FAMILY CODE OF THE PHILIPPINES

REVIEWER

What is Marriage?
It 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, Family
Code).

Case Doctrines:

Section 12, Art. II, Constitution

The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life of
the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of
the Government.

PT&T vs. NLRC, G.R. No. 118978, May 23, 1997

In the case at bar, petitioners policy of not accepting or considering as disqualified from work
any woman worker who contracts marriage runs afoul of the test of, and the right against,
discrimination, afforded all women workers by our labor laws and by no less than the
Constitution. Contrary to peti-tioners as sertion that it dismissed private respondent from
employment on account of her dishonesty, the record discloses clearly that her ties with the
company were dissolved principally because of the companys policy that married women are
not qualified for employment in PT&T, and not merely because of her supposed acts of
dishonesty, and while it is true that the parties to a contract may establish any agreements,
terms and conditions that they may deem convenient, the same should not be contrary to law,
morals, good customs, public order or public policy.

Goitia vs. Campos-Rueda, G.R. No. 11263, Nov. 2, 1916

Marriage: What is the nature of the obligation?
Marriage is something more than a contract, though founded upon the agreement of the parties.
When once formed a relation is created between the parties, which they cannot change by
agreement, and the rights and obligations of which depend not upon their agreement but upon
the law. The spouses must be faithful to, assist, support, and live with each other.

Balogbog vs. CA, G.R. No. 83598, March 7, 1997

Under the Rules of Court, the presumption is that a man and a woman conducting themselves
as husband and wife are legally married. This presumption may be rebutted only by cogent
proof to the contrary. Although a marriage contract is considered primary evidence of marriage,
the failure to present it is not proof that no marriage took placeother evidence may be
presented to prove marriage.

In Pugeda v. Trias, the defendants, who questioned the marriage of the plaintiffs, produced a
photostatic copy of the record of marriages of the Municipality of Rosario, Cavite for the month
of January, 1916, to show that there was no record of the alleged marriage. Nonetheless,
evidence consisting of the testimonies of witnesses was held competent to prove the marriage.
Indeed, although a marriage contract is considered primary evidence of marriage, the failure to
present it is not proof that no marriage took place. Other evidence may be presented to prove
marriage. Here, private respondents proved, through testimonial evidence, that Gavino and
Catalina were married in 1929; that they had three children, one of whom died in infancy; that
their marriage subsisted until 1935 when Gavino died; and that their children, private
respondents herein, were recognized by Gavinos family and by the public as the legitimate
children of Gavino.

What are the Essential Requisites of Marriage?

1. Legal Capacity of the Contracting Parties who must be a male and a female; and
2. Consent freely given in the presence of the solemnizing officer.

What are the Formal Requisites of Marriage?

1. Authority of the Solemnizing Officer;
2. A valid marriage license, except in the cases provided for in Chapter 2 of this Title; and
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Chapter 2. Marriages Exempted from License Requirement

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

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

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

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

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

Art. 32. A military commander of a unit, who is a commissioned officer, shall

likewise have authority to solemnize marriages in articulo mortis between
persons within the zone of military operation, whether members of the armed
forces or civilians. (74a)

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

Art. 34. No license shall be necessary for the marriage of a man and a woman
who have lived together as husband and wife for at least five years and without
any legal impediment to marry each other. The contracting parties shall state the
foregoing facts in an affidavit before any person authorized by law to administer
oaths. The solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the
marriage. (76a)

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

What is the effect of the absence of any of the essential or formal requisites?
It will render the marriage void ab initio, except as stated in Article 35(2).

Article 35(2) states, 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.

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What is the effect if there is a defect in any of the essential requisites?

It shall render the marriage voidable as provided in Article 45.

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

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

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

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

4) That the consent of either party 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;

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

6) That either party was afflicted with a sexually-transmissible disease found to be

serious and appears to be incurable. (85a)

What if there is an irregularity in the formal requisites?

