Reviewer Family Code Articles 1-40

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Family Code of the Philippines EO 209, as amended by EO 227 Formal Requisites of Marriage 1. Authority of the solemnizing officer 2.

A valid marriage license except in the cases provided for in Chapter 2 of this Title 3. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age Absence or Defect in Essential or Formal Requisites 1. If any essential or formal requisite is absent the marriage is deemed void ab initio 2. If there is a defect in any of the essential requisites, the marriage is voidable 3. If there is an irregularity in any of the formal requisites, the marriage is valid, but subjects the party/ies responsible for said irregularity to civil, criminal, and administrative liability Any male or female of the age of 18 years or upwards not under any of the impediments mentioned in Article 37 and 38, may contract marriage No prescribed form or religious rite for the solemnization of the marriage is required It is necessary, however, that the contracting parties appear personally before the solemnizing officer: and, declare in the presence of not less than two (2) witnesses of legal age that they take each other as husband and wife Common-Law Marriage (live-in relationship) one where the man and woman just live together as husband and wife without getting married Marriage by Proxy one where the other party is merely represented by a delegate or friend Rules on Marriages by Proxy

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family relations whose nature, consequences and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. Two Aspects of Marriage 1. A special contract

2.
Some 1. 2. 3. 4.

A status or an institution

Principles Union Of one man with one woman Reciprocal blessings Birth (one of the purposes of marriage is the procreation of children) 5. Rearing (of children by both parents) 6. Education of children

Marriage versus Ordinary Contracts 1. Marriage is both a contract and a social institution; ordinary contract merely a contract 2. Marriage generally, stipulations are fixed by law; ordinary contract stipulations are generally fixed by the parties 3. Marriage can be dissolved only by death or annulment; ordinary contract ended by mutual agreement and by other legal causes Offer or Marriage As a rule in rape cases, an offer of marriage is an admission of guilt Essential Requisites of Marriage 1. Legal capacity of the contracting parties who must be a male and a female 2. Consent freely given in the presence of the solemnizing officer

1. 2.

If performed in the Philippines, marriage is VOID If performed abroad, VALID provided valid where celebrated

Marriages between Filipino citizens abroad may be solemnized by a consulgeneral, consul, or vice-consul of the PHL The issuance of the marriage license and the duties of the civil registrar and the solemnizing officer shall be performed by said consular official Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar Determining Whether Parties Have Required Age for Marriage 1. Original Birth Certificates 2. In default thereof, Baptismal Certificates or copy of such attested by the person having custody of the originals 3. Current residence certificates 4. Instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths Note the presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar If Either of the Contracting Parties Had Been Previously Married Instead of birth or baptismal certificate, the party concerned is required to present: 1. the death certificate of the deceased spouse; or 2. the judicial decree of the absolute divorce; or 3. the judicial decree of annulment; or 4. declaration of nullity of the previous marriage Note Between ages 18 and 21 Consent of the father, mother, surviving parent or guardian, or persons having legal charge of the party, in the order mentioned, is required Between ages 21 and 25 Parental advice must be obtained

Marriage may be solemnized by: 1. Incumbent member of the judiciary within the courts jurisdiction 2. Priest, rabbi, imam, minister, duly authorized by his church, where at least one of the contracting parties belongs, and registered with the civil registrar general 3. Ship captain or airplane chief only in case of articulo mortis 4. Military commander only in case of articulo mortis 5. Consul-general, consul or viceconsul in marriages of Filipinos abroad Note Under the Local Government Code, mayors are now authorized to perform marriages within their jurisdiction When Public Solemnization is not needed 1. Marriages in chambers of the Justice or Judge 2. Marriages in articulo mortis 3. Marriages in a remote place 4. When both of the parties request in writing for solemnization in some other place Marriage license should be issued by the local civil registrar of the municipality where EITHER contracting party habitually resides Marriages of Exceptional Character (No marriage license is required) 1. In articulo mortis 2. in a remote place 3. Marriage of people who have previously cohabited for at least 5 years (ratification of marital cohabitation) 4. Marriages between pagan and Mohammedans Note Religious ratification of a valid marriage does not require a marriage license

Note If they do not obtain PARENTAL ADVICE, or it is unfavorable, the marriage license shall not be issued till after three months following the completion of the publication of the application therefore Note 1. Marriage counselling is now a requirement 2. 10-Day (consecutive) Publication also required Note Notice made to the local civil registrar of any impediment to the marriage shall not prevent the issuance of the marriage license after the 10-day publication unless otherwise ordered by competent court upon petition of the civil registrar at his own instance or that of any interested party Note Payment shall be collected before the issuance of marriage license. Indigent parties are the only exempt from fees on issuance of marriage license. Note Marriage license shall be valid in any part of the Philippines for a period of 120 days from the date of issuance Note Certificate of legal capacity issued by proper diplomatic or consular officials required for foreigners Note Marriage contract or marriage certificate is not an essential requisite of marriage. Failure the sign the same does not invalidate the marriage Proof of the Existence of a Marriage 1. Marriage certificate 2. Testimony of witnesses 3. Legal presumption that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage 4. Other evidence such as certificates of title of land Copies (4) of the Marriage Certificate must be made as follows: 1. one (1) for the contracting parties 2. two (2)for the local civil registrar (who must receive it

