Persons and Family Relations

Midterms
Article 1: Definition of Marriage
Marriage
A special contract which calls for a
permanent union between a man & a
woman for the establishment of a family
life. Its nature, consequences and incidents
of marriage are governed by law and not
subject to the agreement of the parties.
This is an inviolable permanent social
institution.

The Supreme Court ruled that

a company policy prohibiting employees of the
same company from marrying each other is an
invalid exercise of management prerogative for
the failure of the employer to present any
evidence of business necessity of the
prohibition. Absence of such bona fide
occupational qualification renders the
policy invalid.

General Rule: The consequences of marriage are

governed by law and cannot be subject to the
compromise of both parties.
Exception: The choice of economic regime that
will govern their property relation during the
marriage.
Marriage is both a CONTRACT and a STATUS
Status:
- Marriage produces rights and imposes
obligations that are very personal in nature.
- This means that it is only the parties that
can exercise and are burdened with these
rights and obligations.
- The obligation to accompany each other or
in the mystery of creation is a personal
right.
Contract:
- This is a special one, not your run in the mill
contract.
- Marriage is a private affair but endowed
with public interest.
- In ordinary contract, the rule is liberality,
where the parties can always agree which
may be deemed proper so long as these are
not contrary to law.
- In marriage, this is not true. The nature,
incidents and consequences of marriage are
not subject to law.
- The only exception is on marital settlements
(pre-nuptial
agreements)
on
property
relations.
- It is along this line that future support
cannot be waived.

R.A. No. 6955: The Act

Prohibiting Mail Order Brides
This law penalizes any person or entity who
carries on a business of matching Filipino
women for marriage with a foreigner.
Marriage does not shed a spouses
integrity and right to privacy
The intimacies between husband and wife
do not justify any one of them breaking into
the drawers and cabinets of the other for
any telltale evidence of marital infidelity.
Any evidence obtained therefrom is
inadmissible in evidence.

Article 2-6: Essential & Formal Requisites for

Marriage

Essential Requisites

Legal Capacity
1. Only parties of opposite sex
- Determination is based on what the child
has at birth
- This determination is immutable and no
amount of surgical and scientific
intervention can change such determination
made at birth
Rommel Silverio vs. Republic of the
Philippines

Facts:
- Silverio was born male (hard and long)
- But when he grew older, he realized that he
feels like a woman. He thinks and acts female.
- He cant really find happiness in a situation if he
is trapped in a male body.
- He filed an action in court to change his gender
and along with it, change is name from Rommel
to Melly.
Ruling:
- The Court did not look kindly on Silverio. His
petition was rejected.
- The Supreme Court said that ones gender is
determined by birth by visual examination
made by the birth attendant by looking at the
childs genitals.
- The court, however, did not close its doors on
possible change of gender by surgical
operation.
- The problem of Silverio is that there is no law
that allows change of gender that allows
change of gender because of surgery.
- Sex re-assignment surgery, done in many
countries, is already a fact of life.

The rule laid down in Silverio will only apply when

the determination of the genitals of the baby is
clearly defined.

Republic vs. Cagandahan

Facts:
- What happens when the child has a condition
called CAH or intersex individuals?
- Intersexuality
Applies to human beings who cannot be
classified as either male or female because
they have the biological characteristics of
both a man and a woman.
Ruling:
- Where the person is biologically or naturally
intersex, the determining factor in his gender
classification would be what the individual, at
the time he reached the age of majority, with
good reason thinks of his/her sex. In this case,
the gender classification at his/her birth is
deemed inconclusive since it is only at maturity
is the gender of such person is fixed.
- It is the right of the person who has the choice
to determine how he wants to be identified.
This determination is respected by the courts.
2. On Age Requirement

This is legal capacity, ergo, determined by

the national law of the person pursuant to
Article 15 of the Civil Code.
If both applicants are Filipinos, they have to
go to the Local Civil Registrar and apply
there.
For 18-21, parental consent is need
absence of which will render the
marriage voidable.
For 21-25, parental advise is needed
absence of will delay the issuance of
the marriage license by the Local
Civil Registrar for 3 months.
On Foreigners:
Article 21: If both of the applicants for a
marriage license are citizens of a foreign
country, instead of requiring to submit a
birth certificate or a baptismal certificate,
they are required to submit a certificate of
legal capacity to contract marriage issued
by their own consular office.
This may result to, say, a marriage between
an 18-year-old Filipina and a 15-year-old
German national.
On Stateless Persons
You cannot apply nationality theory because
the person is a citizen of no country. The
nationality theory will not apply.
Article 21: He only has to submit an
affidavit showing such legal capacity. The
affidavit shall show the circumstances by
which it can be inferred that the party is
legally capacitated to contract marriage.
But whose law will determine?
o PIL: While it impossible for an individual
to have no citizenship, it is impossible
for an individual to be without domicile.
(Domiciliary Theory)
o Suppose a person is not a domicile of
any country, and only lives in the high
seas, determine the temporary domicile.
It will then be logically inferred that the
place where he applies for marriage is
where his temporary domicile is. The
laws of the temporary domicile will then
prevail.
o Distinction
with
Lex
Loci
Celebrationis: Only the effect is the
same. It is not accurate to say that this
principle applies to the legal capacity of
stateless persons.

3. Absence of any legal impediment

- The parties must be free from any legal
impediments
- What must be absent?
o By reason of relationship: must be not
less than 4th degree from ascendant or
1st degree of consanguinity.
o By reason public policy: Marriages
mentioned in Article 38.
Sirs obiter: The marriage between
the adoptive parent and child of the
adopted child is nothing which is why
they are allowed to marry.
On surviving spouse and adoptive
parent: This does not apply when the
marriage is dissolved by judicial
declaration of nullity or annulment.
Only applies when one of them
actually dies.
o Previous marriage and the manner it got
dissolved. (Article 53 marriages)
o When a marriage is declared void
under Article 40, the declaration
should also include the partition,
resolution
and
registration
on
properties. This also includes the
recording of the lands to the
respective Registration of Deeds to
where the properties are located.