It shall not affect the validity of the marriage, but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.

Who may contract marriage?

According to Article 5, any male or female, 18 years of age or upwards, and not under any of
the impediments mentioned in Articles 37 and 38, may contract marriage.

Art. 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)

Art. 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;

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(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. (82)

Is there a prescribed form or religious rite for the solemnization of marriage? If there is
none, what shall be necessary?
There is no prescribed form or religious rite for the solemnization of marriage. 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 their witnesses and attested by the solemnizing
officer (Art. 6, par. 1).

In case of a marriage in articulo mortis, what can the dying party do if he is unable to
sign the marriage certificate?
It shall be sufficient for one of the witnesses to the marriage to write the name of the said party,
which fact shall be attested by the solemnizing officer (Art. 6, par. 2).

Case Doctrines:

Enriquez vs. Velez, G.R. No. 86470, May 17, 1990, 185 SCRA 425
Indeed, Philippine Law does not recognize common law marriages. A man and woman not
legally married who cohabit for many years as husband and wife, who represent themselves to
the public as husband and wife, and who are reputed to be husband and wife in the community
where they live may be considered legally married in common law jurisdictions but not in the
Philippines.

Cosca vs. Palaypayon, Jr., 237 SCRA 249, Sept. 30, 1994
On the charge regarding illegal marriages, the Family Code pertinently provides that the formal
requisites of marriage are, inter alia, a valid marriage license except in the cases provided for
therein.7 Complementarily, it declares that the absence of any of the essential or formal
requisites shall generally render the marriage void ab initio and that, while an irregularity in the
formal requisites shall not affect the validity of the marriage, the party or parties responsible for
the irregularity shall be civilly, criminally and administratively liable.

The civil aspect is addressed to the contracting parties and those affected by the illegal
marriages, and what we are providing for herein pertains to the administrative liability of
respondents, all without prejudice to their criminal responsibility. The Revised Penal Code
provides that (p)riests or ministers of any religious denomination or sect, or civil authorities who
shall perform or authorize any illegal marriage ceremony shall be punished in accordance with
the provisions of the Marriage Law. This is of course, within the province of the prosecutorial
agencies of the Government.

Wassmer vs. Velez, G.R. No. L-20089, 12 SCRA 648, Dec. 26, 1964
Ordinarily, a mere breach of promise to marry is not an actionable wrong. But to formally set a
wedding and go through all the necessary preparations and publicity, only to walk out of it when
the matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably
contrary to good customs, for which the erring promissor must be held answerable in damages
in accordance with Article 21 of the New Civil Code. When a breach of promise to marry is
actionable under Article 21 of the Civil Code, moral damages may be awarded under Article
2219(10) of the said Code. Exemplary damages may also be awarded under Article 2232 of
said Code where it is proven that the defendant clearly acted in a wanton, reckless and
oppressive manner.

Who can solemnize marriage?

1. Any incumbent member of the judiciary within the courts jurisdiction;
2. Any priest, rabbi, imam, or minister of any church or religious sec duly authorized by his
church or religious sect and registered with the civil registrar general, acting within the
limits of the written authority granted him by his church or religious sect and provided

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that at least one of the contracting parties belongs to the solemnizing officers church or
religious sect;
3. Any ship captain or airplane chief only in the cases mentioned in Article 31;
a. Art. 31. A marriage in articulo mortis between passengers or crew members may
also be solemnized by a ship captain or by an airplane pilot not only while the
ship is at sea or the plane is in flight, but also during stopovers at ports of call.
4. Any military commander of a unit to which a chaplain is assigned, in the absence of the
latter, during a military operation, likewise only in the cases mentioned in Article 32; or
a. Art. 32. A military commander of a unit, who is a commissioned officer, shall
likewise have authority to solemnize marriages in articulo mortis between
persons within the zone of military operation, whether members of the armed
forces or civilians.
5. Any consul-general, consul or vice-consul in the case provided in Article 10.
a. Art. 10. Marriages between Filipino citizens abroad may be solemnized by a
consul-general, consul or vice-consul of the Republic of the Philippines. The
issuance of the marriage license and the duties of the local civil registrar and of
the solemnizing officer with regard to the celebration of marriage shall be
performed by said consular official.
6. Chief executives of a municipality or city, in accordance with the Local Government
Code.

