The disease is
at the time of the present at the time of
marriage the marriage
Concealment is
immaterial; the
disease may be There is concealment
known to the other
party

Note: No ratification by free cohabitation in STD.


P a g e | 29

Ratification/Convalidation of Voidable Mariiage, Modes

1. Free Cohabitation

To What Marriages Applicable

a. In marriage where there is lack of parental consent – after attaining the age of 21

b. In marriage where one is of unsound mind – after coming to reason

c. In marriage where consent is obtained by fraud – after having full knowledge of the facts
constituting fraud

d. In marriage where the consent is obtained by force, intimidation – after force, intimidation or
undue influence has disappeared.

Cohabitation, How Proven


a. After knowledge of the defect, the party who is entitled to file an action, freely discharges his/her
marital obligations.
b. Consummation of marriage, after knowledge of the defect.

Effects of Ratification – extinguishment of the right of action for annulment of a voidable marriage.

Note: If the ground is impotency or affliction of STD, there is no ratification to speak of since the
defect is permanent. They can be convalidated only by prescription.

2. Prescription (See the Table Below)

Action for Annulment of Marriage

Who May Bring and Within What Period (Art 47; AM 02-11-10-SC)

Grounds Persons who may Prescriptive period interval


sue Injured party Within 5 years after
Lack of The party who lacks Within 5 years after Fraud the discovery of the
parental parental consent reaching the age of fraud
consent 21 Force, Injured party Within 5 years from
Lack of The parent, legal At anytime before the intimidation the time the grounds
parental guardian or person party who lacks or undue stated ceased
consent having substitute parental consent influence
parental authority reaches 21 Physical Injured party. If both
who did not give incapability are impotent, no one Within 5 years after
consent, in that order can file because there the marriage
Sane spouse (no At anytime before the is no injured party.
Insanity knowledge of the death of either party Affliction of Within 5 years after
Injured party
ground) STD the marriage
Insanity Relatives, guardians At anytime before the
or person having death of either party
legal charge of the
insane
Insanity Insane spouse During sanity or lucid

When Actions for Annulment will not Prosper


a. If persons other than those specified by law filed the case.
b. When the action was filed after prescription had set in.
c. When the injured party freely cohabited with the other as husband and wife.

Where to File the Petition


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The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent
has been residing for at least 6 months prior to the date of the filing or in the case of non-resident
respondent, where he may be found in the Philippines, at the election of the petitioner.

Appearance of the State (Art 48 – See Discussion Above, Same in Declaration of Nullity of
Marriage)

Right to Support and Custody During Pendency of Action (Same in Declaration of nullity of
marriage)

Necessity of Final Judgment / Requirements for Remarriage (Same in declaration of Nullity of


marriage)

Art 40 which speaks of absolute nullity includes annulment of marriage. Thus, the necessity of judicial
declaration for purposes of remarriage.

When Decree of Annulment of Marriage be Issued by the Court (same in declaration of nullity
marriage)

The court shall issue the decree after:


1. Registration of the entry of judgment granting the petition for declaration of nullity or annulment of
marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place
where the Family Court is located.
2. Registration of the approved partition and distribution of the properties of the spouses in the proper
Register of Deeds where the real properties are located.
3. The delivery of the children’s presumptive legitimes in cash, property or sound securities. (S22, A.M.
No. 02-18-10-SC)

Note: The Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place
where the Family is situated, and in the National Census and Statistics Office is the vest evidence to
prove declaration of absolute nullity or to serve as notice to 3 rd person concerning the properties of the
spouses as well as presumptive legitimes delivered to the common children.

If there are no properties of the spouses which could be the subject of liquidation, partition and
distribution, there is NO need for the recording of the judgment in the appropriate registries of property.
Our governing laws do not require such judgment to be furnished and recorded in the proper registries of
property.

Effects of Annulment (Same in Nullity)

Status of Children Born of Voidable Marriage

Children conceived OR born before the judgment of annulment shall be considered legitimate.

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