3.

within 15 days after the celebration); and, one (1) for the person solemnizing

Note Even if no one receive a copy, the marriage will still be valid Duties of the Local Civil Registrar 1. Prepare the documents required by the Code 2. Administer oaths to all interested parties Note Preparation of documents and the administration of oaths shall be done FREE; also, no documentary stamp is required 3. Enter all applications for marriage licenses filed with him in a registry book be data

Note Entries must chronological; pertinent must be recorded Marriages Celebrated Abroad

General Rule If valid where celebrated, it is also valid here in the PHL (Doctrine of lex loci celebrationis) Exceptions 1. Those contracted by parties below 18 years old; 2. Bigamous or polygamous marriages (Except falling under Article 41 presumptive death) 3. Those contracted through mistake of one contracting party as to the identity of the other 4. Subsequent marriages that are void under Article 53 a. Those entered into before the judgment of annulment or of absolute nullity of the previous marriage, b. Partition and distribution of properties of the spouses; and, c. Delivery of the childrens presumptive legitimes

5. 6.

7.

Psychological incapacity on the part of either of the contracting parties Incestuous marriages a. Between ascendants and descendants; and, b. Brothers and sisters, whether full or halfblood Those which are contrary to public policy a. Between collateral blood relatives, whether legitimate or illegitimate, up to 4th civil degree; b. Step-parents and stepchildren; c. Parents-in-law and children-in-law; d. Adopting parent and adopted child; e. Surviving spouse of the adopting parent and the adopted child; f. Surviving spouse of the adopted child and the adopter; g. Adopted child and legitimate child of the adopter; h. Adopted children of the same adopter; i. Between parties where one, with the intention to marry the other, killed the other persons spouse, or his or her own spouse

obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall likewise have capacity to remarry under Philippine law. (Art. 26, Paragraph 2) Note The rule does not apply if both parties are Filipinos Note if the foreign divorce is obtained by the Filipino spouse, the divorce is VOID Marriages Exempt from the License Requirement 1. In articulo mortis 2. in a remote place 3. Marriage of people who have previously cohabited for at least 5 years (ratification of marital cohabitation) 4. Marriages between pagan and Mohammedans Marriages in articulo mortis (point of death) are valid, provided that all the essential requisites are present, and that the parties are conscious of what they are doing. Signature of Dying Party It is advisable that a witness to the marriage should sign the dying partys signature if the latter is physically unable to do so, still if upon order of the solemnizing officer, another person should so sign, the marriage is still valid. Who can perform marriages in articulo mortis Ship captains, airplane chiefs or commanding officer, and all the other persons enumerated in Article 7 of the Family Code. Note Distinguish Danger of Death from Point of Death Remote place when the residence is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar Marriage in a remote place there is no required minimum or maximum distance, unlike that in the Civil Code Note For the purpose of proving the basis for exemption from marriage license, the solemnizing officer shall

Requirements to Prove a Foreign Marriage 1. Existence of pertinent provision of the foreign marriage law; and, 2. The celebration of the marriage in accordance with said law Note If a foreigner is validly married to more than one spouse, only the first marriage should be considered valid here in the PHL, for the purpose of cohabitation; but for the purposes of considering the legitimacy of children, the marriage are all to be considered as valid Note If a marriage between a Filipino and a foreigner is validly celebrated and a divorce is thereafter validly

execute an affidavit before the local civil registrar or any other person legally authorized to administer that the marriage is performed in articulo mortis or in a remote place. Note Failure of the solemnizing officer to execute an affidavit will NOT invalidate the marriage Civil registrar is given the original of the affidavit for the simple fact that he keeps the records of marriages taking place Note Failure to comply with this requirement DOES NOT invalidate the marriage Note Marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot during stopovers at ports of call Note Military commander who is commissioned officer shall have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians Note No judicial notice can be taken of Mohammedan rites and customs for marriage. They must be alleged and proved in court. Ratification of Marital Cohabitation - Requisites 1. Contracting parties must lived together as husband and wife for at least five years before the marriage they are entering into 2. No legal impediment must exist between them 3. Requirements must be stated in an affidavit before any person authorized by law to administer oaths 4. The necessary affidavit of the person solemnizing the marriage Note Even if the cohabitation begins when either or both the contracting parties are still minor/s, the marriage (ratification of marital cohabitation) would still be valid.