Case Doctrines:

Navarro vs. Domagtoy, 259 SCRA 129, A.M. No. MTJ-96-1088, July 19, 1996
There is nothing ambiguous or difficult to comprehend in this provision. In fact, the law is clear
and simple. Even if the spouse present has a well-founded belief that the absent spouse was
already dead, a summary proceeding for the declaration of presumptive death is necessary in
order to contract a subsequent marriage, a mandatory requirement which has been precisely
incorporated into the Family Code to discourage subsequent marriages where it is not proven
that the previous marriage has been dissolved or a missing spouse is factually or presumptively
dead, in accordance with pertinent provisions of law.

In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the declaration
of his first wifes presumptive death. Absent this judicial declaration, he remains married to Ida
Pearanda. Whether wittingly or unwittingly, it was manifest error on the part of respondent
judge to have accepted the joint affidavit submitted by the groom. Such neglect or ignorance of
the law has resulted in a bigamous, and therefore void, marriage. Under Article 35 of the Family
Code, The following marriage shall be void from the beginning; (4) Those bigamous x x x
marriages not falling under Article 41.

What does Article 8 say?

The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the
church, chapel or temple, or in the office the consul-general, consul or vice-consul, as the case
may be, and not elsewhere, except in cases of marriages contracted on the point of death or in
remote places in accordance with Article 291 of this Code, or where both of the parties request
the solemnizing officer in writing in which case the marriage may be solemnized at a house or
place designated by them in a sworn statement to that effect.

What is the meaning of Article 8? Does it alter or qualify the authority of the solemnizing
officer? Will the non-compliance with it invalidate the marriage?
Under Article 3, one of the formal requisites of marriage is the authority of the solemnizing
officer. Under Article 7, marriage may be solemnized by, among others, any incumbent
member of the judiciary within the courts jurisdiction. Article 8, which is a directory provision,
refers only to the venue of the marriage ceremony and does not alter or qualify the authority of

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

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the solemnizing officer as provided in the preceding provision. Non-compliance herewith will not
invalidate the marriage (Navarro vs. Domagtoy, 259 SCRA 129, A.M. No. MTJ-96-1088 July 19,
1996).

What are the instances where a marriage can be held outside of the judges chambers or
courtroom?
A marriage can be held outside of the judges chambers or courtroom only in the following
instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or (3)
upon request of both parties in writing in a sworn statement to this effect (Navarro vs.
Domagtoy, 259 SCRA 129, A.M. No. MTJ-96-1088 July 19, 1996).

What is the effect if a judge solemnizes a marriage outside of his jurisdiction? Is the rule
the same with respect an appellate court justice or a Justice of the Supreme Court, or a
priest of the Roman Catholic Church? Discuss.
A priest who is commissioned and allowed by his local ordinary to marry the faithful, is
authorized to do so only within the area of the diocese or place allowed by his Bishop. An
appellate court Justice or a Justice of this Court has jurisdiction over the entire Philippines to
solemnize marriages, regardless of the venue, as long as the requisites of the law are complied
with. However, judges who are appointed to specific jurisdictions, may officiate in weddings only
within said areas and not beyond. Where a judge solemnizes a marriage outside his courts
jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3, which
while it may not affect the validity of the marriage, may subject the officiating official to
administrative liability (Navarro vs. Domagtoy, 259 SCRA 129, A.M. No. MTJ-96-1088 July 19,
1996).