They did not actually intend to be bound by

the effects of marriage.
b. Mistake in identity of the party
- The consent should be with the other party
and not someone else.
Do not confuse consent with motive.
- Motive is not a requisite for marriage, neither is
it a legal impediment.
Republic of the Philippines vs. Liberty Albios
Facts:
- A case where the wife agreed to marry the
husband to be able to acquire his citizenship
- The husband also agreed because he would be
paid $2,000.
- After the marriage, the American husband
vanished into thin air and failed to help the
wife.
- Albios filed for the declaration of nullity on the
ground of lack of consent because they entered
into the marriage without any intention to
establish a conjugal and family life.
Ruling:
- There is consent as long as the parties intended
to be bound by the contract of marriage,
regardless of their motives.
- The wife contracted marriage in order to
facilitate the acquisition of the citizenship.
- She also knows too well that in order to do that,
she must be bound by a valid marriage.
- The premise of entering the marriage was
clearly entering into a valid marriage.

It is only when these three requirements are all

present that a person may be deemed to have
legal capacity.

Formal Requisites

Consent Freely Given

- Do not confuse this with vitiated consent
a) Given in the presence of the solemnizing
officer
b) with at least 2 witnesses of legal age.
The consent does not need to be expressed
since it can be deduced from the acts of the
parties showing that they take each as
husband and wife.

Authority

of

Solemnizing

Officer
The person who solemnized the marriage
must be among those authorized in Article 7
of the Family Code to solemnize the
marriage.
The authority of the solemnizing officer to
solemnize the marriage is presumed unless
it is otherwise proven.
It is not the duty of the solemnizing officer
to scrutinize the marriage license.

When is there absence of consent?

Examples:
a. Marriage in jest

General Rule: Defect in the authority of the

solemnizing officer will render the marriage
void.

4. Military commander provided they follow the

requisites:
a. He must be a commissioner officer with a
rank of 2nd lieutenant ensign and above of
the commanding military unit where the
chaplain is assigned.
b. The assigned chaplain is absent at the time
of marriage is solemnized.
c. The marriage must in articulo mortis
d. The contracting parties must be a member
of his unit or a civilian.
e. The marriage must be done in the zone or
area of military operation.
f. There must be a widespread military activity
over an area and does not refer to a
simulated exercise.
5. Consul-General or Vice Consul or Consul
can solemnize a marriage if both parties are
Filipino and the marriage is done abroad. The
consul is not only the solemnizing officer but
performs the duties of the civil registrar by
issuing the marriage license.
- The marriage between a Filipino and a
foreigner by a consul is not considered valid.
6. Mayors, vice mayor or acting mayor can
solemnize marriages by virtue of the Sec. 444
of the Local Government Code which took effect
on January 1, 1992.
- The only time they are allowed to solemnize
outside their jurisdiction is when there is a
request of their venue is writing.
- If this isnt followed, the marriage is still
valid but will subject the mayor to liability.

Exception: If either one or both of the parties

believe in good faith that the person who
solemnized their marriage is authorized by law
to do so, then the marriage is considered valid.
Article 7: Persons Authorized to Solemnize
Marriage
This is a manifestation that the State is a party
of the contract as it is represented by the
solemnizing officer.
1. Any incumbent member of the judiciary
can solemnize a marriage only when the
ceremony is held within its territorial
jurisdiction, otherwise it is a mere irregularity.
- Only
incumbent,
not
resigned
nor
terminated
- If this is not followed, the marriage
solemnized outside of the jurisdiction is
valid but judge is subject to administrative
liabilities.
- Cases:
Navarro vs. Domagtoy
Aranes vs. Occiano
Berso vs. Daguman
2. A priest, an imam, a rabbi, a minister or
pastor following this certain conditions:
a. Registered with the Civil Registrar General
b. Must be authorize by his/her church or
religious sect.
c. Must act within the limits of the written
authority granted to him by his church or
religious sect.
d. At least one of the contracting parties
belongs to the solemnizing officers church
or religious sect.
3. A ship captain or airplane chief can
solemnize marriage only if one of the parties is
at the point of death and that the parties
must be passengers or crew members of the
ship or airplane while it was in transit.
- This includes stopovers
- Given the nature of the situation, where a
voyage may have the possibility of extreme
emergencies. (Dili labot nang mu-sink na ha,
just the requirement of dying)

GOOD FAITH MARRIAGES (Art. 35, par. 2) if one

or both of the parties believe in good faith that the
solemnizing officer actually has authority, but in
truth, does not, the marriage is still valid but will
subject the person responsible for to civil, criminal
and civil liability.
- But then again, know the distinction
between mistake of fact and mistake of law.
- It is only in the mistake of fact that the
marriage is valid. If it is mistake of law, the
marriage is void.

Valid Marriage License

This is considered the most important requisite

in the validity of marriage since it is in the
issuance of the license that the State can
determine
whether
or
not
there
are
impediments in the marriage.
The marriage license must be secured from the
Local Civil Registrar of the place where either
party resides, which takes 10 days from
application before it is issued.
The license will be valid for 120 from the date of
issuance.
Absence of marriage license will render the
marriage void only when it is supported by the
certification from the local civil registrar that no
such marriage license was issued to the parties.
Any irregularities in the issuance of the
marriage license will not render the marriage
void as long as it does not affect the legal
capacity of both parties.
The requirements are enumerated in Art. 11-16.
But even if one or both of the contracting
parties are suffering from a legal impediment
and the local civil registrar knows about it, he
CANNOT refuse to issue the marriage license.
He can prevent the marriage from happening by
going to court and file for an injunction. It is the
court that orders the marriage to not proceed.
The application for marriage license will be
posted in the bulletin board and 2 conspicuous
places in order to inform the public that two
people want to get married. The publication will
last for 10 days.
Only the Local Civil Registrar where at least one
of the applicants is a resident can issue the
marriage license

He must execute an affidavit before the LCR

stating that he solemnized the marriage under
articulo mortis and the he took all the
necessary steps to ascertain the age and
relationship of the contracting parties and that
he is convinced that they have no legal
impediments to marry each other.
The original affidavit must submitted by him to
the LCR where the marriage was performed
within a period of 30 days

2. Article 28: Marriage in a Far and

Remote Place
- If the parties are residing in a far and remote
place that it is difficult for them to secure the
required marriage license because their place
has no means of transportation, they will
exempted from the license requirement.
Duty of the person who solemnized the marriage:
- He must execute an affidavit after the
celebration of the marriage stating that he
solemnized the marriage in a far and remote
place and the ascertained the age and
relationship of the parties and the absence of
any legal impediments.
The reason for this is to encourage
couples to marry and legalize their
relationship instead of cohabiting in an
illicit relationship.

