Marriage Cornell Notes

Marriage
Executive Order No. 209

The Family Code
of the Philippines
Title 1
Marriage
v Signed on July 6, 1987 and took effect on August 3, 1988.

v Published in Manila Chronicle on August 4, 1987. 1988 is a
Preliminary leap year, as such, it took effect on August 3, 1988.
v Code Commission was composed of Justice Jose BL Reyes,
Justice Eduardo Caguioa and Justice Ricardo C. Puno.
Other authors include Justice Alicia Sempio-Diy and Dean
Fortunato Gupit.
While the Constitution protects the Family, it does not establish

The Constitutional the parameters of state protection to marriage and family as this
protection is left to the legislature. The Family Code has established this
though by:
v Defining marriage and family
v Spelling out corresponding legal effects
v Imposing limitations that affect married and family life
v Prescribing the grounds for declaration of nullity.
Chapter 1
REQUISITES OF MARRIAGE
Art. 1. Marriage is a special contract of

perm anent union betw een a m an and a
w om an entered into in accordance w ith the
law for the establishm ent of conjugal and
Marriage fam ily life. It is the foundation of the fam ily
and an inviolable social institution w hose
nature, consequences and incidents are
governed by law and not subject to stipulation
except that m arriage settlem ents m ay fix the
property relations during the m arriage w ithin
the lim its provided by this Code.
While marriage is often termed a civil contract, to indicate that it

Marriage as a special
must be founded upon the agreement of the parties, it is
contract something more than an ordinary contract. It is a special contract
as it is imbued with public interest, being the foundation of family
Bance, Shayne Amor

Xavier University – Ateneo de Cagayan, Class of 2017

Civil Law 44

Upon which society is founded upon. It creates a social status or

relation between the parties in which the State is interested.
1. As a contract:
2 Aspects of Marriage;
a. Marriage is limited to two parties who must be a man and
marriage as a special a woman; in an ordinary contract, parties may be two or
contract v. ordinary more and gender is irrelevant;
contract b. Marriage is a permanent contract, meaning it can only be
dissolved by the death of the other party unless it is
annulled or declared null and void by the court; an
ordinary contract terminates upon the expiration of the
terms set forth in the contract, upon fulfillment of the
conditions entered into, by rescission or by mutual
agreement of the parties;
c. In marriage, the rights and duties of the parties are fixed
by law and not subject to stipulation, except in marriage
settlements; in ordinary contracts, the agreement of the
parties has the force of law between them.
d. Marriage is governed by the law on marriage; while
ordinary contracts are governed by the law on contracts;
e. Legal capacity is required in marriage; in ordinary
contracts, minors may contract through their parents or
guardians.
2. As a status:
v Marriage creates a social status or relation between the
contracting parties. The status that marriage creates is too
much a matter of public concern to allow the parties to
tinker with it according to their own notions of what is
expedient and proper.
v As a status, it can be made a statutory basis for limiting
one’s capacity to act or to acquire property.
In determining the validity of the marriage, it is to be tested by the

law in force at the time the marriage was contracted.
Marriage and the law
v This is highlighted by the fact that marriage already
celebrated cannot be changed by a subsequent
amendment to the law.
Philippine laws on 1988 Family Code ---- August 3, 1988 to present

marriage 1950 Civil Code ----- 1950 – 1988
1929 Marriage Law - 1929 – 1950
A marriage between stepbrother and stepsister is void under the

Illustration 1950 Civil Code. This is no longer void under the Family Code. The
Family Code however, though it repeal the 1950 Civil Code on this
matter, does not change the void nature of the marriage
contracted in 1950. It remains void or nullifiable considering that
the validity of marriage is governed by the law enforced at the time
of the marriage ceremony.
Bance, Shayne Amor


Civil Law 45

The State can find no stronger anchor than on good, solid and
happy families. The break-up of families weakens our social and
An inviolable social moral fabric, and hence, their preservation is not the concern alone
institution of the family members.
State policy on Marriage as a special contract cannot be restricted by

marriage discriminatory policies of private individuals or corporations. As
such, the court has held the following:
v A corporation policy that disqualifies from work any woman
worker who contracts marriage is against state policy as it
runs afoul of the fundamental policy of the State toward
marriage. (PT&T v. NLRC)
o Except when it is undertaken as a legitimate
business concern. (Duncan v. Glaxo)
v Mail order brides
v Trafficking in women
Art. 2. No m arriage shall be valid, unless these

essential requisites are present:
Essential requisites (1) Legal capacity of the contracting parties
w ho m ust be a m ale and a fem ale;
(2) Consent freely given in the presence of
the solem nizing officer.
Art. 3. The form al requisites of m arriage are:

(1) Authority of the solem nizing officer;
Formal requisites (2) A valid m arriage license except in cases
provided for in Chapter 2 of this Title;
and
(3) A m arriage cerem ony w hich takes place
w ith the appearance of the contracting
parties before the solem nizing officer
and their personal declaration that they
take each other as husband and w ife in
the presence of not less than tw o
w itnesses of legal age.
Essential requisites (1) Legal Capacity

(2) Consent freely given
Legal capacity in relation with Art. 5, means that the parties must
Legal capacity, def. be:
(a) at least 18 years of age; and
(b) are not barred by any impediment to marry each other.
(c) The parties must be male and female.
Bance, Shayne Amor


Civil Law 46

Who may contract 1. Persons who have legal capacity:

marriage? v Has reached the age of majority
v Must not be limited by family relations (i.e. not married) or
with no legal impediments.
2. Parties must not be related to each other in a manner provided
by Art. 37 (incestuous marriages) and Art. 38 (void marriages
for reasons of public policy);
3. Parties must be of different sex.
No. Gender is determined at birth and is immutable. The mere

Will sex change allow removal of the male organ would not itself change a person into a
parties to marry? true female (anonymous v. anonymous), and corollary thereto,
hormone surgery and treatments would not successfully supply a
person with the necessary apparatus to enable the person to be a
man for the purpose of procreation.
Furthermore, no law validly recognizes sex reassignment in
the Philippines. As such, any marriage either contracted abroad or
in the country between Filipinos of the same sex, is considered
invalid or void.
Consent, def. Means the consent of the contracting parties, and not parental
consent. This is basically conformity or agreement. Consent is
required because marriage is a contract that requires a voluntary
act.
Two requirements of (1) Must be freely given

consent v Connotes that the contracting parties willingly and
deliberately entered into marriage; and that they were
capable of intelligently understanding the nature and
consequences of the act.
v Consent need not be expressed in a special manner, i.e.
that it should be vocalized, so long as there is a
manifestation that the contracting parties take each
other as husband and wife.
o As such, the Court held that where the
solemnizing officer failed to ask the male if he
takes the female as his wife but the former
nevertheless signs the marriage contract; his
act of signing the marriage contract constitutes
agreement. (Karganilla v. Familiar; Infante v.
Arenas)
(2) Must be made in the presence of the solemnizing officer.

v Consent of the state is duly given through a solemnizing
officer duly authorized by the law.
v This requirement excludes common-law marriages and
proxy marriages as parties need to personally appear;
also, this will give the party who is merely being forced,
intimidated or pressured into marriage an opportunity to
inform the solemnizing officer of such fact so that the
marriage ceremony may be suspended or stopped.
Bance, Shayne Amor


Civil Law 47

(a) Authority of the Solemnizing Officer;

Essential requisites (b) Valid marriage license, except in exceptional
marriages/marriages exempt from marriage license in Chapter
2 of this Title.
(c) Marriage ceremony where both parties appear before the
solemnizing officer and declare that they take each other as
husband and wife in the presence of no less than two
witnesses of legal age.
Means that the officiating officer must be clothed with the power
Authority of solemnizing
to marry.
officer, def.
This is the written permission issued by the the civil registrar to the
Marriage license, def. contracting parties authorizing their marriage before any
authorized solemnizing officer. In brief, it is the authority to marry.
Marriage license, v License is only valid for 120 days and only within the
principles Philippines.
v The license must be valid, in which case the marriage is void.
Marriages exempt from (a) Marriages in articulo mortis (Art. 27)

marriage license (b) Marriages in remote places (Art. 28)
requirement (c) Marriage during voyage (Art. 31)
(d) Marriages within zones of military operations (Art. 32)
(e) Marriages among muslims and other cultural commmunities
(f) Marriages after cohabiting for five years. (Art. 34)
Marriage ceremony, Means the solemnization of the marriage. The Philippines only
def. recognizes ceremonial marriages, meaning marriages, which are
solemnized by persons duly authorized by the State.
The Family Code does not provide or prescribe a particular form of

No form prescribed
marriage ceremony so long as the minimum requirement (see
above) imposed by law is met.
Common-law A non-ceremonial or informal marriage by agreement, entered into

marriage, def. by a man and a woman having capacity to marry, ordinarily
without compliance with statutory formalities as those pertaining to
marriage license. Such agreement must be coupled by
consummation, which includes cohabitation as husband and wife.
Common law marriages are not recognized in the PH. This is

Common-law
because the State makes the authority of the solemnizing officer
marriages, not
an indispensable requisite for a valid marriage in the PH.
recognized in PH
Bance, Shayne Amor


Civil Law 48

Is marriage certificate
a requisite of No. A marriage certificate is not an essential or formal requisite of
marriage? marriage. As such, its absence would not affect the validity of the
marriage. It is however the best evidence to prove marriage.
Art. 4. The absence of any of the essential or

form al requisites shall render the m arriage void
Absence and defects in ab initio except as stated in Article 35 (2).
requisites A defect in any of the essential requisites
shall render the m arriage voidable as provided
in Art. 45.
An irregularity in the form al requisites shall
not affect the validity of the m arriage but the
party or parties responsible for the irregularity
shall be civilly, crim inally and adm inistratively
liable.
v Absence of any of the essential or formal requisites would

Effect of absence and render the marriage void ab initio.
defect in requisites v Defect in the essential requisites will render the marriage
voidable, or valid until terminated.
v Defect/irregularity in the formal requisites will not affect the
validity of the marriage but the party responsible for
irregularity may be held liable.
Defect v. Irregularity, A defect is an irregularity but not every irregularity is a defect. As

distinguished such, defects usually apply to essential requisites and irregularities
to formal requisites.
Absence (Void) Defect (Voidable) Irregularity (Valid)

Illustration
a. Legal capacity
a. Any one of the No parental consent No parental advice
parties is
below 18
b. Parties are of
the same sex
c. Parties are
first-degree
cousins
b. Consent freely given
a. Consent was Vitiated consent Consent was not
not given vocalized/asked
b. Marriage in during ceremony
jest
c. Authority of solemnizing officer
a. solemnized Absence in the
by retired authority of the
judge solemnizing officer
b. solemnized is only an
outside irregularity when
territorial parties are in good
jurisdiction faith.
Bance, Shayne Amor


Civil Law 49

d. Valid marriage license

a. No license Marriage was not
b. Expired license applied for in
c. Spurious domicile
affidavit
Error in spelling
e. Marriage ceremony
Common-law No parental advice
marriage No marriage
counselling
No declaration
No witnesses
No. A secret marriage is a legally non-existent phrase that

Is there such a thing as ordinarily applies to civil marriages celebrated without the
a secret marriage? knowledge of the relatives or friends of the spouses. The fact alone
that a third party, the solemnizing officer, solemnized the marriage
already makes public the act.
Is absence of witnesses Although significant amendments in the Family Code making a

tantamount to absence double reference to the requirement of witnesses of legal age
of the formal seem to indicate that the presence of two witnesses of legal age
requirement of are determinative of the presence of a marriage ceremony; the
marriage ceremony or absence of witnesses however is considered to be merely an
merely an irregularity? irregularity and does not affect the validity of the marriage.
It is argued that while there were no witnesses, there was
still a marriage ceremony where the principal contracting parties
and the solemnizing officer were present but only that it was
deficient in the absence of witnesses. In short, a marriage
ceremony, though inadequate, was not strictly absent so as to
consider the marriage void under Art. 4 of the Family Code.
The law and public policy favor matrimony. Consequently,
every intendment of the law leans towards legalizing matrimony.
Art. 5. Any m ale or fem ale of the age of 18 or

upw ards not under any of the im pedim ents
Legal capacity m entioned in Art. 37 and 38, m ay contract
m arriage.
Art. 6. No prescribed form or religious rite for

the solem nization of the m arriage is required. It
shall be necessary, how ever, for the
Formalities contracting parties to appear personally
before the solem nizing officer and declare in
the presence of not less than 2 w itnesses of
legal age that they take each other as husband
and w ife. This declaration shall be contained in
the m arriage certificate w hich shall be signed
by the contracting parties and their w itnesses,
Bance, Shayne Amor


Civil Law 50

And attested by the solem nizing officer.