Araes vs. Occiano, 380 SCRA 402, A.M. No. MTJ-02-1390 April 11, 2002
Under the Judiciary Reorganization Act of 1980, or B.P. 129, the authority of the regional trial
court judges and judges of inferior courts to solemnize marriages is confined to their territorial
jurisdiction as defined by the Supreme Court. Where a judge solemnizes a marriage outside the
courts jurisdiction, there is a resultant irregularity in the formal requisite laid down in Article 3,
which while it may not affect the validity of the marriage, may subject the officiating official to
administrative liability.

In People vs. Lara, we held that a marriage which preceded the issuance of the marriage
license is void, and that the subsequent issuance of such license cannot render valid or even
add an iota of validity to the marriage. Except in cases provided by law, it is the marriage license
that gives the solemnizing officer the authority to solemnize a marriage. Respondent judge did
not possess such authority when he solemnized the marriage of petitioner. In this respect,
respondent judge acted in gross ignorance of the law.

Who issues a marriage license?

According to Article 9, the local civil registrar of the city or municipality where either contracting
party habitually resides shall issue a marriage license, except in marriages where no license is
required in accordance with Chapter 2.

Chapter 2. Marriages Exempted from License Requirement

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

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

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

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

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

Art. 32. A military commander of a unit, who is a commissioned officer, shall

likewise have authority to solemnize marriages in articulo mortis between
persons within the zone of military operation, whether members of the armed
forces or civilians. (74a)

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

Art. 34. No license shall be necessary for the marriage of a man and a woman
who have lived together as husband and wife for at least five years and without
any legal impediment to marry each other. The contracting parties shall state the
foregoing facts in an affidavit before any person authorized by law to administer
oaths. The solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the
marriage. (76a)

If a marriage license is required, what shall the contracting parties file? To whom shall
they file it? What shall be its specifications?
According to Article 11, where a marriage license is required, each of the contracting parties
shall file separately a sworn application for such license with the proper local civil registrar which
shall specify the following:

1) Full name of the contracting party;

2) Place of birth;
3) Age and date of birth;
4) Civil status;
5) If previously married, how, when and where the previous marriage was dissolved or
annulled;
6) Present residence and citizenship;
7) Degree of relationship of the contracting parties;
8) Full name, residence and citizenship of the father;
9) Full name, residence and citizenship of the mother; and
10) Full name, residence and citizenship of the guardian or person having charge, in case
the contracting party has neither father nor mother and is under the age of twenty-one
years.

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

If the contracting parties are citizens of a foreign country, what must they submit before
they can obtain a marriage license in the Philippines?
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 (Article
21, Family Code).

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What about stateless persons or refugees from other countries?

Stateless persons or refugees from other countries shall, in lieu of the certificate of legal
capacity herein required, submit an affidavit stating the circumstances showing such capacity to
contract marriage (Article 21, par. 2).

What is Article 22?

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

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

2) Their citizenship, religion and habitual residence;
3) The date and precise time of the celebration of the marriage;
4) That the proper marriage license has been issued according to law, except in 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.

What is Article 25?

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

What is the effect if the marriage license is absent?

The law provides that no marriage shall be solemnized without a marriage license first issued by
a local civil registrar. Being one of the essential requisites of a valid marriage, absence of a
license would render the marriage void ab initio (Republic vs. Court of Appeals, 236 SCRA 257,
G.R. No. 103047 September 2, 1994).

The civil registrar issued a Certification of Due Search and Inability to find the marriage
license of the parties. Does it enjoy a probative value? Does it sufficiently prove that the
office did not issue a particular marriage license?
Yes. The certification of due search and inability to find issued by the civil registrar enjoys
probative value, he being the officer charged under the law to keep a record of all data relative
to the issuance of a marriage license (Republic vs. Court of Appeals, 236 SCRA 257, G.R. No.
103047 September 2, 1994).

What is meant by secret marriage?