Exceptions to the requirement of marriage

license:
1. Article 27-32: Marriage under Articulo
Mortis
Articulo Mortis (Point of Death) Marriage
- This is a marriage done wherein one of the
party is at the point of death. This kind of
marriage can be solemnized w/out the need
of a marriage license for necessity and
practicability.
- This can be solemnized by a ship captain or
airplane chief or a military commander, all of
which must be in according to article 7 of the
family code.
Duty of the person who solemnized the marriage
under Articulo Mortis:

3. Article 33: Marriages among Muslims

or
Members
of
Ethnic
Cultural
Communities
Code of Muslim Personal Laws of the Philippines
- Signed into law on Feb. 4, 1977
- This is the governing law on persons and
family relations among Muslims.
- Under this law, marriage license is not
required for the validity of the marriage.
- Under the family code, marriage license is
not a requirement for the validity of the
marriage provided that both parties must be
a Muslim or a member of the Ethnic
Community.
4. Article 34: Ratification of Marital
Cohabitation
When the parties have already been living
together as husband and wife for at least 5
years without any legal impediments to marry

each other, the requirement of a marriage

license is no longer needed.
- This is to not shame the people involved as a
common law marriage is a source of humiliation
to the parties.
Requisites:
a. The party must live together as husband
and wife for at least 5 years.
b. There must be no legal impediments for
them to marry each other.
What to do:
1. Both parties must execute a joint affidavit
stating the foregoing fact and have it
notarized by a person duly authorized to
administer the oath.
2. The Solemnizing officer must ascertain first
the qualifications of the contracting parties
if there are any legal impediments.

The SC said that one of the requisites for this

apply, that the absence of legal impediments
must be during the time of solemnization of the
marriage.
By clear implication, the SC abandoned the
Ninal doctrine.

Which controls? The issue has been mooted in the

ruling of Office of the Court Administrator vs. Judge
Necessario.
Office of the Court Administrator vs. Judge
Necessario et.al.
Facts:
- An administrative complaint against MTC judges
in Cebu City. Accused of committing all the sins
in the book.
- One of the illegal marriages solemnized were at
least 200 marriages solemnized under Article
34 where the parties simply executed an
affidavit of martial cohabitation.
- It was noted by the OCA and the SC noted that
these marriages involved parties with ages 20
and below when they executed the affidavit. By
logical conclusion, this would mean they were
only 15 and below when they started cohabiting
with each other.
Ruling:
- It is now clear that the SC reverts back to the
Ninal doctrine.
- The at least 5 year cohabitation must be
characterized with exclusivity and free from
legal impediments.

Ninal vs. Badayog

Facts:
- The husband shot his wife to death.
- 8 months after, the husband married Badayog
without applying for a marriage license. But
made an affidavit stating that they have been
cohabiting for 5 years.
- The children of the first marriage assailed the
marriage because their hereditary rights have
been impaired.
Ruling:
- For the ratification of marital cohabitation to
apply, the 5 year cohabitation period has to be
characterized by exclusivity and must be free
from any legal impediment.
- It was established by evidence that the
husband married Badayog only after 10
months. This admitted that even during the
lifetime of the 1st wife, they have been
cohabiting with each other, therefore, not
exclusive and free from legal impediment.

The one in Manzano is just an obiter dictum and

does not create a precedent.
The falsity of an affidavit of marital
cohabitation, where the parties have in truth
fallen short of the minimum 5 year
requirement,
effectively
renders
the
marriage void ab initio for lack of marriage
license.

This case is seemed to be superseded by the case

of Manzano vs. Sanchez.
Manzano vs. Sanchez
Facts:
- An administrative complaint against a judge
who solemnized a marriage one the basis of
Article 34 while still knowing that the husband
was still married to someone else.
Ruling:
- The SC had the occasion to enumerate the
requisites to be able to enjoy Article 34.

Dayot vs. Dayot

Facts:
Ruling:
- If the affidavit was falsified, it would mean that
the marriage solemnized was not valid due to
the absence of a marriage license.

General Rule: a marriage solemnized by a judge

outside of his court room or by a priest outside of
the church is valid however, the solemnizer can be
held liable for it since this will become an
irregularity in the marriage.
Exception:
a. When one of the party is at the point of
death, it knows no place.
b. The marriage was contracted in a remote
place.
c. When both of the parties request the
solemnizing officer in writing to solemnize it
elsewhere in sworn statement.

The affidavit of cohabitation would take the

place of the marriage license. Without it, it is
equivalent to not having a marriage license.

A marriage which preceded the issuance of the

marriage is license is void and that the subsequent
issuance of such license cannot render the
marriage valid or add an iota of validity to it.

Valid Marriage Ceremony

The family code does not prescribe any
particular form of a marriage ceremony.
It only imposes that:
a. the parties will appear personally before the
solemnizing officer
b. personal declaration that they take each
other as husband and wife
c. in the presence of at least two witnesses
who are of legal age.

What if they fail to sign the marriage certificate?

- The personal declaration shall be contained in
the marriage certificate
- The certificate is not a formal requisite.
- The personal declaration is made orally or in
writing.
- The law does not make the marriage certificate
a requisite. It is only for evidentiary purposes.
- Its okay that they were not able to sign, so long
as there was a personal declaration made in
front of the solemnizing officer that they take
each other as husband and wife.

Absence in any of the essential and formal

requisite will render the marriage void. (Article
35)
Defect in any of the essential requisite will
make the marriage voidable or annullable
particularly to the giving of consent.
Irregularities in the formal requisite do not
affect the validity of the marriage but the
person responsible for such irregularity can be
held civilly, criminally or administratively liable.

Instances of Irregularities:
a. Marriage solemnized in a place other than in
a church or chamber of the judge.
b. Absence of two witnesses who are of legal
age.
c. Issuance of a license in place where neither
of the parties reside.
d. Issuance of a license w/out the required
supporting papers or documents.
e. Absence of a marriage contract.
f. Issuance of license despite failure of the
party to present parental consent or
parental advise when required.
g. Issuance of license despite absence of
posting notice and publication.
h. Failure to undergo marriage counseling.
i. Failure to pay the required fee for marriage
license.

What makes the marriage void for not having a

marriage ceremony is when there is no personal
declaration.
Morigo vs. People
Ruling:
- The SC ruled that when the parties were only
made to sign a marriage contract not in the
presence of a solemnizing officer that is no
marriage at all.

Article 9, 10: Marriage License

Marriage License
This serves as the authority given by the
State to the parties to enter into a contract
of marriage.
It is the concern of the state to make
marriages secure and stable institution.

Article 8: Venue of Marriage

The venue of marriage stated in this article is
directory in nature.