In case of a m arriage in articulo mortis ,
w hen the party at the point of death is unable
to sign the m arriage certificate, it shall be
sufficient for one of the w itnesses to the
m arriage to w rite the nam e of said party,
w hich fact shall be attested by the solem nizing
officer.
It is only the appearance of both parties before the solemnizing

Effect of lack of other officer that is the formal requirement. All other requirements in this
requirements article will not render the marriage void even if they are totally
lacking, such as:
v No witnesses
v No oral declaration of taking each other as husband and
wife.
v No marriage certificate
Art. 7. Marriage m ay be solem nized by:

(1) any incum bet m em ber of the judiciary
w ithin the court’s jurisdiction;
Solemnizing Officers (2) any priest, rabbi, im am or m inister of any
church or religious sect duly authorized by
his church or religious sect and registered
w ith the civil register general, acting
w ithin the lim its of the w ritten authority
granted him by his church or religious sect
and provided that at least one of the
contracting parties belong to the
solem nizing officer’s church or religious
sect;
(3) any ship captain or airplaine chief only in
the cases m entioned in Art. 31;
(4) any m ilitary com m ander of a unit to
w hich a chaplain is assigned, in the
absence of the latter, during a m ilitary
operation, likew ise only in the cases
m entioned in Article 32; or
(5) Any consul-general, consul or vice-consul
in the cases provided in Art. 10.
(6) Mayors in accordance w ith the Local
Governm ent Code.
Enumeration is exclusive By the principle of inclusio unius, exclusio est alterius, even the
President of the Philippines, Chief of Staff or Senators, no officer
no matter how high the position may solemnize the marriages.
Effect of absence of
authority of solemnizing Generally, a marriage is void on the ground of absence of a formal
officer requirement which is authority of the solemnizing officer.
Bance, Shayne Amor


Civil Law 51

Jurisdiction of the Courts

v Supreme Court (national)
Judges v Court of Appeals (national)
v Court of Tax Appeals (national)
v Sandiganbayan (national)
v Regional Trial Courts (13 in total, including NCR and MM)
v Metropolitan Trial Courts, Municipal Trial Courts (each city
or municipality) and Municipal Circuit Trial Courts in each
circuit of cities and municipalities grouped together by law.
The jurisdiction of regional trial court judges and judges of inferior

Jurisdiction of RTC and courts is their territorial jurisdiction as defined by the Supreme
MTC Judges Court.
Hence: an RTC judge of Manila cannot solemnize a
marriage in Quezon City; and a municipal trial court judge
in Marilao, Bulacan cannot solemnize a marriage in
Malolos, Bulacan.
Effect of absence of GR: Marriages solemnized by officers outside of their jurisdiction

authority of solemnizing are void for there is an absence of a formal requisite, namely the
officer absence of the authority of the solemnizing officer.
Except: However, the where both or one of the parties
believed in good faith that such solemnizing officer has the
authority.
Can a judge solemnize No, according to Gabriel v. Gabriel.

marriage on a Sunday?
Requirements:
Priests, rabbi, etc. (1) Must be duly authorized by his or her church or religious
sect
(2) Must act within the limits of the written authority granted
to him or her by the church
(3) Must be registered with the civil registrar general
(4) At least one of the contracting parties must belong to his
church or religious sect.
Requirements:
(1) the marriage must be in articulo mortis
Ship captains, etc. (2) the marriage must be between passengers or crew
members;
(3) the ship must be at sea or the plane in flight, including
stopovers at ports of call.
May an asst pilot No. An assistant pilot who has assumed authority during the trip
cannot solemnize a marriage as there is no law allowing such
solemnize a marriage if
assumption of authority for the purpose of solemnizing a marriage.
the chief pilot is absent?
Bance, Shayne Amor


Civil Law 52

Requirements:
Military commanders (1) Must be a military commander of a unit
v Unit here is considered to be a battalion, not just a
mere company or group.
(2) Must be a commissioned officer
v Must have a rank of at least 2nd Lt. or ensign and
above
(3) A chaplain must be assigned to such unit
(4) The said chaplain is absent at the time of the marriage
(5) The marriage must be one of articulo mortis
(6) Parties, whether civilian or members of the armed forces,
must be within military zone.
v Requires the absence of civilian authorities.
Exercise of authority:
Consul-general, etc. v Consul-generals, consuls and vice consuls can solemnize
marriage abroad as long as both parties are Filipinos.
v Thus, a marriage solemnize between a Filipino and a
foreigner by a consul is void.
o Except: when that particular marriage is
considered valid and recognized in that country,
then such marriage will also be valid in the PH,
pursuant to Art. 26.
Functions of consuls vis- Consuls perform two functions: (a) that of local civil registrar in
à-vis marriage issuing a marriage license; and (b) that of a solemnizing officer in
officiating marriages.
Limitation to authority Consuls, etc. can only solemnize marriage abroad.
Under the Local Government Code of 1991, the mayor of a city or

Mayors municipality is now empowered to solemnize marriages.
Vice-mayor may When the mayor is temporarily incapacitated to perform his duties
solemnize marriage in for physical or legal reasons, the vice-mayor or the highest ranking
absence of mayor sangguniang bayan member shall automatically exercise the
powers and perform the duties of the local chief executive, except
the power to suspend, dismiss and appoint employees.
The acting mayor has the power to solemnize marriage
because if he assumes the powers and duties of his office,
then he discharges all the duties and wields the powers
appurtenant to said office.
Art. 8. The m arriage shall be solem nized publicly

in the cham bers of the judge, or in open court,
in the church, chapel or tem ple, or in the office
Where solemnized of the consul-general, consul or vice consul, as
the case m ay be, and not elsew here, except in
cases of m arriages contracted at the point of
death or in rem ote places in accordance w ith
Art. 29 of this Code, or w here both parties
Bance, Shayne Amor


Civil Law 53

request the solem nizing officer in w riting in

w hich case the m arriage m ay be solem nized at
a house or place designated by them in a
sw orn statem ent to that effect.
Provision merely This provision is only directory, not mandatory, so that the non-
directory compliance therewith will not invalidate the marriage.
Liability in case of Violation of this provision will not invalidate the marriage per se as
violation long as it is still celebrated within the territorial jurisdiction of the
solemnizer, but may subject the solemnizer to criminal and
administrative sanctions.
Parties may request the solemnizing officer in writing to solemnize

Exemption from liability the marriage at a house or place designated by them in a sworn
statement ot that effect.
Art. 9. A m arriage license shall be issued by the

local civil registrar of the city or m unicipality
Marriage license, where w here either contracting party habitually
obtained resides, except in m arriages w here no license is
required in accordance w ith Chapter 2 of this
Title.
Place of issue Contracting parties must obtain a marriage license from the local
civil registrar of the city or municipality where either of them
resides.
This provision is useful in small communities where the people

Purpose know one another, because the names of the applicants for
marriage license are posted by the local civil registrar.
Effect of violation of this A violation of this provision will not invalidate the marriage as it is
provision considered to be merely an irregularity; but the party who falsified
her information by stating that he or she is a resident of the place
where the license was applied for, is criminally liable.
v The solemnizing officer is not required to investigate whether

Solemnizing officer, no or not the license was issued in the place required by law.
duty to investigate v Moreover, a solemnizing officer is not duty bound to
marriage license investigate whether or not a marriage license has has been
issued by the local civil registrar.
v All the solemnizing officer needs to know is that the license has
been issued by the competent official, and it may be presumed
from the issuance of the lice that said official has fulfilled the
duty to ascertain whether the contracting parties had fulfilled
the requirements of law. (People v. Jansen)
Duty of solemnizing Except in relation to Art. 29, the solemnizing officer must
officer undertake the necessary steps to ascertain the ages and
Bance, Shayne Amor


Civil Law 54

relationship of the contracting parties and the absence of legal

impediment to marry.
In situations concerning exceptional marriages, the
solemnizing officer is duty bound to ascertain the
qualifications of the contracting parties.
Art. 10. Marriages betw een Filipino citizens

abroad m ay be solem nized by a consul-
Authority of consular general, consul or vice-consul of the Republic
officials of the Philippines. The issuance of the m arriage
license and the duties of the local civil registrar
and of the solem nizing officer w ith regard to
the celebration of the m arriage shall be
perform ed by said consular official.
Duty of consular Consular officials shall perform the duties of the local civil registrar
officials and the solemnizing officer.
Who may be married Filipino citizens abroad, which may be permanently residing abroad
by consular officials or who are merely transients.
Filipino and foreigner A marriage solemnized between a Filipino and a Foreignor is void
married by consular for the solemnizing officer would have no authority over the
official, void foreigner, as such, there is an absence of the formal requisite of
authority of the solemnizing officer.
Nature of the The marriage ceremony shall be in accordance with the laws of the
ceremony Philippines because Art. 17 of the NCC pertinently provides that
when contracts are executed before a consular or diplomatic
official, the solemnities established by Philippine laws shall be
observed in their execution.
Are consular officials No. Filipinos abroad may of course be married before foreign
the only people officials authorized to solemnize marriages. In such case, Art. 26
authorize to marry Fil applies and not Art. 10.
abroad?
Art. 11. Where a m arriage license is required,

each of the contracting parties shall file
Documentary req, for separately a sw orn application for such license
marriage license w ith the proper local civil registrar w hich shall
specify the follow ing:
(1) Full nam e of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how , w hen and
w here the previous m arriage dissolved or
annulled;
(6) Present residence and citizenship;
Bance, Shayne Amor


Civil Law 55

(7) Degree of relationship of the contracting parties;

(8) Full name, residence, and citizenship of father;
(9) Full name, residence and citizenship of 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 21 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.
Purpose of It is the concern of the State to make marriages the secure and
documentary stable institution that it should be. As such, proper documents
must be maintained to serve as proofs for the existence of the
requirements
marriage. Also, this will discourage deception and seduction,
prevent illicit intercourse under the guise of marriage, and relieve
from doubt the status of parties who live together as man and wife
by providing competent evidence of the marriage.
v The application for marriage license is required to be under

Requirements in
oath so that the applicants would tell the truth in their
marriage license
applications. If they lie regarding any detail therein, they will
be commiting perjury.
v The oath shall be administered by the LCR.
v The two parties must file separate or individual sworn
applications because the data will state under oath are
different.
v Even if the parties falsify the information such as their age,
civil status, etc. will still be valid but the party who gave the
wrong information would be civilly, criminally and
administratively liable.
Art. 12 – 19
Excluded in the coverage of the Bar
Art. 20. The license shall be valid in any part of

the Philippines for a period of one hundred
License, where valid
tw enty days from the date of issue, and shall
be deem ed autom atically cancelled at the
expiration of said period if the contracting
parties have not m ade use of it. The expiry
date shall be stam ped in bold characters at
the face of every license issued.
Bance, Shayne Amor