Secret marriage is legally a non-existent phrase but ordinarily used to refer to a civil marriage
celebrated without the knowledge of the relatives and/or friends of either or both of the
contracting parties. The records show that the marriage between Castro and Cardenas was
initially unknown to the parents of the former (Republic vs. Court of Appeals, 236 SCRA 257,
G.R. No. 103047 September 2, 1994).

State Article 26 of the Family Code

Art. 26. 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 prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive
Order 227)

Correlation: Articles 15 and 17 of the Civil Code

Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity
of persons are binding upon citizens of the Philippines, even though living abroad.

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Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be
governed by the laws of the country in which they are executed.

When the acts referred to are executed before the diplomatic or consular officials of the
Republic of the Philippines in a foreign country, the solemnities established by Philippine laws
shall be observed in their execution.

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.

Case Doctrines:

Garcia vs. Recio, G.R. No. 138322, October 2, 2001

Do Philippine Laws provide for absolute divorce?

No, Philippine laws do not provide for absolute divorce. Hence, the courts cannot grant it.

Can a marriage between two Filipinos be dissolved even by a divorce obtained abroad?
No, because of Articles 15 and 17 of the Civil Code.

What about in mixed marriages involving a Filipino and a foreigner?

Article 26 of the Family Code allows a party to contract a subsequent marriage in case the
divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry.

May a divorce decree obtained abroad by a couple, who are both aliens, be recognized in
the Philippines?
Yes, it if its consistent with their respective national laws.

Before a foreign divorce decree can be recognized in the Philippines, what must first be
done?
The party pleading it must prove the divorce as a fact, according to the Rules on Evidence, and
demonstrate its conformity to the foreign law allowing it. Presentation solely of the divorce
decree is insufficient.

What is the effect of the absence of a certificate of legal capacity?

The absence of a certificate of legal capacity is merely an irregularity in complying with the
formal requirements for procuring a marriage license, an irregularity which will not affect the
validity of a marriage celebrated on the basis of a marriage license issued without that
certificate.

Assuming there is a divorce decree. Does it ipso facto cloth a divorcee with legal
capacity to remarry?
A divorce decree does not ipso facto clothed a divorcee with the legal capacity to remarryhe
must still adduce sufficient evidence to show the foreign States personal law governing his
status, or at the very least, he should still prove his legal capacity to contract the second
marriage.

Pilapil vs. Ibay-Somera, 174 SCRA 653, G.R. No. 80116

Can the divorce decree obtained in the Federal Republic of Germany be admitted in the
Philippines?
In the present case, the fact that private respondent obtained a valid divorce in his country, the
Federal Republic of Germany, is admitted. Said divorce and its legal effects may be recognized
in the Philippines insofar as private respondent is concerned in view of the nationality principle
in our civil law on the matter of status of persons.

After a divorce has been decreed, does the innocent spouse still has the right to institute
proceedings against the offender?
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari materia
with ours, yields the rule that after a divorce has been decreed, the innocent spouse no longer
has the right to institute proceedings against the offenders where the statute provides that the
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innocent spouse shall have the exclusive right to institute a prosecution for adultery. Where,
however, proceedings have been properly commenced, a divorce subsequently granted can
have no legal effect on the prosecution of the criminal proceedings to a conclusion.

Since the private respondent is no longer the husband of the petitioner, does the
petitioner still has the right to commence the adultery case?
Since the private respondent is no longer the husband of petitioner, he has no legal standing to
commence the adultery case under the imposture that he was the offended spouse at the time
he filed suit.

Case Doctrines under Marriages Exempt from License Requirement (Arts. 27-34)

Ninal vs. Bayadog, G.R. No. 133778, March 14, 2000

A valid marriage license is a requisite of marriage under Article 53 of the Civil Code, the
absence of which renders the marriage void ab initio pursuant to Article 80(3) in relation to
Article 58. The requirement and issuance of marriage license is the States demonstration of its
involvement and participation in every marriage, in the maintenance of which the general public
is interested. This interest proceeds from the constitutional mandate that the State recognizes
the sanctity of family life and of affording protection to the family as a basic autonomous social
institution. Specifically, the Constitution considers marriage as an inviolable social institution,
and is the foundation of family life, which shall be protected by the State. This is why the Family
Code considers marriage as a special contract of permanent union and case law considers it
not just an adventure but a lifetime commitment.