Article 11-16: Application for Marriage

License
REQUIRED DOCUMENTS FOR APPLICATION OF
MARRIAGE LICENSE
a. The original copy of birth certificate, in
the
absence
thereof,
the
original
baptismal certificate of the parties. This
document is exempt from documentary stamp
tax and signature of the official person is
enough to prove its authenticity.
Except in instances where:
The parents of the party concerned will
personally appear before the local civil registrar
and attest to the fact that the said party is
already of legal age.
When the local civil registrar shall be convinced
by merely looking at the personal appearance
of the party that they are of legal age.
When the party has been previously married.
b. If either or the parties were previously
married, the death certificate of the deceased
spouse or the judicial decree of absolute
divorce, annulment of marriage or declaration
of nullity of marriage.
c. In case either party is between the ages of
18-21, they must present a parents
consent, absence of which will render the
marriage voidable.

This is in keeping of family tradition

e. Certificate of marriage counseling in cases
where parental consent or parental advice
is required.

Failure to attach the counseling

certificate will cause the suspension of the
issuance of marriage license for 3 months.
This is only an irregularity to the formal
requisite.

If one or both of the parties are

below 25 years old, both of them must
attend.
f. If a party to the marriage is a foreigner, he
must present a certificate of legal capacity to
marry issued by his diplomatic or consular
representative in the Philippines.
g. Place of issue for the Marriage License, the
parties should get a marriage license form the
LCR in the municipality or city where either of
the party resides.
Information needed to be specified to the
LCR:
a. Full name of the contracting parties
b. Place of birth
c. Age and date of birth
d. Civil status
e. If previously married, how, when and where
the previous marriage was dissolved or
annulled.
f. Present citizenship and citizenship
g. Degree of relationship of the contracting
parties.
h. Full name, residence and citizenship of the
father.
i. Full name, residence and citizenship of the
mother.
j. Full name, residence and citizenship of the
guardian or person having charge, in case
one of the parties has neither father nor
mother, and is under 21 years old.

This must be in an affidavit of sworn

statement that the parents gave their
consent.

Preference is given to the father

otherwise the mother, surviving parent or
legal guardian of persons having charge of
them shall give the consent.
d. If the party is between the ages of 21-25,
parental advice is required.

Absence of which will not affect the

validity of the marriage but will delay the
issuance of the marriage for 3 months
following complete publication of the
application.

Article 17-19: DUTIES OF THE LOCAL CIVIL

REGISTRAR

a. Upon receipt of the application for a marriage

license, the LCR must immediately post a notice
to inform the public of the impending marriage.
b. The notice shall be posted in the bulletin board
outside of the LCR for 10 consecutive days
showing the name and residence of the couple.
This will request any person having
knowledge of any impediment to the
marriage to inform the local civil registrar
about it.
c. If the LCR will be informed of any impediment of
a party applying, he shall note down the
particulars thereof, but should not turn down
the issuance of the marriage license.
Even if the LCR is made aware of the
impediments of the marriage, h is still duty
bound to issue the license except if he is
restrained by the court at his own instance
or of any interested party.
Only the court can intervene in issuing the
marriage license through a court order
directing the LCR from non-issuance.
If there is really a legal impediment in the
marriage, the LCR issuing officer can
petition the court to restraint him from the
issuing the marriage license or have the
other party petition for it.
d. The LCR will collect payment of fees for the
issuance of the marriage license in the amount
of 300. However, it is free of charged for
indigent people.
e. It shall be the duty to prepare the documents
such as the marriage certificate and affidavit for
the solemnization of marriage in another place
without charge to all interested parties.
f. The LCR is the also the one to administer oaths
to all parties interested and to prepare the
documents required.
g. The LCR concerned, shall be the one to enter to
all applications for marriage licenses filed with
him in a registry book strictly in order which
shall be recorded in the name of the applicants,
the date of the marriage license was issued and
such other data as may be necessary.

Marriages solemnized using an expired marriage

licensed is considered null & void.
Article 22-25: Marriage Certificate
Marriage Certificate
The best evidence to establish or prove
marriage.
It is a certification issued by the solemnizing
officer that he performed or solemnized the
marriage between the parties. Absence of
which will not invalidate the marriage since it is
not an essential or a formal requisite.
What should be declared in the Marriage
Contract?
1. The full name, sex and age of contracting
parties.
2. Their citizenship, religion and habitual
residence.
3. The date and precise time of the celebration
of the marriage so as to determine at what
point will govern the property relation of the
parties.
4. Must indicate that the proper marriage
license has been issued according to law
Except in cases of:
a. Articulo Mortis
b. Marriage in a far and remote place
c. Marriages among Muslims or members
of ethnic cultural communities
d. Ratification of marital cohabitation
5. That both or either parties have secured the
parental consent in appropriate cases.
6. Either or both parties have complied with
the legal requirement regarding parental
advice in appropriate cases.
7. That the parties have entered into a
marriage settlement, it any, attaching the
copy thereof.
Duty of the Solemnizing Officer
a. It his duty to furnish either of the
contracting parties the original marriage
certificate and to send the duplicate and
triplicate copies of it not later than 15 days
to the Local Civil Registrar of the place
where the marriage was solemnized, the
LCR in turn will issue a receipt to the
solemnizing officer.
- 1 copy to the couple
- 2 copies to the LCR

Article 20: Life of the Marriage License

The marriage license once issued is valid anywhere
in the Philippine for a period of 120 days, if it is not
used within that period is it automatically expired.

1st paragraph: Lex Loci Celebraciones

CONFLICT OF LAWS RULE
This is based on the concept of international
comity.
This is rule in marriage wherein it means
that if the marriage is celebrated abroad
and is considered valid there, it shall also be
considered valid in the Philippines. However,
if the marriage solemnized abroad is in
violation of our countrys laws and policies,
our court is not bound to give effect to its
validity.
The reason for this is that a State is
considered the conservator of its own moral
and good order of society, thus, it has the
right to declare what marriages it will or will
not recognize within its borders.

1 copy to keep for the solemnizing

officer
b. It shall also be his duty to keep the 4 th copy
of the marriage contract, the original
marriage license and in some cases affidavit
of the contracting parties regarding the
solemnization of the marriage in a place
other than his jurisdiction.
-

Is a photocopy of the Marriage Contract valid?

No, unless it emanated from the office of the
Local Civil Registrar.
The rule is that if two persons dwelling together
presenting themselves as married shall be
presumed to be indeed married, in the absence of
any counter-presumption or evidence showing the
contrary.
- Semper
Praesumitur
Pro
Patrimonio:
Always presume marriage
The
law
favors
morality
over
and
immorality, marriage and not concubinage,
legitimacy and not bastardy.