Civil Law 56

Characteristics of v Marriage license may be used anywhere in the Philippines but

marriage license not abroad.
v The date of the signing of the LCR is the date of issuance.
v From the date of issuance, it shall be effective for 120 days. If
it is not claimed and therefore not used, then is shall
automatically become ineffective.
Art. 21. When either or both of the contracting

parties are citizens of a foreign country, it shall
Requirements for be necessary for them before a m arriage
foreigners license can be obtained to subm it a certificate
of legal capacity to contract m arriage, issued
by their respective diplom atic or consular
officials.
Stateless persons or refugees from other
countries shall, in lieu of the certificate of legal
capacity herein required, subm it an affidavit
stating the circum stances show ing such
capacity to contract m arriage.
Rationale for the The capacity of a foreigner to get married in the Philippines is
certificate of legal governed by his national law, so that our government offices
cannot take judicial notice of said law. Hence, he must present a
capacity
certificate of legal capacity to contract marriage from the embassy
or consular office of his country since they are the ones who know
the national law of said foreigner.
The local civil registrar is exempt from issuing a marriage license if

LCR, no duty to issue
the contracting foreigner party fails to present this certificate.
marriage license
If however a marriage license was still issued even though there

Effect of absence of
was a failure to present this certificate, the marriage will still be
certificate valid.
Art. 22. The m arriage certificate, in w hich the

parties shall declare that they take each other
Marriage license, as husband and w ife, shall also state:
what is contained (1) The full nam e, sex and age of each
contracting party;
(2) Their citizenship, religion and habitual
residence;
(3) The date and precise tim e of the
celebration of m arriage;
(4) That the proper m arriage license has
been issued according to law , except in
m arriages provided for in Chapter 2 of
this Title.
(5) That either or both of the contracting
parties have secured the parental
Bance, Shayne Amor


Civil Law 57

(6) That either or both of the contracting

parties have com plied w ith the legal
requirem ent regarding parental advice in
appropriate cases; and
(7) That the parties have entered into a
m arriage settlem ent, if any, attaching a
copy thereof.
Art. 23. It shall be the duty of the person

solem nizing the m arriage to furnish either of the
Duty of the contracting parties the original of the m arriage
solemnizing officer certificate referred to in Article 6 and to send
the duplicate and triplicate copies of the
certificate not later than 15 days after the
m arriage, to the local civil registrar of the
place w here the m arriage w as solem nized.
Proper receipt shall be issued by the LCR to
the solem nizing officer transm itting copies of
the m arriage certificate. The solem nizing officer
shall retain in his file the quadruplicate copy of
the m arriage certificate, the original of the
m arriage license and, in proper cases, the
affidavit of the contracting party regarding the
solem nization of the m arriage in a place other
than those m entioned in Article 8.
All presumptions should be for marriage. As such, when a man and

Semper Presumitur a woman deporting themselves to be man and wife, the
Pro Matrimonia, def. presumption shall be that they entered into lawful marriage and
this will remain satisfactory until contradicted and overcome by
evidence.
Marriage, how proved 1. The marriage certificate is the best evidence that a marriage
exists.
2. Absent a marriage certificate, the court may take cognizance
of the following:
a. Photostat copy of the marriage certificate issued by the
LCR
b. Baptismal certificates, birth certificates, judicial decisions
and family bibles in which the names of the spouses
have been entered as married
c. Parol evidence like testimonies of one of the parties,
witnesses or solemnizing officer.
Burden of proof against Anyone assailing the validity of a marriage is required to make
marriage plain, against the constant pressure of the presumption of legality,
the truth of law and fact that the marriage was not legal. The
evidence to repel that presumption must be strong, distinct and
satisfactory.
Bance, Shayne Amor


Civil Law 58

Where there is doubt as In the event that the parties are not certain whether, under the
to capacity to marry law, they can proceed with a marriage, they can file a petition for
declaratory relief, to seek from the court a judgment on their
capacity to marry.
Declaratory relief, def. A petition for declaratory relief may be brought by any person
interested under a deed, will contract or other written instrument
or whose rights are affected by a statute, EO, regulation, ordinance
ot other governmental regulation.
Action for DR, when The action must be brought before any violation of breach.
brought
Art. 23-25
Excluded in the coverage of the Bar
Art. 26. All m arriage solem nized outside the

Philippines, in accordance w ith the law s in
force in the country w here they are
solem nized, and valid there as such, shall also
Marriage celebrated be valid in this country, except those prohibited
abroad under Articles 35(1), (4), (5) and (6), 36, 37 and
38.
Where a m arriage betw een 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
rem arry, the Filipino spouse shall likew ise have
capacity to rem arry under Philippine law .
International comity, The legal effect which may be given by one state to the marriage
basis for recognizing laws of another state is merely because or comity, or because
marriage abroad public policy and justice demand the recognition of such laws.
Each sovereign state has the right to declare what
marriages it will or will not recognize, regardless of
whether the participants are domiciled within or without its
borders and notwithstanding such marriages’ validity under
the laws of the foreign state where such marriages were
contracted.
The following marriages, though they may not be valid if

Illustration of valid
contracted in the PH, shall be valid irregardless if valid in the
abroad marriages
country where these were contracted.
which would have (1) marriage without a license solemnized abroad
been invalid if (2) proxy marriages abroad
contracted in PH (3) marriage solemnized by a professor abroad
Bance, Shayne Amor


Civil Law 59

Marriages that while 1. Marriage between persons below 18.

valid abroad, are still 2. Bigamous or polygamous marriages
invalid in the PH 3. Marriage contracted by mistake of one contracting party as
to the identity of the other; and
4. Void subsequent marriages
5. Marriages where one party is psychologically incapacitated
6. Incestuous marriages
7. Void marriages for reason of public policy
GR: A marriage between two Filipinos who are both or either below
Legal capacity 18 years of age, even if valid in the country where it was
celebrated, is VOID.
Why marriages The PH adheres to the rule that the marrying capacity of the
between PH minors contracting parties is governed by the national law of that party.
void Hence, even if the parties live abroad and marriage in that country
may be made by persons below 18, being Filipinos, their capacity is
still governed by PH laws.
What is the status of the If one Filipino and another an alien whose national law capacitates
him to marry below 18, the marriage is VALID.
marriage of a Fil and
alien?
Art. 26, when it pertains to Art. 35(1) as a void marriage should
How Art. 26 should be only be constured as referring to a situation where the marriage
construed as pertaining abroad is between both Filipinos, not when one party is an alien. A
legal capacity contrary stipulation would lead to absurdity as the PH follows the
nationality rule.
Are common-law No. Sec. 71 of the Civil Code which was the predecessor of Art. 26
marriages valid abroad of the Family Code changed the term “all marriages performed
valid in the PH? outside the PH” to “all marriages solemnized outside the PH.”
According to Sta. Maria, the change in the wording signifies the
intent of the framers to limit the scope of the provision so as not to
include common-law marriages.
Are same-sex marriage No. Public policy in the PH mandates that only a man and a woman
of Filipinos abroad can marry each other. This clear public policy consideration is
valid? enunciated in Art. 1 of the FC, stating that marriage is a special
contract x x x between a man and a woman. Same sex marriage is
therefore not allowed in the PH. If a Filipino contracts a marriage
abroad with a person of the same sex, whether such person is
another Filipino or a foreigner, such a marriage shall not be
recognized in here.
Proof of foreign It is necessary to prove the foreign law as a question of fact and
marriage then to prove the celebration of marriage pursuant thereto by
convincing evidence.
Bance, Shayne Amor


Civil Law 60

Effect if foreign law not If such law of the other state is not pleaded nor proved and for
pleaded and proved the purpose of determining the validity of a marriage in the said
state, the laws of such state, in the absence of proof to the
contrary, will be presumed by the court to be the same as the laws
of its own state.
Reason why foreign The rule that a foreign marriage valid in accordance with the
law must be pleaded law of the place where it was performed shall be valid also in the
and proved PH, cannot begin to operate until after the marriage performed
abroad and its compliance with the requirements for validity under
the marriage law of the place where it was performed, are first
shown as factual matters.
Chapter 2
Marriages exempt from License
Requirement
Art. 27. In case either or both of the contracting

parties are at the point of death, the m arriage
Marriage in m ay be solem nized w ithout necessity of a
articulo mortis m arriage license and shall rem ain valid even if
the ailing party subsequently survives.
Art. 28. If the residence of either party is so

located that there is no m eans of
transportation to enable such party to appear
personally before the LCR, the m arriage m ay
Marriage in far areas
be solem nized w ithout necessity of a m arriage
license.
Art. 29. In the case provided for in the tw o

preceding articles, the solem nizing officer shall
Duty of solemnizing state in an affidavit executed before the LCR
officers in articulo mortis or any other person legally authorized to
adm inister oaths that the m arriage w as
perform ed in articulo mortis or that the
residence of either party, specifying the barrio
or barangay, is so located that there is no
m eans 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 a legal
im pedim ent to the m arriage.
Bance, Shayne Amor


Civil Law 61

Art. 30. The original of the affidavit required in

the last preceding article, together w ith a
legible copy of the m arriage contract, shall be
What must be sent to LCR sent by the person solem nizing the m arriage to
the LCR of the m unicipality w here it w as
perform ed w ithin the period of 30 days after
the perform ance of the m arriage.
Rationale for exceptions The exceptions are founded on necessity and practicality such as in
the case of marriages in articulo mortis where at least one of the
parties is in the brink of death and of marriages in remote places;
on the respect for and recognition of the customs and practices of
Muslims and ethnic minorities; and on the policy of the State to, as
much as possible, validate or legitimize illicit cohabitation between
persons who do not suffer any legal impediment to marry.
Who may solemnize Officers authorized under Art. 7 and the mayor are also
marriages in articulo empowered to solemnize marriages even without a valid marriage
mortis license if either or both of the contracting parties are at the point
of death. Their authority however is still restricted by certain
limitations, i.e. judges within their territorial jurisdiction, consuls
over Filipinos abroad, etc.
Art. 31. A m arriage in articulo m ortis betw een

passengers or crew m em bers m ay also be
solem nized by a ship captain or by an airplaine
Pilots and Ship Captain pilot not only w hile the ship is at sea or the
plane is in flight, but also during stopovers at
ports of call.
Art. 32. A m ilitary com m ander of a unit, w ho is

a com m issioned officer, shall likew ise have
authority to solem nize m arriages in articulo
Military commander m ortis betw een persons w ithin the zone of
m ilitary operations, w hether m em bers of the
arm ed forces or civilians.
Art. 33. Marriages am ong Muslim s or am ong

m em bers of the ethnic cultural com m unities
Ethnic cultural m ay be perform ed validly w ithout the necessity
communities of a m arriage license, provided they are
solem nized in accordance w ith their custom s,
rites or practices.
Art. 34. No license shall be necessary for the

m arriage of a m an and a w om an w ho have
lived together as husband and w ife for at least
Cohabitation for 5 yrs five years and w ithout any legal im pedim ent to
m arry each other. The contracting parties shall
Bance, Shayne Amor


Civil Law 62

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
and found no legal impediment to the marriage.
Conditions for Art. 34 (1) they must live as such for at least 5 years characterized by
to apply exclusivity and continuity that is unbroken; and
(2) they must be without any legal impediment to marry each
other.
While both conditions must concur, they do not qualify each other.
Conditions must concur In other words, during the 5-year period, it is not necessary that
at the time of they must not have suffered from any legal impediment. The
celebration, not through second condition must be construed to refer only to the time of the
the whole 5 years actual marriage celebration. Hence, the parties must be without
legal impediment only at the time of the marriage ceremony and
not during all those previous 5 years.
Under Art. 76 of the CC, there must be no legal impediment during