Void versus Voidable Marriages 1. Void marriages can never be ratified; voidable marriages can generally be ratified 2. Void marriages always void; voidable marriages valid until annulled 3. Void marriages can be attacked directly or collaterally; voidable marriages cannot be assailed collaterally 4. Void marriages no conjugal partnership (only coownership); voidable marriages there is conjugal partnership Kinds of Impediments in Marriages 1. Diriment impediment they make the marriage void; examples, close blood relations, prior existing marriage 2. Prohibitive impediment do not affect the validity of marriage, but criminal prosecution may follow 3. Absolute here the person cannot marry at all; example, those below 18 years old 4. Relative the prohibition is only with respect to certain persons; example, a brother cannot marry his sister Marriages Void Ab Initio 1. Those contracted by parties below 18 years old; 2. Solemnized by any person not legally authorized to perform marriages (unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so) 3. Those contracted without a license (except marriages in articulo mortis; marriages remote places; marriage of people who have previously cohabited for at least 5 years (ratification of marital cohabitation); marriages between pagan and Mohammedans 4. Bigamous or polygamous marriages (except falling

under Article 41 presumptive death) 5. Those contracted through mistake of one contracting party as to the identity of the other 6. Subsequent marriages that are void under Article 53 a. Those entered into before the judgment of annulment or of absolute nullity of the previous marriage, b. Partition and distribution of properties of the spouses; and, c. Delivery of the childrens presumptive legitimes Note Mail order brides prohibited/punished under RA6955 Psychological Incapacity The condition of a person who does not have the mind, will, and heart for the performance of marriage obligations; Also, the incapacity to comply with the essential marital obligations of marriage, namely: live together, observe mutual love, respect and fidelity, and render mutual help and support; and to procreate children thru sexual cooperation (Chi Ming Tsoi versus Gina La-Tsoi) Note This incapacity need NOT necessarily be manifested before or during the marriage although it is a basic requirement that the psychological defect must be existing at the time of the marriage (juridical antecedence) or during the marriage; also, the incapacity must be serious (gravity) and lasting condition Opinion Under Article 36 (Psychological Incapacity) we can conclude that we now have a semblance of absolute divorce here in the Philippines Note Psychological incapacity DOES NOT refer to mental incapacity tantamount to insanity (which merely renders the marriage voidable)

Note It is NOT a requirement that the defendant spouse be examined by a psychiatrist/psychologist Reasons of the Supreme Court Why Psychological Incapacity is Considered Ground for Nullity of Marriage 1. Psychological incapacity is a malady so grave and permanent as to deprive one of awareness of the duties and responsibilities of the matrimonial bond one is about to assume 2. It is the duty of the State to promote marriage as a foundation of the nation; there is a corresponding interest for the State to defend against marriages, ill-equipped to promote family life Psychological Incapacity must be characterized by: 1. Gravity it must be grave and serious 2. Juridical Antecedence it must be rooted in the history of the party antedating the marriage 3. Incurability it must be incurable or the cure would be beyond the means of the party involved Note Either spouse may file the action to declare the marriage void, even the psychologically incapacitated Guidelines in Interpreting and Applying Article 36 1. The burden of proof to show the nullity of the marriage belongs to the plaintiff, and any doubt must be resolved in favor of the existence of the marriage and against its nullity 2. The root cause of the psychological incapacity must be: a. Medically indentified b. Alleged in the complaint c. Sufficiently proven by experts d. Clearly explained in the decision 3. The incapacity must be proven to be existing at the time of the

4.

5.

6.

celebration of the marriage although the manifestation need not be perceivable at such time The incapacity must also be shown to be medically or clinically permanent or incurable. Furthermore, it must be relevant to the assumption of marriage, NOT to those not related to marriage like the exercise of a profession The illness must be grave enough to bring about disability of the party to assume the essential obligations of marriage The trial court must order the fiscal and the Solicitor General to appear as counsel for the State

3. 4. 5. 6. 7. 8. 9.

Parents-in-law and children-inlaw; Adopting parent and adopted child; Surviving spouse of the adopting parent and the adopted child; Surviving spouse of the adopted child and the adopter; Adopted child and legitimate child of the adopter; Adopted children of the same adopter; Between parties where one, with the intention to marry the other, killed the other persons spouse, or his or her own spouse

Note Psychological Incapacity must be established by the TOTALITY OF THE EVIDENCE presented during the trial Note Sexual infidelity is not sufficient proof that petitioner is suffering from psychological incapacity Incestuous Marriages The following are incestuous marriages and are void ab initio: 1. Between ascendants and descendants of any degree; and 2. Between brothers and sisters, whether of full or half-blood Computation of Degrees of Generation 1. Direct line count ALL who are included, then minus one. 2. Collateral line go up to the nearest common ancestor, then go down minus one Marriages Void Ab Initio Reasons of Public Policy for

Other Void Marriages 1. Marriages in a play, drama, or movie 2. Marriages between two boys and two girls 3. Marriages in jest 4. Common law marriages Note Roman Catholic priests may get married and have legitimate children The action or defense for the declaration of absolute nullity of a marriage shall NOT prescribe Void marriages must first be declared void for purposes of remarriage Note Final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage Note A marriage though void still needs judicial declaration of such fact before any party thereto can remarry

The following marriages are void from the beginning for reasons of public policy: 1. Between collateral blood relatives, whether legitimate or illegitimate, up to 4th civil degree; 2. Step-parents and step-children;

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