Exception to the Lex Loci Celebraciones Rule:

Except those pointed out under Article 35
(1), (4), (5), (6), 36, 37 and 38.
1. If the party who is a Filipino is below 18 years
old.
2. If the marriage is bigamous or polygamous.
3. If contracted through mistake of identity of the
other party.
4. If the party whose previous marriage has been
annulled or declared void, contracts a second
marriage but failed to record the judicial decree
with the LCR, to partition the conjugal
properties and deliver the presumptive Legitime
of their children.
5. Where one of the party is psychologically
incapacitated.
6. Marriages considered incestuous.
7. Marriages that are against public policy.

A marriage may be proved by evidence of any kind

such as parol evidence or testimony by one of
the parties or the witnesses to the marriage or by
the person who solemnized the same.
Competent evidence proving the fact of marriage
1. Public and open cohabitation as husband &
wife after the alleged marriage.
2. Birth & baptismal certificate of children born
by the alleged spouses.
3. Statement of such marriages in subsequent
documents.

The prevailing theory is that all of these exceptions

are only applicable to Filipinos. This is mainly
because of the nationality theory. The above
exceptions pertain to status, condition and legal
capacity which under Article 15 is governed by the
national law.

It is the burden of proof upon

the person who attacked the validity of
marriage to present a strong and satisfactory
evidence to rebut the presumption of its
validity. The evidence to prove the invalidity of
the marriage may even be presented for the
first time on appeal.

1st situation: Marriage between foreigners in the

Philippines
- Pursuant to lex loci, the validity of the
marriage should be governed by Philippine
laws because the marriage is solemnized
here.

Article 26: Lex Loci Celebraciones Rule in

Marriage

10

However, the legal capacity should be

determined by their national law. (Consistent
with Article 21)
- Do not be surprised that a 15-year-old
German may be able to contract marriage
here in the Philippines
2nd situation: Mixed marriage in the Philippines
- Rule: Lex Loci
- Legal capacity of the foreigner is determined
by the national law
rd
3 situation: Foreigners with marriage solemnized
abroad
- Under Article 26, if it is valid where it was
solemnized, it is valid in the Philippines.
- If marriage by proxy is allowed, that is valid
then.
- On Same-Sex marriage, there is always a
good argument that pursuant to Article 26, it
is valid. It may not be valid, however, in
Article 17 (par 3) of the Family Code.
4th situation: Mixed marriage of a Filipino and
foreigner abroad
- Rule: lex loci. BUT the Filipino is governed by
the exceptions in Article 26.
- A hybrid marriage: valid insofar as the
foreigner spouse and void insofar as the
Filipino spouse.
- But this is a legal impossibility because
marriage is one indivisible concept.
- How are we to treat this marriage? Prevailing
opinion: our policy is in favor of marriage. The
prevailing view is that our courts should
consider the marriage. Otherwise, children
will be considered illegitimate and will be
prejudiced.
5th situation: marriages by Filipinos abroad
- Rule: Lex loci
- But both of them are now governed by the
exceptions

The validity of the divorce decree must be

recognized to benefit both the spouses.
Requisites:
a. Must be a mixed marriage
b. Foreigner spouse is the one who secured the
divorce abroad
c. After the divorce, the foreigner spouse must
again be capacitated to remarry according
to his national law.
When in a case of marriage between a Filipino
citizen and a foreigner and it is the foreigner who
filed for a divorce and after it was granted he must
be capacitated again to remarry according to his
national law. This must be proven as a fact by the
Filipino spouse before he/she is entitled to remarry
again in our court.
In this case the divorced Filipino citizen is
not considered an Ipso Facto capacitated
to marry again. The Filipino citizen must
prove as a fact the divorce as enforced by
the foreign judgment by way of declaratory
relief since our courts dont take judicial
notice on the laws of other countries.
If the Filipino spouse has acquired the citizenship
of her husband then such divorce is considered as
valid here in our country because of our adherence
to the nationality principle in so far as the status of
the person is concerned.
The reckoning point is at the time when the
divorce decree was availed of.
If both of the parties are Filipino and one of them
was naturalized in a foreign country and later on
obtained a divorce decree, that divorce decree will
be valid.
Republic vs. Obrecido: The reckoning point is
NOT the citizenship at the time of the marriage but
at the time the divorce decree was obtained.
- In a case wherein the Filipino citizen is the
one who filed for a divorce in another
country to his foreigner husband/wife, the
foreigner spouse cannot anymore claim that
he still an interest to the properties of the
Filipino citizen here in the Philippines or
subsequently file an adultery case against
the Filipino since the foreigner spouse has
lost his legal standing against the Filipino

Common law marriages considered abroad cannot

be recognized here in the Philippines since our laws
require marriages solemnized abroad. The word
solemnize presupposes the performance of a
marriage ceremony which is absent in a common
law marriage.
2nd paragraph: Effects of divorce to the
Filipino spouse
Cases: Van Dorn vs. Romillo
- Pilapil vs. Judge Somera

11

for the foreigner is already considered

divorced by his national law.

In Bayot vs. Bayot, the divorce decree was obtained

by the wife, in Dominican Republic.
- At the time the divorce decree was
obtained, she was American. Under her
laws, divorce is recognized. The divorce
decree obtained by the wife in the
Dominican Republic is valid.
- This ruling meant that the foreign law that
must be proved is NOT the foreign law
where the divorce decree was obtained, but
the national law of the alien spouse.