CC provision v. FC the whole 5-year period. (Ninal v. Bayadog, GR 133778, 2000)
provision Under Art. 34 of the Family Code, however, as long as there is no
legal impediment at the time of the marriage ceremony, the parties
can avail of the exception. (Manzano v. Sanchez, March 8, 2001).
Jurisprudential rulings on Cosca v. Palaypayon, 237 SCRA 249

affidavits in lieu of v Judge solemnized marriage between parties who were only
certificate 18 years old based on affidavit stating that they have
cohabited for 6 years.
v Court held that the judge should have investigated the
affidavit as it would appear that the parties cohabited
when they were only 12.
v However, the SC did not avoid the marriage since at the
time of the marriage, parties had no legal impediment to
marry.
De Castro v. Assidao-de Castro, Feb. 12, 2008

v The Court ruled that the marriage is void on the ground of
absence of a valid marriage license upon evidence that
there was in fact no cohabitation for five years contrary to
the statements in the falsified affidavit.
v The falsity of the affidavit cannot be considered to be a
mere irregularity considering that the 5-year period is a
substantial requirement of the law to be exempted from
obtaining a marriage license.
The procedure laid down in Articles 29 to 30 relative to the duties

Art. 29 and 30 merely of the solemnizing officer with respect to the affidavit he or she
directory has to execute is merely directory in character. Non-observance of
the requirements will not render the marriage void or annullable.
Bance, Shayne Amor


Civil Law 63

Chapter 3
Void and Voidable Marriages
Art. 35. The follow ing m arriages shall be void

from the beginning:
(1) Those contracted by any party below 18
Void Marriages years of age even w ith the cosent of
parents or guardians;
(2) Those solem nized by any person not
legally authorized to perform m arriages
unless such m arriages w ere contracted
w ith either or both parties believing in
good faith that the solem nizing officer had
the legal authority to do so;
(3) Those solem nized w ithout a license,
except those covered by the preceding
Chapter;
(4) Those bigam ous or polygam ous m arriages
not falling under Art. 41.
(5) Those contracted through m istake of one
contracting party as to the identity of the
other; and
(6) Those subsequent m arriages that are void.
Void marriages, def. A void marriage is that which is not valid from its inception. Other
than the marriages provided herein, marriages with the absence of
any of the essential or formal requirements for a valid marriage
provided for in Art. 2 and 3 makes a marriage void.
Void marriages defined Only marriage declared void by the legislature should be treated as
by law such. There can be no other void marriages outside of those
specifically provided by law.
Only one cause of The grounds for a void marriage may co-exist in one case. A
action, though many petition for declaration of nullity may contain many grounds for
nullity of marriage, such as absence of consent, no marriage
grounds
license, psychological incapacity of the parties and bigamy, but it
has only one cause of action, which is the nullity of marriage.
Void marriage, not the

same as voidable A void marriage is different from a voidable or annullable marriage
under Article 45 of the Family Code.
marriage
Bance, Shayne Amor


Civil Law 64

Void v. Voidable Aspect Void Voidable

marriages As to validity Void ab initio Valid until otherwise
declared by court
AS to source of rights Considered as never Has taken place and
having taken place; may be the source of
produces no rights rights
As to ratification Can never be ratified May be ratified
As to how attacked Can be attacked Cannot be assailed
collaterally collaterally except in a
direct proceeding
As to time to assail Can be questioned May only be assailed
even after the death only during the
of the other party lifetime of the parties
As to prescription Action or defense is Prescribes
imprescriptible
As to who may attack Any proper party may Only the parties (or
validity attack the validity parents and
guardians)
As to property regime Co-ownership Conjugal
partnership/absolute
community
As to children GR: illegitimate, with legitimate
exceptions
GR: Good faith and bad faith are immaterial in determining

Good/Bad Faith whether or not a marriage is null and void.
Hence: even if a woman married a man who she believed
in good faith is not related to her but was in fact her long-
lost brother, her good faith will not cure the infirmity.
Instances when good (1) If either of the contracing parties is in good faith in believing
faith are relevant in that a solemnizing officer has authority to solemnize a
void marriages marriage though he or she actually has none, the marriage is
considered valid.
(2) If a person, in good faith, contracts a subsequent marriage
after complying with the requirements to declare a spouse
presumptively dead.
Good faith, relevant in Good faith and bad faith may be essential in determining the
disposition of properties disposition of properties.
When only one of the parties is in good faith, the share of
the party in bad faith in the co-ownership shall be:
(a) forfeited in favor of their common children.
(b) If any or all of the common children default or
waive, forfeited in favor of the surviving
descendants.
(c) In the absence of descendants, to the innocent
party.
Rule governing void This rule applies to all void marriages except void subsequent
subsequent marriages marriages, which is governed not by Art. 147 or 148 but by Art. 50
in relation to Art. 43.
Bance, Shayne Amor


Civil Law 65

GR: A void marriage can be collaterally attacked.

Collateral attack This means that the nullity of a marriage can be asserted
even if it is not the main or principal issue of a case and
that no previous judicial declaration of nullity is required by
law with respect to any other matter where the issue of
the voidness of a marriage is pertinent or material, either
directly or indirectly.
De Castro v. Assidao-De Castro, February 13, 2008

Jurisprudence, nullity of
v In a case for support filed by the woman, the man
marriage not needed in interposed as defense the fact that he and the petitioner
claim of void marriage were not married.
against support v The Court ruled that the lower court can make a
declaration that the marriage was void to determine the
rights of the child to be supported. A judicial declaration of
nullity is not needed before the lower court can rule that
the marriage was void.
Direct attack on Direct attack means filing a case precisely putting forth as principal
issue the nullity of marriage.
marriage, def.
(1) For purposes of remarriage, the only acceptable proof to show

Exception to the rule the voidness of the first marriage is a judicial declaration
allowing collateral issued by the court directly stating that the first marriage is
attack/ When only a null and void. (Art. 40, FC)
direct attack of the (2) For purposes other than remarriage, there is a need for a
marriage may be judicial declaration of nullity for any issue that may arise in
made the case.
(3) In cases where the donor desires to revoke a donation
propter nuptias, it is important that a judicial declaration of
nullity of the marriage must first be obtained.
v It is not enough that the marriage is void pursuant to
law.
v There must first be a civil suit filed by either of the
parties in the void marriage to have the marriage
judicially declared null and void.
v The existence of a valid judicial declaration of nullity
will give the donor the cause of action to revoke the
donation or to consider the donation as revoked by
operation of law.
GR: Marriage solemnized by person without authority is void.

Authority of SO Ex: If one or both of the parties contracted marriage
believing in good faith that the solemnizing officer had the
legal authority to do so when in fact, he or she has none.
Good faith here pertains to the good faith of the parties, not the
Good faith, what it solemnizing officer. Furthermore, good faith here only works in one
pertains to formal requisite: authority of the solemnizing officer and not to any
other requitie, whether formal or essential.
Bance, Shayne Amor


Civil Law 66

Putative marriage, def. A matrimonial union which has been solemnized in due form and
good faith on the part of one or both of the parties but which by
reason of some legal infirmity is either void or voidable. The
essential basis of such marriage is the belief that it is valid.
Good faith vi-a-vis Good faith means an honest and reasonable belief that the
validity of marriage marriage was valid at its inception, and that no legal impediment
exists to impair its validity.
While it has frequently been said that a party may be in
food faith so long as he receives no certain or authoritative
knowledge of some legal impediment to the marriage, such
person cannot close his ears to information or his eyes to
suspicious circumstances, and must not act blindly or
without reasonable precautions.
Justice Caguioa argues that the good faith of one or both of the
J. Caguioa and Dr. parties that the person solemnizing the marriage has the authority
Tolentino, views on to do so should be considered so as to make the marriage valid,
good faith of parties; not void. “This is to prevent unscrupulous chauvinistic males from
effect on void deceiving girls, because they were made to believe that the are
marriage. going to be married when marriage is not what they want. J.
Caguioa gave an example where a friend asks a notary public
friend to officiate a marriage, then the marriage should be
considered as valid.
Dr. Arturo Tolentino however argues that there must be a
distinction between ignorance of the law and mistake of
fact. If the contracting parties go before a person not
specifically mentioned by law as having any authority to
solemnize a marriage, then the good faith or bad faith of
the parties is immaterial for ignorance of the law is not
excused. But if the contracting parties go before a person
stated by law as qualified to solenize a marriage but in fact
is not because of non-fulfillment of a requirement by law,
then the good faith of the contracting parties in believing
that solemnizer had authority is material.
Such good faith will validate the marriage.
Mistake in Identity Mistake in identity goes into the very essentials of a valid marriage
as there is complete absence of consent. What is important here is
that the contracting party did not intend to marry the other, as the
same is not the person he or she actually knew before the
marriage.
What mistake in identity Mistake in identity as a ground for nullity covers only those
covers situations in which there has been a mistake on the part of the
party seeking the nullification of marriage as to the actual physical
identity of the other party.
What it does not cover It does not include mistake in the name, the character of the
person, or in his or her attributes, his or her age, religion, social
standing, pedigree, pecuniary means, temperament, etc.
Bance, Shayne Amor


Civil Law 67

For persons whose marriage have been annulled or declared null

Void Subsequent Marriage and void to be able to validly marry again, they must undertake the
liquidation, partition and distribution of the properties, and in
proper cases, the delivery of the presumptive legitimes, and it must
be recorded in the appropriate civil registry.
What must be (1) liquidation, partition, and distribution of properties

undertaken under Art. (2) delivery of presumptive legitimes;
53 (3) recording in the appropriate civil registry.
Art. 36. A m arriage contracted by any party,

w ho at the tim e of the celebration, w as
Psychological incapacity psychologically incapacitated to com ply w ith
the essential m arital obligations of m arriage,
shall likew ise be void even if such incapacity
becom es m anifest only after its solem nization.
Psychological The law does not define what psychological incapacity is and
incapacity, no legal therefore, the determination is left solely with the courts on a case-
to-case basis.
definition
v This absence of definition is intentional because a
definition might straight-jacket the concept.
Psychological incapacity is not insanity or total mental inability to

Incapacity pertains to function. This ground is limited only to incapacity to comply with
marital obligation the essential marital obligation. The malady or mental disposition
of one or both of the spouses must be such as to seriously and
effectively prevent them from having a functional and normal
marital life clearly conducive to bringing up a healthy personal
inter-marital relationship within the family which is necessary for its
growth.
Psych Incapacity def. in It involves a senseless, protracted and constant refusal to comply
Chi Ming Tsoi v. CA with the eseential marital obligation by one or both of the spouses,
although he, she or they are physically capable of performing such
obligations.
Capacity in other areas Tongol v. Tongol, GR No. 157610, October 19, 2007
of life does not mean While a person may be truly very efficient and mentally capable in
capacity in marital undertaking a particular profession in life, he or she can still be
obligation considered as a completely irresponsible person vis-à-vis his or her
married life if he or she spends almost the whole day working and
not minding his or her family.
Fact that person really The fact that a person really loves his or her spouse and children
loves family does not does not constitute a bar to successfully invoke this ground if it is
discount pych inc. clearly shown that, despite this very authentic feeling of love, he or
Bance, Shayne Amor


Civil Law 68

she is so absolutely indifferent with respect to his or her duties as a

father and husband or mother and wife as the case may be.
Psychological incapacity to perform the essential marital

Psych Incapacity, when
obligations, must be present at the time of the marriage ceremony,
present
but can be manifested later on during the marriage.
Cohabitation, does not Such a marriage cannot be cured by cohabitation considering that
ratify void marriage it is void and, therefore, ratification cannot apply.
due to psych inc.
Psychological incapacity is psychosomatic and deals with a state of