What are the instances wherein a marriage license is dispensed with?

There are several instances recognized by the Civil Code wherein a marriage license is
dispensed with, one of which is that provided in Article 76, referring to the marriage of a man
and a woman who have lived together and exclusively with each other as husband and wife for
a continuous and unbroken period of at least five years before the marriage. The rationale why
no license is required in such case is to avoid exposing the parties to humiliation, shame and
embarrassment concomitant with the scandalous cohabitation of persons outside a valid
marriage due to the publication of every applicants name for a marriage license. The publicity
attending the marriage license may discourage such persons from legitimizing their status. To
preserve peace in the family, avoid the peeping and suspicious eye of public exposure and
contain the source of gossip arising from the publication of their names, the law deemed it wise
to preserve their privacy and exempt them from that requirement.

What is the effect of a marriage that is subsequently contracted during the lifetime of the
first spouse?
It shall be illegal and void, subject to the exception in cases of absence or where the prior
marriage was dissolved or annulled. The Revised Penal Code complements the civil law in that
contracting of two or more marriages and the having of extramarital affairs are considered
felonies, like bigamy and concubinage and adultery. The law sanctions monogamy.

Can void marriages be questioned even after the death of either party? Is the rule the
same with regard to voidable marriages?
The Code is silent as to who can file a petition to declare the nullity of a marriage. Voidable and
void marriages are not identical. A marriage that is annulable is valid until otherwise declared by
the court; whereas a marriage that is void ab initio is considered as having never to have taken
place and cannot be the source of rights. The first can be generally ratified or confirmed by free
cohabitation or prescription while the other can never be ratified. A voidable marriage cannot be
assailed collaterally except in a direct proceeding while a void marriage can be attacked
collaterally. Consequently, void marriages can be questioned even after the death of either party
but voidable marriages can be assailed only during the lifetime of the parties and not after death
of either, in which case the parties and their offspring will be left as if the marriage had been
perfectly valid. That is why the action or defense for nullity is imprescriptible, unlike voidable
marriages where the action prescribes. Only the parties to a voidable marriage can assail it but
any proper interested party may attack a void marriage.

Is a judicial decree necessary in order to establish the nullity of a marriage?

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Jurisprudence under the Civil Code states that no judicial decree is necessary in order to
establish the nullity of a marriage. A void marriage does not require a judicial decree to restore
the parties to their original rights or to make the marriage void but though no sentence of
avoidance be absolutely necessary, yet as well for the sake of good order of society as for the
peace of mind of all concerned, it is expedient that the nullity of the marriage should be
ascertained and declared by the decree of a court of competent jurisdiction.

For purposes of remarriage, is judicial action to declare a marriage an absolute nullity

necessary?
Other than for purposes of remarriage, no judicial action is necessary to declare a marriage an
absolute nullity. For other purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a
criminal case for that matter, the court may pass upon the validity of marriage even in a suit not
directly instituted to question the same so long as it is essential to the determination of the case.
This is without prejudice to any issue that may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose is other than to remarry. The
clause on the basis of a final judgment declaring such previous marriage void in Article 40 of
the Family Code connotes that such final judgment need not be obtained only for purpose of
remarriage.

Void and Voidable Marriages (Articles 35-54)

Domingo vs. CA, G.R. No. 104818, Sept. 17, 1993

Came the Family Code, which settled once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a
cause of action or a ground for defense. Where the absolute nullity of a previous marriage is
sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable
in law for said projected marriage to be free from legal infirmity is a final judgment declaring the
previous marriage void.