This capacity to remarry does not come

automatically.
- This is a judicial act for him or her to be
capacitated to marry.
- An order will be issued to allow him to
marry. He will file a petition for declaratory
relief.
What should the Filipino spouse prove?
a. Prove the existence and authenticity of the
divorce decree obtained abroad (Rule 132, Sec.
24 and 25 of the Rules of Court)
o Presenting the official publication of the
divorce decree
o When there is no publication, present
the copy of the divorce decree
o If the document is kept outside of the
Philippines, their authenticity can be
established
by
presenting
the
authenticated copy of the foreign
document (Red Ribbon or consularized
document)
o Must be attested by the legal custodian
o Shall also contain a certification of the
Philippine consular official stationed in
the country where the foreign decree
was obtained.
b. Equally important for the petitioner to
demonstrate its conformity to the laws allowing
the divorce decree
- Prove that the divorce decree is valid
- Petitioner will have to prove the foreign
law
c. It is also important to prove that the divorce
decree capacitates the alien spouse to remarry
- Two kinds of divorce: Absolute (that
capacitates the party to marry and
Relative (does not, similar to legal
separation)

The alien spouse cannot avail of the remedy in

par.2, Article 26 if he/she wants to get married here
in the Philippines. Under what provision of law can
he/she invoke?
Gilbert Corpuz vs. Sto. Tomas
Facts:
- Marriage
between
two
Filipinos
but
subsequently the husband became a Canadian
citizen
- He returned to the Philippines. But was
surprised to see his wife having illicit
relationship
- He asked for a divorce in Canada and was
granted.
- He found another Filipina and wanted to be
married.
- He went to the LCR of Pasig to include the
divorce decree to be annotated in the marriage
certificate. But he was informed that he was not
allowed because for any foreign judgement, to
be valid in the Philippines, it has to be approved
by the court in the Philippines.
- He filed for a petition for declaratory relief.
- Issue: Can he have the same remedy?
Ruling:
- Since the 2nd paragraph is intended for the
benefit of the Filipino spouse, he cannot invoke
the same benefit.
- It does not mean that he has no remedy. It can
be recognized under Rule 39, Sec. 48 of the
Rules of Court: the enforcement of foreign
judgement.
- Two options available:
a) Alien spouse may file a petition for
recognition of the divorce decree
- Problem: if it is only for recognition, it is
not enough to effect the corresponding
change of the records of marriage
between the spouses. It is simply the

Obrecido makes reference to a foreign law that

needs to be proved, it is not specific to which
foreign law. Is it the foreign law to which the
divorce decree was obtained? Or is it the foreign
law of the alien spouse?
- Obrecido says that it should be the foreign
law of where the divorce decree was
obtained.

12

recognition and does involve the change

of interests in the marriage
- Even if the court recognizes the divorce
decree, the record of the spouses will
still be the same
b) To file a petition for correction or change of
entries in the Local Civil Registrar
particularly change of marriage entries
under Rule 108 of the Rules of Court
- As he files the petition for recognition,
the alien spouse still needs to file this
petition for correction
- It is the order for recognition that will be
used to effect the change of entries
The SC observed that this very burdensome to
the spouses. Consistent with the policy of
speedy trial, the alien spouse could file the
petition for correction of entries and ask for the
recognition of the divorce decree in the same
petition
It is still necessary to prove the authenticity and
existence of the divorce decree and the national
law of the alien spouse who obtained the
divorce decree

beginning
Cannot be ratified
Can be attacked
collaterally
Direct action can only
be filed by the spouses

The nullity of marriage

can be raised even after
the death of the parties
The action to nullify the
marriage has no
prescriptive period
General rule: void
marriages can only be
assailed by the parties
of the marriage.
Cannot be ratified
35, 36, 37, 38, 40, 53

While voidable
marriage can only be
questioned during the
partys lifetime.
The annulment of a
voidable marriage
prescribes
Voidable marriages
can be questioned by
other persons not a
party to the marriage.
Can be ratified
45

Article 35: Void Ab Initio due to absence of

essential or formal requisites
1. Those contracted by any party below eighteen
years of age even with the consent of parents
or guardians
2. Those solemnized by any person not legally
authorized to perform marriages unless such
marriages were contracted with either or both
parties believing in good faith that the
solemnizing officer had the legal authority to do
- One of the situations where good faith is
taken into considerations.
3. Those solemnized without a license, except
those covered by the preceding Chapter
4. Those bigamous or polygamous marriages not
falling
under
article
41
which
states
presumptive death
- Another instance where good faith is
recognized
5. Those contracted through mistake of one
contracting party as to the identity of the other
6. Those subsequent marriages that void under
Article 53

If the foreign judgement sought to be recognized is

not a divorce decree, it should be distinguished.
In Fujiki vs. Marinay, the proper remedy is to file a
petition for correction. Basically the same
procedure.
The difference lies in the matter that needs to be
proved:
- In foreign judgement: simply the existence and
authenticity of the foreign judgement. The
foreign law is not required to be determined.
o In Fujiki, what was the object was the
judgement that declared the marriage void
by reason of bigamy. This is not against
public policy.
- In a divorce decree: The existence and
authenticity of the divorce decree AND the
national law of the alien spouse

VOID AND VOIDABLE MARRIAGES

Two Kinds of Defective Marriages
VOID
Defective from the very

beginning
Can be ratified
Can only be attacked
directly
Direct action may be
filed by an interested
3rd party based on the
ground

Collateral Attack of a Void Marriage

The nullity of the marriage is not the
principal or main issue of the case but is

VOIDABLE
Not defective from the

13

necessary to the resolution of the main

case.

one who cannot perform the essential

marital obligations as he/she refuses to do
even if physically capacitated to do so.
It can also refer to lack of appreciation of
ones marital obligation and has nothing to
do with consent.

Good faith of the parties in entering the marriage is

immaterial and it does not validate an otherwise
void marriage.
Divorce vs. Void Marriages

The general guide as to the determination as to

whether there is psychological incapacity or not is
the fact the Psychological Incapacity refers to
the failure to comply with the essential marital
obligation.
Quarrels and financial difficulties not constitute
psychological incapacity. Sexual infidelity on
the other hand,
is not considered a
psychological incapacity if it is not proven that
it already existed before the marriage

Divorce
-

There is a valid marriage but the ground

occurred subsequent to the celebration
of the marriage.
Void in Ab Initio
- From the very beginning there was no
marriage.
- The ground for declaration of its nullity
already existing at the time the marriage
was celebrated but only manifested after
its solemnization.

Examples of Personality Disorder

a. Dependent Personality
- Husband in Te vs. Te
b. Anti-Social Disorders
- Wife in Te vs. Te
c. Narcissistic Personality
- Kalaw vs. Fernandez
d. Senseless and protracted refusal to have
sex with the other spouse
- Chi Ming Tsoi vs. ___
e. Pathological Liar
- Antonio vs. Reyes
f. Immaturity
- Halili vs. Halili
g. Indifferent to the Needs of the wife
- Reyes vs. Reyes.

Article 36: Void because of Psychological

Incapacity
This was introduced by E.O. No. 227 on July 17,
1987 as an amendment to the Family Code.
No clear definition of the psychological
incapacity was given since the intention of the
legislation was to leave the determination of it
to the courts on a case-to-case basis, as to
whether a particular situation falls under the
psychological incapacity.
The Reason:
The presence of psychological incapacity
depends upon the facts of the case and it
can be clearly deduced that the absence of
definition was deliberately done because
the situations contemplated by the law vary
from one case to another.