Proving Psych Inc. mind, and thus, can only be proven by indicators of external
manifestations of the person claimed to be psychologically
incapacitated.
v These indicators must be clearly alleged in the complaint.
v The fear of a wife, who is afraid of children, to engage in

Indicators of
sexual intercourse is an indicator of psychological incapacity.
psychological (Minutes of Committee Meeting on October 4, 1983)
incapacity v Unreasonable attachment by the spouse to his or her family or
to the spouse’s friends or barkada such that the importance
and devotion which should be given to his or her own spouse
and children are subordinated to the said attachment is also a
good indicator.
v Actual breakdown of family life characterized by separation of
husband and wife is also a good indicator of the presence of
this particular ground.
o However, separation or abandonment alone is not
conclusive proof of psychological incapacity.
(Republic v. Quentero Hamano, 482 SCRA 735)
Jurisprudential rulings on v Mere isolated idiosyncracies of a spouse are not of themselves

what psychological manifestations of psychological incapacity to perform the
essential marital obligations. The manifestations of
incapacity is NOT
psychological incapacity must be attributed to psychological
illness, not merely physical illness. (Bier v. Vier, Feb 2008)
v Psychological incapacity must not be mere refusal or neglect to
comply with the obligations, it must be downright incapacity to
perform. (Republic v. Cabantug-Baguio, June 2008)
v Mere incompatibility and irreconcilable differences are not
enough. (Aspillaga v. Aspillaga, October 2009)
Psych. Incapacity is Just because a person is psychologically incapacitated to perform

very personal and his or her marital obligations with his or her present spouse would
limited one mean that this would also be the case with any other person other
than his or her present spouse.
Bance, Shayne Amor


Civil Law 69

In the course of the proceedings, expert testimonies of a

Expert Testimony psychologist or psychiatrist evaluating the behavioral pattern of the
person alleged to be psychologically incapacitated are extremely
helpful.
Jurisprudential ruling on Marcos v. Marcos, GR No. 136490, October 2000

expert testimony v The personal medical or psychological examination of
respondents is not a requirement for a declaration of
psychological incapacity and that it is not a condition sine
qua non for such declaration.
Paras v. Paras, GR No. 147842, August 2007

v The court may or may not accept the testimony of the
psychologist or psychiatrist because the decision must be
based on totallity of the evidence.
Antonio v. Reyes, GR No. 155880, March 2006

v The SC adhered to the medical and clinical findings of the
psychiatrist and psychologist who did not personally
examine the subject but who were given reliable data
about the respondent and read the pertinent court records
in coming up with a more reliable assessment that the
respondent was a pathological liar, as against the faulty
clinical and medical findings of the pscyhiatrist of the
respondent who examined the respondent and claimed
that the respondent was not suffering from psychological
incapacity.
o The mere fact that a psychiatrist personally
examined the subject person is not an assurance
that his or her findigns would be sustained.
Rambaua v. Rambaua, GR No. 166738, August 2009

v The SC denied the petition on the ground that the
psychological report was very general and di not state the
specific linkages between the personality disorder and the
behavioral pattern of the spouse during the marriage.
Krohn v. CA, GR No. 108854, June 1994

v Husband sought to introduce the confidential psychiatric
evaluation report made by the psychiatrist with respect to
his wife. This was objected to by the lawyer of the wife on
the ground that such report was within the privileged
communication rule between doctor and patient.
v The SC held that the testimony of the husband is not
covered by the doctor-patient privileged communication
rule since the one who would testify is not the doctor but
the husband.
Najera v. Najera, GR No. 164817, July 2009

v The testimony of the psychologicst was also inadequate
and, in fact, did not conform to one of the persuasive
evidence, which is the decision of the church matrimonial
tribunal that nullified the marriage not on psychological
incapacity but on a different church ground.
Bance, Shayne Amor


Civil Law 70

Republic v. CA and Molina, GR No. 108763, February 1997

Jurisprudential Guidelines
(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff.
(2) The root cause of the psyschological 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.
(3) The incapacity must be proven to be existing at “the time of
the celebration” of the marriage.
(4) Incapacity must be shown to be medically or clinically
permanent or incurable.
(5) Such illness must be grave enough to bring about the disability
of the party to assume the essential obligations of the
marriage.
(6) The essential marital obligations must be those embraced by
Articles 68 to 71 of the Family Code as regards the husband
and wife and Articles 220, 221 and 225 in regard to parents
and their children.
(7) Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church of the Philippines, while not
controlling or decision, should be given great respect by our
courts.
(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the State.
SolGen certification no The certification of the Solicitor General is not anymore needed
longer needed pursuant to SC En Banc resolution in A.M 00-11-01-SC.
The award of moral damages, exemplary damages and attorney’s

fees in a case involving psychological incapacity was disallowed on
Damages the ground that the very nature of psychological incpacity which is
non-cognizance of one’s essential marital obligations at the time of
the marriage ceremony, negates bad faith, which is an essential
element in awarding moral damages in contracting marriage.
Art. 37. Marriages betw een the follow ing are

incestuous and void from the beginning,
w hether the relationship betw een the parties
Incestuous marriages be legitim ate or illegitim ate:
(1) Betw een ascendants and descendants of
any degree; and
(2) Betw een brothers and sisters, w hether of
the full or half-blood.
Reasons for the Incestuous marriages have been universally condemned as grossly
prohibition indecent, immoral and inimical to the purity and happiness of the
family and the welfare of future generations.
v Abhorrent to the nature, not only of civilized men, but of
barbarous and semi-civilized peoples.
v Tends to the confusion of rights and duties incident to
family relations.
Bance, Shayne Amor


Civil Law 71

v Incestuous intermarriages very often result in deficient and

degenerate offsprings which, if occuring to any great
extent, would amount to serious deterioration of the race.
v Social and psychological aspects of of an incestuous
marriage.
o Social prohibitions against incest promote the
solidarity of the nuclear family.
o The prohibition controls the sex rivalries and
jelaousies within the family unit.
o It inhibits the competing relations of sexual
intimacy that would disorganize the family
structure and undermine the family’s role as the
unit of socialization and personality development.
Art. 38. The follow ing m arriages shall be void

from the beginning for reasons of public policy:
Void for public policy (1) Betw een collateral blood relatives,
w hether legitim ate or illegitim ate, up to
the fourth civil degree;
(2) Betw een step-parents and step-children;
(3) Betw een parents-in-law and children-in-
law ;
(4) Betw een the adopting parent and the
adopted child;
(5) Betw een the surviving spouse of the
adopting parents and the adopted child;
(6) Betw een the surviving spouse of the
adopted child and the adopter;
(7) Betw een an adopted child and a
legitim ate child of the adopter;
(8) Betw een the adopted chilren of the
sam e adopter;
(9) Betw een the parties w here one, w ith the
intention to m arry the other, killed that
other person’s spouse or his or her ow n
spouse.
Reasons for the It is the policy of the State to foster a normal, peaceful and
wholesome integral nuclear family unit which would constitute the
prohibition
very foundation of society.
v These are marriages that will not serve the fundamental
objective of nurturing a stable family unit that can
effectively be the foundation of society.
Effect of termination of In the event that the marriage is annulled or nullified in accordance
marriage on the “affinity with law, there can be no question that the relationship by affinity
prohibition” between step-parents and step-children as well as parents-in-law
and children-in-law is terminated. The said persons become
strangers to each other. This will allow them therefore to marry
each other.
Bance, Shayne Amor


Civil Law 72

Art. 39. The action or defense for the

declaration of absolute nullity of a m arriage
Imprescriptibility shall not prescribe.
A judicial decree of nullity of a marriage does not legally dissolve a

Judicial decree merely marriage because such a marriage is invalid from the beginning
confirm nullity of and therefore, being non-existent, cannot be dissolved.
marriage; does not The judicial decree merely declares or confirms the
dissolve the marriage voidness, non-existence or incipient invalidity of a
marriage.
Hence, the decree is known as a judicial declaration of
nullity of marriage decree.
Only husband and wife While the imprescriptibility of the action for nullity is recognized,
may file action for AM No. 02-11-10 which took effect on March 15, 2003 provides
nullity that only the husband and wife can file the said case and, if filed,
the case will be closed or terminated if during its pendency, either
the husband or wife should die.
Moreover, the heirs can no longer file a case for the nullity
of the marriage of their parents or of their parent with
their step-parent. (Enrico v. Heirs of Medinaceli, GR No.
173614, September 2007)
Only the husband or the wife can file a court case declaring the
Who may file an action
marriage void.
to declare nullity of
v The doctrine of clean hands where the court should not
marriage grant relief to the wrongdoer is not a rule as applied in
nullity actions.
v Hence, the action may be filed by the wrongdoer himself,
though he may be held liable for damages by way of
counterclaim by the other contractng party under the
provisions on Human Relations.
Since the rule limits the Yes, a void marriage may still be attacked collaterally by any
parties who may file an interested party in any proceeding where the determination of the
action, may the void validity of marriage is necessary to give rise to certain rights of to
marriage still be negate certain rights.
attacked by persons This can occur for example in an intestate proceeding
other than the where certain heirs can attack the validity of the marriage
spouses? of the deceased parent so that the children of the
deceased parent can be considered illegitimate for
purposes of inheritance.
Art. 40. The absolute nullity of a previous

m arriage m ay be invoked for purposes of
Purposes of remarriage, rem arriage on the basis solely of a final
what may be invoked judgm ent declaring such previous m arriage
void.
Bance, Shayne Amor


Civil Law 73

If a marriage between the two contracting parties is void ab initio,

Judicial declaration of nullity any one of them cannot contract a subsequent valid marriage
without a previous judicial declaration of nullity of the previous
marriage.
Effect of subsequent A subsequent marriage without such judicial declaration is in itself

marriage without void ab initio in accordance with Articles 40, 52 and 53.
complying with Art. 40 Only after full compliance with the requirements of Articles
52 and 53 can a subsequent valid marriage be entered
into.
As a matter of policy, the nullification of a marriage for the purpose

Rationale for need of
of contracting another cannot be accomplished merely on the basis
judicial declaration of
of the perception of both parties or of one that their union is so
nullity defective with respect to the essential requisites of a contract of
marriage as to render it void ipso jure and with no legal effect –
and nothing more.
Were this so, this inviolable social institution would be
reduced to a mockery and would rest on very shaky
foundations indeed.
Is a subsequent void No. Article 40 does not provide or expressly declare or define that
marriage a bigamous a subsequent void marriage obtained in violation of Article 40 is
marriage? bigamous. This is precisely because there is no bigamy if the first
marriage is void and Article 40 precisely contemplates a situation
where the first marriage is void.
[Bance] This means that the marriage is not bigamous,
exactly since the first marriage is void and hence, the
elements of bigamy is not present. The reason why the
marriage is void is akin to that of absence of a formal
requirement.
Art. 41. A marriage contracted by any person during the

subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
Presumptive Death marriage, the prior spouse had been absent for four
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 in the
provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For purposes of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided for in this Code for the declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
Bance, Shayne Amor


Civil Law 74

Art. 42. The subsequent m arriage referred to in

the preceding Article shall be autom atically
Reappearance of prior
term inated by the recording of the affidavit of
spouse
reappearance of the absent spouse, unless
there is a judgm ent annulling the previous
m arriage or declaring it void ab initio.
As sw orn statem ent of the fact and
circum stances of reapperance shall be
recorded in the civil registry of the residence
of the parties to the subsequent m arriage at
the instance of any interested person, w ith due
notice to the spouses of the subsequent
m arriage and w ithout prejudice to the fact of
reappearance being judicially determ ined in
case such fact is disputed.
A subsequent marriage may be considered as NOT bigamous