Effect of a declaration of absolute nullity of a marriage

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the
protection of the spouse who, believing that his or her marriage is illegal and void, marries
again. With the judicial declaration of the nullity of his or her first marriage, the person who
marries again cannot be charged with bigamy.

Declaration of nullity of marriage carries ipso fact a judgment for the liquidation of
property, custody and support of children
Based on the foregoing provisions, private respondents ultimate prayer for separation of
property will simply be one of the necessary consequences of the judicial declaration of
absolute nullity of their marriage. Thus, petitioners suggestion that in order for their properties
to be separated, an ordinary civil action has to be instituted for that purpose is baseless. The
Family Code has clearly provided the effects of the declaration of nullity of marriage, one of
which is the separation of property according to the regime of property relations governing them.
It stands to reason that the lower court before whom the issue of nullity of a first marriage is
brought is likewise clothed with jurisdiction to decide the incidental questions regarding the
couples properties. Accordingly, the respondent court committed no reversible error in finding
that the lower court committed no grave abuse of discretion in denying petitioners motion to
dismiss SP No. 1989-J.

Article 36

Art. 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)

Republic vs. CA, Molina, G.R. No. 108763, Feb. 13, 1997, 268 SCRA 198

Psychological incapacity must exist at the time the marriage is celebrated

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In Leouel Santos vs. Court of Appeals, this Court, speaking thru Mr. Justice Jose C. Vitug, ruled
that psychological incapacity should refer to no less than a mental (not physical) incapacity x x
x and that (t)here is hardly any doubt that the intendment of the law has been to confine the
meaning of psychological incapacity to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and significance to the
marriage. This psychologic condition must exist at the time the marriage is celebrated. Citing
Dr. Gerardo Veloso, a former presiding judge of the Metropolitan Marriage Tribunal of the
Catholic Archdiocese of Manila, Justice Vitug wrote that the psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence, and (c) incurability.

Is mere showing of irreconcilable differences and conflicting personalities

constitutes psychological incapacity?
No. Mere showing of irreconcilable differences and conflicting personalities in no wise
constitutes psychological incapacity. It is not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that they must be shown to be
incapable of doing so, due to some psychological (not physical) illness.

What are the guidelines in the interpretation and application of Article 36 of the Family
Code?
From their submissions and the Courts own deliberations, the following guidelines in the
interpretation and application of Art. 36 of the Family Code are hereby handed down for the
guidance of the bench and the bar: (1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation
of the marriage and against its dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the Family, recognizing it as the foundation of the
nation. It decrees marriage as legally inviolable, thereby protecting it from dissolution at the
whim of the parties. Both the family and marriage are to be protected by the state.

What is the root cause of psychological incapacity?

The root cause of the psychological incapacity must be: (a) medically or clinically identified, (b)
alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the
decision. Article 36 of the Family Code requires that the incapacity must be psychologicalnot
physical, although its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or psychically ill to such an
extent that the person could not have known the obligations he was assuming, or knowing them,
could not have given valid assumption thereof. Although no example of such incapacity need be
given here so as not to limit the application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a psychological illness and its
incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists
and clinical psychologists.

Incapacity must be proven to be existing at the time of the celebration of the marriage
The incapacity must be proven to exist at the time of the celebration of the marriage. The
evidence must show that the illness existed when the parties exchanged their I dos. The
manifestation of the illness need not be perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.

Incapacity must be shown to be medically or clinically permanent or incurable

Such incapacity must also be shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to
the assumption of marriage obligations, not necessarily to those not related to marriage, like the
exercise of a profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may not be
psychologically capacitated to procreate, bear and raise his/her own children as an essential
obligation of marriage.

The illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage
Such illness must be grave enough to bring about the disability of the party to assume the
essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes,
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occasional emotional outbursts cannot be accepted as root causes. The illness must be shown
as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other
words, there is a natal or supervening disabling factor in the person, an adverse integral
element in the personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to marriage.

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