ESSENTIAL CHARACTERISTICS OF
PSYCHOLOGICAL INCAPACITY:
1. Juridical antecedent
- It must already be existing at the of the
celebration of the marriage
2. Gravity
- It must be a very serious defect that it
incapacitates the person concerned from
performing marital obligations
3. Incurability
- It is not curable
- Also refers to party not being able to
afford the cure

Psychological Incapacity
The basic determination of the existence of
psychological incapacity is the failure to
comply with the marital obligation.
Utter insensitivity and inability to give
meaning and significance of marriage
This is not insanity or mental illness
It refers to the inability of a party to the
marriage to comply with the essential
marital obligations because of psychological
reason. It is not a physical defect because a
person who is psychological incapacitated is

It is clear from the foregoing elements that the

intention of the law has been to confine the

14

 When the diagnosis was only based on

interviews with petitioning spouse and that
the psychologist did not actually hear, see
and evaluate the respondent who was
alleged to be psychologically incapacitated.
The
testimony
of
the
psychologist
constituted as hearsay. Furthermore, the
psychologist failed to explain how such
personality disorder made the respondent
psychologically incapacitated and to prove
the same is so grave and permanent.

meaning of psychological incapacity to the most

serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability
to give meaning and significance to the marriage.
- The decisions of the matrimonial tribunal
of the Catholic Church involving
psychological incapacity as a group to
annul the marriage is greatly helpful and
persuasive to our Civil Courts. Although
our courts are not bound by the decision
of the matrimonial tribunal, the said
decision can be used by our Civil Court
as a guide in the determination of the
existence psychological incapacity.

Testimony of the Psychologist CONSTITUTE as

sufficient
evidence
for
Psychological
Incapacity:
The Supreme Court ruled that lack of
personal examination and interview of the
respondent or any person diagnosed with
personality disorder, does not per se
invalidate the testimony of the doctors.
Neither do their findings automatically
constitute hearsay that would result in their
exclusion in evidence. If the psychiatrist or
psychologists assessment were not based
solely on the narration or personal interview
of the petitioner but also on other informants
such as respondents own son, siblings and
in-laws and sister-in-law who all testified on
their own observations of respondents
behavior and interactions with them.
(Reyes vs. Reyes G.R. No. 185286)
- The testimony of the psychiatrist is
found to be general, not in depth, does
not establish link between actions of
party and his supposed psychological
incapacity

Guilty Party can petition for nullity of

marriage
- The action to declare the marriage void on
the ground of psychological incapacity can be
filed even by the incapacitated party. The law
does not prohibit the guilty party from
bringing the action in court as a void
marriage is not ratifiable and the Pari Delicto
Rule will not apply here.

The Party who is declared psychologically

incapacitated may still contract another
marriage
- The psychological incapacity is relative to
the spouse concerned. One may be
psychologically incapacitated with one while
not with another. Thus, he/she can be remarry.
Expert Testimonies
- During the trial for declaration of nullity of marriage
on the ground of psychological incapacity,
expert testimonies of a psychologist or
psychiatrist is not a requirement for a
declaration of psychological incapacity and
that it is not a condition sine qua non for such
declaration. The court may base its decision on
the totality of the evidence other than the
findings of such expert witness. However, expert
testimonies may help in the resolution of the
case.

Moral Damages
- cannot be recovered from the guilty party in an
action for declaration of nullity of marriage on
the ground of psychological incapacity.
- This is because a psychological incapacitated
person is not aware of his incapacity and
therefore cannot be held answerable for moral
damage.
MOLINA DOCTRINE AS AMENDED BY A.M. NO.
20-11-10-SC

Testimony of the Psychologist did NOT

constitute as sufficient evidence for
Psychological Incapacity:

a. The burden of proof to show the nullity of

marriage belongs to the plaintiff.

15

b. The parties may medically or clinically identify

the root cause of the psychological incapacity
alleged in the complaint by an expert; however
this is not anymore required but regarded as an
option which may be helpful in deciding the
case.
c. The incapacity must be proven to exist at the
time of the celebration of the marriage,
although it only becomes apparent after the
celebration of the marriage.
d. The incapacity must be shown to be medically
or clinically permanent or incurable, however
this is not regarded as an absolute fact against
everyone in the same gender.
e. The illness must also be grave enough to
prevent the party from assuming the essential
marital obligations.
f. The essential marital obligations must be those
mentioned in article 68-71 of the Family Code,
as well as Article 220, 221 and 225.
g. The interpretations given by the National
Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling
or decisive, should be given great respect by
our courts.

REQUISITES FOR PSYCHOLOGICAL INCAPACITY

AS A GROUND FOR ANNULLMENT
(a) A true inability to commit oneself to the
essentials of marriage.
(b) This inability to commit oneself must refer to
the essential obligations of marriage:
Conjugal act
Community of life and love
Rendering of mutual help
The procreation and education of offspring
(c) The inability must be tantamount to a
psychological abnormality.
It is not enough to prove that the spouse failed to
meet his responsibility and duty as a married
person; it is essential that he must be shown to be
incapable of doing so due to some psychological
illness.

CANON 1095: CASES F PSYCHOLOGICAL

DISORDERS
a. Hypersexuality-nymphomania
b. Hypersexuality-styriasis
c. Homosexuality
d. Lesbianism
e. Schizophrenia
f. Affective immaturity
g. Anti-social personality disorder
h. Dependent personality disorder
i. Vaginismus or psychic impotence
j. Sexual disorder
k. Psychoneurosis
l. Lack of interpersonal integration
m. Immature personality
n. Obsessive-compulsive Personality
o. Frigidity
p. Alcoholism and gambling
q. Liar, cheat and swindler
r. Sexual neurosis
s. Hysterical personality
t. Psychic immaturity

Dedel vs. Court of Appeals

In this case, respondents sexual infidelity can
hardly qualify as being mentally or psychically
ill to such an extent that she could not have
known the obligations she was assuming, or
knowing them, could not have given a valid
assumption
thereof.
It
appears
that
respondents promiscuity did not exist prior to
or at the inception of the marriage. What is, in
fact, disclosed by the records is a blissful
marital union at its celebration, later affirmed in
church rites, and which produced four children.
Respondents sexual infidelity or perversion and
abandonment do not by themselves constitute
psychological
incapacity
within
the
contemplation of the Family Code. Neither could
her emotional immaturity and irresponsibility be
equated with psychological incapacity. It must
be shown that these acts are manifestations of
a
disordered
personality
which
make
respondent completely unable to discharge the
essential obligations of the marital state, not
merely due to her youth, immaturity16 or
sexual promiscuity.