Exception, when when, prior to the subsequent marriage and without prejudice to
subsequent marriage is the effect of the reappearance of the other spouse, the present
not bigamous spouse obtains a judicial declaration of presumptive death via a
summary proceeding in a court of competent jurisdiction.
Effect of recording of Automatic termation of the subsequent marriage can be obtained

affidavit of by the recording of the affidavit of reappearance of the absent
reappearance spouse in the civil registry of the residence of the parties to the
subsequent marriage pursuant to Art. 42.
This is the only instance where a marriage is terminated
extra-judicially.
Instance of valid If the spouse reapperance and he or she or any interested party
bigamous marriage does not file an affidavit or sworn statement with the civil register
of the fact of reappearance, there will technically exist two valid
marriages.
This is an instance where a valid bigamous marriage shall
exist for both the marriage between the present spouse
and the reappearing spouse are valid.
After the issuance of this judicial declaration, the properties of the

Requirement as to
first marriage should be liquidated using by analogy the provisions
liquidation, effect of lack
of Art. 103 and 130 of the FC.
of liquidation v If there is no liquidation and the present spouse
immediately remarries, the property regime that will apply
in the subsequent marriage will be the complete separation
of property.
v However, if there was liquidation, the parties may agree in
the settlement as to what type of property regime will
govern their marital relationship and, in the absence of
such marriage settlement or when the latter is void, the
spouses shall be governed by the ACP.
Bance, Shayne Amor


Civil Law 75

Rule as to need for GR: No judicial declaration of presumptive death is required as

judicial declaration such presumption arises from law.
However, such judicial declaration of presumptive death is
the best evidence of the “well-founded belief” on the part
of the present spouse that the absent spouse is dead.
v It immunizes the present spouse from being
charged of bigamy, adultery or concubinage.
Effect of reappearing If the reappearing spouse or any interested party does not file any
spouse does not file sworn statement of reappearance, the subsequent marriage
affidavit of remains validly subsisting, while the first marriage is likewise
reappearance considered subsisting not having been judicially nullified or
annulled.
As between the two marriages, the law or the state shall continue
State preference
to protect the second marriage rather than the first. This is so
between prior
because, if indeed the reappearing spouse wants to assert his or
marriages and her rights, he or she could easily file the affidavit of reappearance
subsequent marriage to terminate the subsequent marriage.
If he or she does not do so, then he or she cannot just
cause a disturbance in the subsequent marriage without
following the requirements of the law.
v In essence, therefore, the statutory requirement of
the filing of a sworn statement of reappearance
also serves as the best evidence to show that the
State is also prepared to return the preference to
the first marriage and consider it as the only
marriage allowable under the circumstances if
even one of the parties or any interested person so
desires.
v Hence, the recording requirements of the law must
be observed.
Art. 43. The term ination of the subsequent

Effects of termination m arriage referred to in the preceding Article
shall produce the follow ing effects:
(1) The children of the subsequent m arriage
conceived prior to its term ination shall be
considered legitim ate and their custody
and support in case of dispute shall be
decided by the court in a proper
proceeding;
(2) The absolute com m unity of property or
the conjugal partnership as the case m ay
be, shall be dissolved and liquidated, but
if either sposue contracted said m arriage
in bad faith, his or her share of the net
profits of the com m unity property or
conjugal partnership property shall be
forfeited in favor of the com m on childre
or, if there are none, the children of the
Bance, Shayne Amor


Civil Law 76

guilty spouse by a previous m arriage or

in default of children, the innocent
spouse;
(3) Donations by reason of m arriage shall
rem ain valid, except that if the donee
contracted the m arrige in bad faith, such
donations m ade to said donee are
revoked by operation of law ;
(4) The innocent spouse m ay revoke the
designation of the other spouse w ho
acted in bad faith as a beneficiary in any
insurance policy, even if such designation
be stipulated as irrevocable; and
(5) The spouse w ho contracted the
subsequent m arriage in bad faith shall be
disqualified to inherit from the innocent
spouse by testate and intestate
succession.
Art. 44. If both spouses of the subsequent

m arriage acted in bad faith, said m arriage shall
Spouses both in bad faith be void ab initio and all donations by reason of
m arriage and testam entary dispositions m ade
by one in favor of the other are revoked by
operation of law .
Children conceived during the subsequent marriage contemplated

What mistake in identity in Art. 41 in cases of presumptive death of one of the spouses and
covers before termination of the same shall be considered legitimate.
This is so because the children have been conceived either
inside a valid bigamous marriage or inside a valid marriage
despite the non-observance of Art. 40, 52 and 53.
v This status shall be maintained even if one of the
contracting parties is in bad faith.
When subsequent Subsequent marriage in cases of presumptive death under Article

marriage is void 41 can only be considered void if, according to Article 44, both
spouses were in bad faith in contracting the subsequent marriage.
The effect of the termination of the subsequent marriage on the

Effect on property regime property regime, whether ACP or CP, is the same. The property
regime shall be dissolved and liquidated. After payment of all debts
and obligations of the ACP or CP, the spouses shall divide the
property equally or in accordance with the sharing stipulated in the
valid marriage settlements.
Effect of bad faith If either of the spouses acted in bad faith, the guilty spouse shall
not get his share in the net profits of the property regime. His or
her share shall be forfeited in favor of the common children.
Bance, Shayne Amor


Civil Law 77

v In the absence of the latter, the children by previous

marriage of the guilty spouse shall be given the share of
the latter.
v Finally, in the absence of common children and children by
previous marriage of the guilty party, the share of the
latter shall be forfeited in favor of the innocent spouse.
Donations are essentially gratuitous. Hence, if both parties are in

Effect on donations good faith, the donation by reason of marriage shall be valid even
in the event that the subsequent marriage has been terminated. It
shall also be valid even if the donor acted in bad faith in
contracting the marriage.
The donation is revoked or terminated ipso jure if it is the donee

When donation is who acted in bad faith. This rule applies with more reason if both
terminated parties acted in bad faith considering that in such a case, the
marriage is void in accordance with Art. 44 and therefore, the
principal consideration for such donation does not exist.
Parties should recover, It may be argued that since the fault is on the part of both
even if both are in bad contracting parties, neither may recover what he has given by
faith; estoppel does not virtue of the contract. However, this should not apply considering
apply the express mandate of Art. 44 and because marriage is a special
contract vested with public interest.
Also the doctrine of estoppel on both parties will not apply
considering that such doctrine is not applicable if public
policy is violated.
The spouse who contracted the subsequent marriage in bad faith

Effect on inheritance shall be disqualified to inherit from the innocent spouse by testate
and intestate succession.
However, the innocent spouse may still inherit.
Effect if both are in If both parties in the subsequent marriage are in bad faith, such
bad faith marriage is void and, according to Article 44, testamentary
dispositions made by one in favor of the other are revoked by
operation of law.
If a marriage is void, the contracting parties cannot
likewise inherit by intestate succession because no legal
relation binds them.
Art. 45. A m arriage m ay be annulled for any of

the follow ing causes, existing at the tim e of the
m arriage:
Voidable marriages (1) That the party in w hose behalf it is sought
to have the m arriage annulled w as 18
years of age or over but below 21, and
the m arriage w as solem nized w ithout the
consent of the parents, guardian or
person having substitute parental authority
over the age of 21, such party freely
Bance, Shayne Amor


Civil Law 78

cohabited w ith the other and both lived

togetheras husband and w ife;
(2) That either party w as of unsound m ind,
unless such party after com ing to reason,
freely cohabited w ith the other as
husband and w ife;
(3) That the consent of either party w as
obtained by fraud, unless such party
afterw ards, w ith full know ledge of the
facts constituting the fraud, freely
cohabited w ith the other as husband and
w ife;
(4) That the consent of either party w as
obtained by force, intim idation or undue
influence, unless the sam e having
disappeared or ceased, such party
thereafter freely cohabited w ith the
other as husband and w ife;
(5) That either party w as physically incapable
of consum m ating the m arriage w ith the
other, and such incapacity continues and
appears to be incurable; or
(6) That either party w as afflicted w ith a
sexually transm issible disease found to be
serious and appearas to be incurable.
The grounds for annulment are only those specified by law. Any
Grounds are exclusive ground not provided by law cannot be invoked to annul a marriage.
The exclusivity of the grounds is in line with the policy of the State
to enhance the permanence of marriage.
The law considers persons of the age of at least 18 and below 21

as not possessing that degree of maturity to be able to
No Parental Consent comprehend thoroughly the consequences and serious
responsibilities of marital relations.
To successfully invoke unsoundness of mind as a ground for

annulment, there must be such a derangement of the mind to
Unsound mind prevent the party from comprehending the nature of the contract
and from giving it to his free and intelligent consent.
What constitutes mental The mental incapacity must relate specifically to the contract of
incapacity marriage in order to affect it, and therefore any form of mental
disease that does not render the afflicted party incapable of
understanding or assenting to the marriage contract cannot be
used as a basis for attacking the validity of the marriage.
Bance, Shayne Amor


Civil Law 79

Burden of proof, on It is generally held that the burden of proof of insanity rests upon
whom rests him who alleges insanity or seeks to avoid an act on account of it,
and it devolves upon him to establish the fact of insanity by a
preponderance of evidence.
If, however, a previous state of insanity is proved, the
burden of proof is then usually considered to shift to him
who asserts that the act was done while the person was
sane, though it has been frequently held that insanity
which is not shown to be settled or general as
contradinguished from a mere temporary aberration or
hallucination will not be presumed to continue until the
contrary is show.
Fraud refers to the non-disclosure or concealment of certain

Fraud circumstances which materially affect the essence of marriage.
Hence there is no fraud when there is no concealment or there
is disclosure.
The circumstances of fraud are those

Grounds of fraud, specified in Article 46 of the same Code.
Discussion in
The enumeration is exclusive. Hence,
exclusive Art. 46
any act of fraud not included in Art. 46
cannot be invoked to annul a marriage.
Explicitly, the last par. Of Article 46 provides that no other

All other grounds, misrepresentation or deceit as to character, health, rank, fortune or
chastity shall consitute fraud.
merely accidental
These circumstances are accidental matters not going into the
essence of the marriage and not affecting the free consent of
the injured party thereto since it is the duty of the parties to
inform themselves of such matters before entering into a
contract of marriage.
One of the essential requisites for a valid marriage is that the

consent of both parties must be freely given. Consent must not be
Vitiated Consent obtained by force, intimidation or undue influence.
What constitutes It is not necessary that the coercion or force be such as a person
coercion of ordinary physical and mental stability would be unable to resist,
and that if either party is mentally incapable of resisting the
improper pressure applied, there is no consent such as the law
requires.
Violence constituting duress may be physical or moral –
that is, it may consists of the coercion of the person
continuing down to the moment of the celebration of the
marriage or of the coercion of the will by antecedent
threats of bodily harm.
What constitutes There is intimidation when one of the contracting parties is

intimidation compelled by a reasonable and well-grounded fear of an imminent
and grave evil upon his person, or property, or upon the person or
upon the person or property of his spouse, descendants or
Bance, Shayne Amor


Civil Law 80

ascendants, to give his consent.
Factors to consider in To determine the degree of intimidation, the age, sex and
intimidation condition of the person shall be borne.
Quantum of evidence, The vitiated consent must be proven by preponderance of evidence

vitiated consent which may include the actuations of the parties previous to the
marriage.
Criminal liability attaches on anyone who uses violence,

Criminal liability in cases
intimidation and fraud in contracting a marriage. Thus, Art. 350 of
of fraud, intimidation
the RPC provides that if either of the contracting parties shall
and violence obtain the consent of the other by such means, he shall be
punished by prision correccional in its max period.
Denotes the permanent inability on the part of one of the spouses

Incapacity to consummate to perform the complete act of sexual intercourse.
Non-consummation of a marriage may be on the part of the

Causes for non-
husband or of the wife and may be caused by a physical or
consummation, not structural defect in the anatomy of one of the parties or it may be
limited to physical due to chronic illness and inhibitions or fears arising in whole or in
part from psychophysical conditions. It may also be caused by
psychogenic causes, where such mental block or disturbance has
the result of making the spouse physically incapable of performing
the marriage act.
Mere refusal is not the

Mere refusal of one party without being physically incapable, to
same as physical engage in sexual intercourse, is not the same as physical
incapacity incapability of consummating the marriage.
Hence, if a husband can attain erection but is
psychologically inhibited in engaging in sexual intercourse
despite his erection, this situation will not fall under
impotency as contemplated in the FC.
Burden of proof; GR: An adult male is presumed to have normal powers of virility.
presumption of Whoever alleges the incapacity has the burden of proving the
potency same. Generally, incapacity to engage in sexual intercourse cannot
be presumed but must be proven by preponderance of evidence.
Impotency being an abnormal condition, should not be
presumed. The presumption is in favor of potency.
Rule of Triennial A presumption of impotence may arise if the situation comes within
Cohabitation; the purview of the rule of triennial cohabitation.
If the wife remains a virgin for at least 3 years from the
presumption of
time the spouses started cohabiting, the husband must
impotence
show that he was not impotent during the said period and
the burden will be upon him to overcome this presumption
of impotence.
Bance, Shayne Amor


Civil Law 81

Sterility, not a ground Sterility is not impotency. A sterile person can successfully engage
for annulment in sexual coition.
v Sterility does not imply want of power for copulation.
Hence, sterility is not a ground for annulment.
If the sexually transmissible disease were concealed at the time of

Sexually transmissible disease the marriage ceremony, it constitutes fraud.
v The STD need not even be incurable.
v If the STD is not concealed, it can still be a ground for
annulment of marriage provided that the STD, unlike in
case of fraud, is serious and incurable.
STD must have been If the venereal disease were obtained after the marriage
acquired prior to ceremony, it cannot be a ground for annulment. However, it can
marriage be used as evidence of sexual infidelity which is a ground for legal
separation considering that, generally, such disease is
communicated through sexual contact.
It is the policy of the State to enhance and promote the

permanence of marriage. Everything must be undertaken to
Ratification preserve the marriage and uphold the family as an integral unit.
Hence, if there are circumstances to show that despite the
presence of some defects at the time of the marriage ceremony
but parties subsequently manifest their approval of the marital
union, a decree of annulment cannot properly issue.
Cohabitation, ratifies Ground How ratified

most grounds for No parental If the contracting party who needed the
annulment consent parental consent if he or she freely
cohabited with the other as husband and
wife after the age of 21.
v It is only the free cohabitation
after reaching 21 that would
constitute ratification.
Insanity If the contracting party, after coming to
reason, freely cohabits with the other.
Fraud If, with full knowledge of the fraud, freely
cohabits with the other.
Vitiated If the injured party, after the
consent disappearance or cessation of the force,
intimidation and undue influence, freely
cohabits with the other.
If the ground relied upon is either the incurable physical incapacity

Cohabitation, does not
to consummate the marriage or the affliction of either party of an
ratify incurable physical incurable sexually-transmissible disease, both existing at the time
incapacity and STD of the marriage ceremony, the mere free cohabitation will not ratify
the annullable marriage.
v Even if the impotency or STD is known to both
parties prior to the marriage, the injured party can
still file a case for annulment on the said grounds.
v This is because the grounds are not based on
defective consent, but based on the fact that
impotency or disease is incurable.
Bance, Shayne Amor


Civil Law 82

Art. 46. Any of the follow ing circum stances shall

constituted fraud referred to in Num ber 3 of
Fraud the preceding Article:
(1) Non-disclosure of a previous conviction
by final judgm ent of the other party of a
crim e involving m oral turpitude;
(2) Concealm ent by the w ife of the fact that
at the tim e of the m arriage, she w as
pregnant by a m an other than her
husband;
(3) Concealm ent of sexually transm issible
disease, regardless of its nature, existing
at the tim e of the m arriage; or
(4) Concealm ent of drug addiction, habitual
alcoholism , or hom osexuality or
lesbianism existing at the tim e of the
m arriage.
No other m isrepresentation or deceit as to

character, health, rank, fortune or chastity shall
constitute such fraud as w ill give grounds for
action for the annulm ent of m arriage.
(1) Non-disclosure of previous conviction of a crime involving

What constitutes fraud moral turpitude;
(2) Concealment of pregnancy;
(3) Concealment of STD, regardless of nature;
(4) Concealment of drug addiction and habitual alcoholism
(5) Concealment of homosexuality or lesbianism
To constitute fraud, the party must have been convicted by final

Conviction judgment of a crime involving moral turpitude.
The marriage will be annulled where it was brought about
by a person’s false representation as to his standing in
society, so that not only would life be abhorrent to a
person of ordinary instincts and refinement, but every
purpose of the marriage relation would be defeated.
No duty to investigate It is not necessary for the other party to investigate the other in
on the part of the order to determine whether the latter has a criminal record, and
innocent party his or her failure to do so will not bar a case for annulment on this
ground if it later develops that the party concerned has been
convicted of a crime before the marriage.
The law limits the ground to the wife only.

If the wife is pregnant by another man, the husband would
Pregnancy be misled in devoting all his attention and care on
somebody else’s child. In addition, compared to
pregnancy, the fact of the husband’s having a child in a
concealed prior relationship is speculative and difficult to
prove.
Bance, Shayne Amor


Civil Law 83

Bad faith, necessary The concealment must be done in bad faith.

Hence, if the woman, after having sexual intercourse with
another man previous to the marriage was diagnosed as
not pregnant for she is barren and thereafter married her
fiance believing that she was not pregnant, the marriage
cannot later be annuled.
v There was no bad faith on her part. She could not
even be guilty of concealment.
Mere pregnancy, not Mere pregnancy at that time is not sufficient to annul the marriage
sufficient; there must be on this ground. There mustbe concealment of such pregnancy.
concealment v However, if the woman did not expressly inform the man
of her pregnancy but such physical condition was readily
apparent to the man, he cannot claim lack of knowledge of
such pregnancy. (Buccat v. Buccat, 72 Phil 19)
If a woman misrepresented to her fiance that she was pregnant for

Misrepresentation as to the purpose of inducing her fiance to marry her when in fact she
pregnancy to induce was not pregnant, such fiance, who entered into the contract of
marriage, not a ground marriage principally because of such inducement, cannot annul the
marriage under Art. 46(2) considering that there was in afct no
pregnancy to conceal.
The nature or gravity of the disease is irrelevant to invoke this

ground. It is enough that there is concealment of the STD at the
Sexually Transmissible Disease
time of the marriage ceremony.
Have been defined as the habit of becoming intoxicated and that

Drug addiction and alcoholism the nature and extent of the drunkenness must be such that the
person by frequent indulgence may be said to have a fixed and
irresistible habit of drunkenness, whereby he has lost the power or
will to control this appetite for intoxicating liquor as when he
indulges in the practice of becoming intoxicated whenever the
temptation is presneted and the opportunity is offered.
A person does not have to drink all the time, nor necessarily be
Drunkard, def. incapacitated from pursuing during the working hours of the day,
ordinary unskilled manual labor. One who is a habitual drunkard is
one who has a fixed habit of frequently getting drunk.
v It is not necessary that he be constatly or universally
drunk, nor that he have more drunken than sober hours.
v It is enough that he has the habit so firmly fixed upon him
that he becomes drunk periodically, or that he is unable
to resist when the opportunity and temptation presented.
Rationale, why ground Habitual drunkenness is a ground to sever the marriage relations
for annulment not merely because it disqualifies the party from attending to
business, but in part, if not mainly, because it renders him unfit for
the duties of the marital relations and disqualifies him from
properly rearing and caring for the children born of the marriage.
Bance, Shayne Amor


Civil Law 84

Since the very institution of marriage is based on trust and the

Homosexuality difference of sexes, both in the physical and psychological
constitution of the parties, a lesbian or homosexual, who is
disposed to have affection toward the same sex to the extent that
having relations with the other sex to him or her is repugnant may
not serve the purpose of the law mandating a heterosexual
relationship.
It is the concealment, It is not homosexuality or lesbianism per se that is the ground, but
not the homosexuality the concealment of such sexual orientation.
that is the ground.
Art. 47. The action for annulm ent of m arriage

m ust be filed by the follow ing persons and
Action for annulment w ithin the periods indicated herein:
(1) For causes m entioned in Num ber 1 of
Article 45, by the party w hose parents or
guardian did not give his or her consent,
w ithin 5 years after attaining the age of
21; or by the parent or guardian or
person having legal charge of the m inor,
at any tim e before such party reached
the age of 21;
Article 45, by the sane spouse w ho had
no know ledge of the other’s insanity; by
any relative, guardian or person having
legal charge of the insane, at any tim e
before the death of either party; or by
the insane spouse during a lucid interval
or after regaining sanity;
Article 45, by the injured party, w ithin 5
years after the discovery of the fraud;
Article 45, by the injured party, w ithin 5
years from the tim e the force,
intim idation or undue influence
disappeared or ceased;
(5) For causes m entioned in Num bers 5 and
6 of Article 45, by the injured party,
w ithin 5 years after the m arriage.
Nature of annulment Annulment cases are actions in rem, for they concern the status of
case the parties and status affects or binds the whole world.
v The res is the relation between the said parties, or
their marriage tie.
v Jurisdiction over the same by the RTC depends upon
the nationality or domicile of the parties, not the place
of the celebration of the marriage, or the locus
celebrationis.
Bance, Shayne Amor


Civil Law 85

Grounds, who may file Ground Party to File Prescription Period

and prescriptive period; the Suit
Table 1. No parental a. Parent or Anytime before “no-
consent guardian having consent party”
legal charge of reaches the age of
“no-consent party” 21.
b. No consent Within 5 years after
party attaining 21.
2. Insanity a. Sane spouse At any time before
without knowledge death of either
of insanity party.
b. Relative, At any time before
guardian or death of either party
persons having
legal or insane
c. Insane spouse During lucid interval
or after regaining
sanity
3. Fraud Injured Party Within 5 years after
discovery of fraud
4. Vitiated consent Injured party Within 5 years from
time force,
intimidation, or
undue influence
disappeared or
ceased.
5. Incapability to Injured party Within 5 years after
consummate/STD the marriage
ceremony.
Parents, guardians
Who can file The parents, guardian or person having legal charge of the child
can never file an annulment case on a ground other than those
provided in Article 45(1) and (2), even if he or she alleges a cause
of action on behalf of the child.
Sane spouse
If the sane spouse knew of the insanity previous to the marriage,
such sane spouse cannot file the suit for annulment as he or she is
already estopped.
The injured party

In cases of fraud, vitiated consent or incapability to
consummate/STD, no other person can file the case but the injured
party.
The starting points of the prescriptive period differ depending on

Prescriptive period the ground invoked.
v However, it should be emphasized that except for the
grounds of incurable physical incapacity to consummate
and incurable STD, the other grounds are subject to the
rule on ratification.
Bance, Shayne Amor


Civil Law 86

Art. 48. In all case of annulm ent or declaration

of absolute nullity of m arriage, the court shall
Collusion order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State
to take steps to prevent collusion betw een the
parties and to take care that evidence is not
fabricated or suppressed.
In all cases referred to in the preceding
paragraph, no judgm ent shall be based upon a
stipulation of facts or confession of judgm ent.
Procedure in annulment The procedure is governed by SC En Banc resoltuion in A.M. No.

02-11-01-SC effective March 15, 2003.
v Complaint must be filed with the proper RTC and the
defendant shall be given 15 days from receipt of summons
and copy of complaint to answer.
v In the event that defendant fails to file an answer, he or
she cannot be declared in default unlike in ordinary civil
cases.
v Court will order full-blown hearing of the case where the
fiscal shall appear on behalf of the State to make sure that
there is no collusion or the evidence is not fabricated.
A.M No. 02-11-01-SC or Rule on Nullity and

Annulment cases is excluded from the coverage
In all cases, a full-blown hearing must be undertaken where the

Full-blown hearing parties are duty-bound to prove their grounds by preponderance of
required evidence.
v Summary proceedings are not allowed.
Role of Fiscal and The prosecuting attorney or fiscal must be present.

SolGen v The Office of the Solicitor General can nevertheless
intervene in the proceeding considering that the issue of
the validity of marriage is vested with public interest.
v Role of the OSG
1. To prevent collusion or that evidence is not
fabricated
2. To defend a valid marriage and to expose an
invalid one.
The parties come up with an agreement making it appear that the

Collusion, def. marriage is defective due to the existence of any of the grounds for
the annulment of marriage or the declaration of its nullity provided
by law and agreeing to represent such false or non-existent cause
of action before the proper court with the objective of facilitation
the issuance of a decree of annulment or nullity of marriage.
Bance, Shayne Amor


Civil Law 87

Stipulation of facts or The annulment or nullity decree cannot be issued by the court on
confession of judgment; the sole basis of a stipulation of facts, or a confession of judgment.
not allowed v The prohibition expressed is predicated on the fact that the
institutions of marriage and of the family are sacred and,
therefore, are as much the concern of the State as of the
spouses.
v Because the State and the public have vital interest in the
maintenace and preservation of these social institutions
against desecration by collusion between the parties or by
fabricated evidence.
When stipulation of facts However, stipulation of facts or confession of judgment, if

or confession of sufficiently supported or corroborated by other independent
judgment be allowed substantial evidence to support the main ground relied upon, may
warrant an annulment of a marriage or the declaration of nullity of
the same.
Art. 49. During the pendency of the action and

in the absence of adequate provisions in a
Support and Custody w ritten agreem ent betw een the spouses, the
court shall provide for the support of the
spouses and the custody and support of their
com m on children. The Court shall give
param ount consideration to the m oral and
m aterial w elfare of said children and their
choice of the parent w ith w hom they w ish to
rem ain as provided for in Title IX. It shall also
provide for appropriate visitation rights of the
other parent.
When the annulment of marriage or declaration of nullity suit is

Support of spouses and being tried, the support of the spouses and the custody and
custody of children support of the common children shall be governed by whatever
agreement the parties have made with respect to the same.
v Principally, the spouses and their children shall be
supported from the properties of the ACP or the CPG as
the case may be during the pendency of the suit.
Recipient of support If it is shown that the party receiving support is not entitled to the
must return amount support because his or her marriage with the one giving the
support is void ab initio, the court shall order the recipient to return
with legal interest if
to the person who furnished the support the amounts already paid
later on found to be
with legal interest from the dates of actual payment (Sec. 7, Rule
unentitled 61 of the 1997 Rules of Civil Procedure).
Visitation rights While custody of a child may be awarded to a particular parent,

this does not deprive the other parent from exercising his or her
visitorial rights unless the court, for some compelling reason,
deprives him or her of this right.
Bance, Shayne Amor


Civil Law 88

Visitation rights, case Silva v. CA, 275 SCRA 604

v Silva and Gonzales lived together and had 2 children. They
later separated and Gonzales married a foreigner. RTC
granted custody to Gonzales but allowed Silva to visit on
the weekends. CA denied the visitorial rights of Silva.
v There is no doubt that in all cases involving a child, his
interest and welfare is always the paramount
consideration. However, a few hours spent by Silva with
the children could not be that detrimental to the children.
Art. 50. The effects provided for in paragraphs

(2), (3), (4) and (5) of Articles 43 and in Article 44
Effects of nullity and shall also apply in proper cases to m arriages
annulment w hich are declared void ab initio or annulled
by final judgm ent under Articles 40 and 45.
The final judgm ent in such cases shall
provide for the liquidation, partition and
distribution of the properties of the spouses, the
custody and support of the com m on children,
and the delivery of their presum ptive legitim es,
unless such m atters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as w ell as of the
absolute com m unity or the conjugal partnership
shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dw elling and
the lot on w hich it is situated, shall be
adjudicated in accordance w ith the provisions
of Articles 102 and 129.
Art. 51. In said partition, the value of the

presum ptive legitim es of all com m on children,
Delivery of presumptive com puted as of the date of the final judgm ent
legitimes of the trial court, shall be delivered in cash,
property or sound securities, unless the parties,
by m utual agreem ent judicially approved, had
already provided for such m atters.
The children or their guardian, or the trustee
of their property, m ay ask for the enforcem ent
of the judgm ent.
The delivery of the presum ptive legitim es
herein prescribed shall in no w ay prejudice the
ultim ate successional rights of the children
accruing upon the death of either or both of
the parents; but the value of the properties
already received under the decree of
annulm ent or absolute nullity shall be
considered as advances on their legitim e.
Bance, Shayne Amor


Civil Law 89

Applicability of provision This provision only applies to void subsequent marriages, not to
on property regime other void marriages. This is because, a void subsequent marriage
is still governed by the ACP or CPG. On the other hand, a void
marriage on any other ground is governed by Articles 147 or 148
on the rules of co-ownership.
Unless there is a motion for reconsideration or an appeal made

Entry of Judgment and
after the decision, such decision will become final upon the
Decree of Nullity or
expiration of 15 days from receipt of the parties of the decision.
Annulment; procedure v Upon finality, the Entry of Judgment shall be issued.
Subsequently, a Decree of Absolute Nullity of Marriage or
Annulment of Marriage shall be issued. This decree shall be
the best evidence of nullity or annulment of marriage.
v However, the decree will issue only after the registrations
of the Entry of Judgment in the proper local civil registries
and of the approved partition and distribution of properties
of the spouses in the proper registry of deeds and the
delivery of the presumptive legitime.
Reason for why The reason for delivery of the presumptive legitime is to protect
presumptive legitime the legitime of the children against the result of subsequent
must be delivered marriages that might be contracted.
No need to delivery Except in the subsequent void marriage that may arise due to non-
observance of Art. 40 in relation to Articles 52 and 53, there is no
presumptive legitime
need for the delivery of the presumptive legitime after a marriage
is judicially declared void.
Art. 52. The judgm ent of annulm ent or of

absolute nullity of the m arriage, the partition
Recording in civil and distribution of the properties of the
registry spouses, the delivery of the children’s
presum ptive legitim es shall be recorded in the
appropriate civil registry and registries of
property; otherw ise, the sam e shall not affect
third persons.
Art. 53. Either of the form er spouses m ay m arry

again after com plying w ith the requirem ents of
Void subsequent marriage
the im m ediately preceding Article; otherw ise,
the subsequent m arriage shall be null and void.
Art. 54. Children conceived or born before the

judgm ent of annulm ent or absolute nullity of the
m arriage under Article 36 has becom e final
and executory, shall be considered legitim ate.
Legitimacy of children
Children conceived or born of the subsequent
m arriage under Article 53 shall likew ise be
legitim ate.
Bance, Shayne Amor


Civil Law 90

Liquidation and partition In case of nullity of marriage, the properties shall be liquidated in
of properties accordance with the ordinary rules of co-ownership.
v In Valdez v. RTC, the SC ruled that the liquidation process
provided under the chapters on the absolute community of
property and the conjugal partnership of gains will not
apply in a void marriage except in one exceptional case
which is the subsequent void marriage under Art. 40 of the
FC.
It must be pointed out that the observance or non-observance of

Need for recording only
the requirements of liquidation, partition, distribution and the
when marriage
delivery of the presumptive legitimes is crucially material in
judicially nullified or determining whether or not the subsequent marriage is void only if
annulled the previous marriages has been judicially nullified or annulled in
accordance with law.
v Hence, if the first marriage were terminated by the death
of one of the spouses and the surviving spouse remarried,
such subsequent marriage is valid even if there has been
no previous liquidation, partition, distribution and delivery
of the presumptive legitimes.
v The failure to liquidate will only be determinative of the
property regime that will govern the subsequent marriage.
Status of children Generally, children conceived AND born outside a marriage or

inside a void marriage are illegitimate.
v Children conceived OR born inside an annullable or
voidable marriage are legitimate while those conceived
AND born inside a void marriage are illegitimate except
those void subsequent marriages.
Bance, Shayne Amor


Civil Law 91

Marriage Cornell Notes

Uploaded by

Copyright:

Available Formats

Marriage Cornell Notes

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Marriage Cornell Notes

Uploaded by

Copyright:

Available Formats

Executive Order No. 209

v Signed on July 6, 1987 and took effect on August 3, 1988.

While the Constitution protects the Family, it does not establish

Art. 1. Marriage is a special contract of

While marriage is often termed a civil contract, to indicate that it

Bance, Shayne Amor

Upon which society is founded upon. It creates a social status or

In determining the validity of the marriage, it is to be tested by the

Philippine laws on 1988 Family Code ---- August 3, 1988 to present

A marriage between stepbrother and stepsister is void under the

Bance, Shayne Amor

State policy on Marriage as a special contract cannot be restricted by

Art. 2. No m arriage shall be valid, unless these

Art. 3. The form al requisites of m arriage are:

Essential requisites (1) Legal Capacity

Bance, Shayne Amor

Who may contract 1. Persons who have legal capacity:

No. Gender is determined at birth and is immutable. The mere

Two requirements of (1) Must be freely given

(2) Must be made in the presence of the solemnizing officer.

Bance, Shayne Amor

(a) Authority of the Solemnizing Officer;

Marriages exempt from (a) Marriages in articulo mortis (Art. 27)

The Family Code does not provide or prescribe a particular form of

Common-law A non-ceremonial or informal marriage by agreement, entered into

Common law marriages are not recognized in the PH. This is

Bance, Shayne Amor

Art. 4. The absence of any of the essential or

v Absence of any of the essential or formal requisites would

Defect v. Irregularity, A defect is an irregularity but not every irregularity is a defect. As

Absence (Void) Defect (Voidable) Irregularity (Valid)

Bance, Shayne Amor

d. Valid marriage license

No. A secret marriage is a legally non-existent phrase that

Is absence of witnesses Although significant amendments in the Family Code making a

Art. 5. Any m ale or fem ale of the age of 18 or

Art. 6. No prescribed form or religious rite for

Bance, Shayne Amor

And attested by the solem nizing officer.

It is only the appearance of both parties before the solemnizing

Art. 7. Marriage m ay be solem nized by:

Bance, Shayne Amor

Jurisdiction of the Courts

The jurisdiction of regional trial court judges and judges of inferior

Effect of absence of GR: Marriages solemnized by officers outside of their jurisdiction

Can a judge solemnize No, according to Gabriel v. Gabriel.

Bance, Shayne Amor

Limitation to authority Consuls, etc. can only solemnize marriage abroad.

Under the Local Government Code of 1991, the mayor of a city or

Art. 8. The m arriage shall be solem nized publicly

Bance, Shayne Amor

request the solem nizing officer in w riting in

Parties may request the solemnizing officer in writing to solemnize

Art. 9. A m arriage license shall be issued by the

This provision is useful in small communities where the people

v The solemnizing officer is not required to investigate whether

Bance, Shayne Amor

relationship of the contracting parties and the absence of legal