Article 37: Void because incestuous

Marriages between the following are incestuous
and void from the beginning whether the
relationship between the parties is legitimate or
illegitimate:

16

1. Between ascendants and descendants of

any degree.
- Ascendants and descendants no matter
how far and how long
2. Collateral blood relatives: brothers and
sisters
- Between brothers and sisters, whether
of full or half-blood.
The reason why incestuous marriages are
prohibited by law:
1. It would tend to create confusion of rights and
duties incident to family relations.
2. It is abhorrent to the nature, not only of civilized
men, but of barbarous and semi-civilized
people.
3. Such intermarriages often result in deficient and
degenerate offspring.

These marriages are considered against public

policy because they do not serve the fundamental
objective of the state which is to nurture a stable
family unit that can effectively be the foundation of
society.
Valid Marriages:
1. Between adopted and the parents of his adopter.
2. Between adopted and illegitimate children his
adopter.
3. Between adopted and the relatives of his
adopter.
4. Between the adopted and the former spouse of
his adopter or between the adopter and the
former spouse of his adopted.
5. Between step-brother and step-sister.

Article 39: Prescriptive Period

Declaration for Absolute Nullity of a Marriage
- Has no prescription period as amended by
E.O No. 227 dated July 17, 1987 and further
amended by R.A. No. 8533 dated on Feb. 23,
1998.
- There is no prescriptive period for an action to
declare the marriage void since a null and void
marriage produces no legal effect, it being nonexistent.

Article 38: Void because against public policy

The enumeration of void marriages in this
article are exclusive and good faith is
immaterial.
(a) Between collateral blood relatives, whether
legitimate or illegitimate, up to 4th degree
(b) Between step-parents and step-children
(c) Between parents-in-law and children-in-law
(d) Between the adopting parent & the adopted
child
- Prohibition is only the adoptive parent and
the adopted child
- Everyone else is a 3rd party relationship. Ex:
Adopting parent and the child of the
adoptive child
- The effect of adoption is only personal to
the parent and adopted child
(e) Between the surviving spouse of the adopted
child and the adopter
- If the ground of the dissolution of the
marriage is not death, the former spouse
can validly marry the adopted child
(f) Between the adopted children of the same
adopter
(g) Between parties where on, with the intention to
marry the other, killed the other persons
spouse or his or her own spouse.
No prior criminal conviction by the court is
required by the law. Mere preponderance of
evidence is required to prove the killing.

Article 40: Void Subsequent Marriages

When a marriage is void, a party to that marriage
can contract a subsequent marriage only after
he/she has the previous marriage judicially
declared null and void.
A subsequent marriage contracted without having
the first marriage declared judicially null and void is
considered void an initio.
- The reason why it is important that the nullity of
the marriage should be ascertained and
declared by the court of competent jurisdiction
is for the sake of good order of society and for
the peace of mind of all persons concerned.
- THIS DOES NOT CONTEMPLATE OF A SITUATION
WHERE THE MARRIGE IS VOID. However, the
Supreme Court has always ruled that the
subsequent marriage is bigamous even if the 1 st
marriage is void.
When the first marriage is undoubtedly void and a
party to that marriage contracted a 2nd marriage
w/out obtaining first a judicial declaration of nullity

17

of marriage, would the said party be guilty of

bigamy? YES

Non-compliance of Article 40:

1st effect: The party incurs criminal liability
- The SC consistently ruled that failure to
comply with Article 40 renders the
subsequent marriage as bigamous
One should not put the law in his hands and decide
for himself the nullity of his marriage. He should let
the court declare the nullity of such before he can
contract another marriage.
- The nullity of a previous marriage can only or
solely be established by a final judgment of the
court declaring such marriage void.
- Void and voidable marriages: WILL ONLY BE
DECLARED SUCH WHEN THE COURT SAYS SO
- The party cannot enter into another valid
marriage
- The reason why Article 40 was placed to begin
with was to remove doubts as to the status of
the second marriage

The Supreme Court has said in 1995 (Atienza

vs. Brillantes) that Article 40 will have
retroactive application.

Case: Jarillo vs. People

For purposes of determining bigamy, the
requirement of liquidation and partition and etc. is
not required.
2nd effect: Donations
- Donations will be valid
- But if the donee acted in bad faith, the donation
will be revoked by operation of law and forfeited
pursuant to Art. 43 (2)
3rd effect: Insurance
- Any insurance policy shall remain valid
- But if the beneficiary is the one acting in bad
faith, the designation may be revoked eve if the
designation is irrevocable
4th effect: INHERITANCE
- The guilty spouse is disqualified from inheriting
whether intestate or testamentary succession.

What happens if the 2nd marriage is the one void?

Not contemplated in Article 40.
Recent jurisprudence show that it doesnt matter if
the 2nd marriage is void because Art. 349 already
punishes the act of contracting another marriage
during a subsisting marriage.

5th effect: Children

- The children are considered LEGITIMATE

Article 41-44: Declaration of Presumptive

Death

Case: Tenebro
The fact that the second marriage is void:
- It is not an argument to the absence of
bigamy
- Even if it retroacts to the time of
solemnization, there are effects:
a. The
children
are
considered
legitimate
b. Criminal liability for bigamy

Spouse is Presumed Dead

This is the only instance where there is
a valid bigamous marriage
If a spouse is absent for 4 consecutive years and
the present spouse has a reasonable and wellfounded belief that the absent spouse is already
dead, he/she may contract a second marriage
provided that he/she first obtain a judicial
declaration of presumptive death of the absent
spouse.

Procedure: A.M. 02-11-10-SC

Before the criminal case for bigamy was initiated,
the first was declared void already. What happens?
- The critical point to consider is the time of
solemnization of the 1st marriage and not the
bigamy complaint.
Case: People vs. Odtohan

Does this apply to those marriages that solemnized

before August 3, 1980?

Well-founded Belief
Supreme Court states that the meaning of
the term well-founded belief is the exercise
of that degree of due care diligence required
in searching for a missing spouse.
REQUIREMENTS FOR DECLARATION OF
PRESUMPTIVE DEATH

18

1. The absentee spouse must have been absent

for 4 or 2 years under the circumstance
prescribed by law.
2. The present spouse must not know the
whereabouts of the absent spouse.
3. There must be a well-founded belief that the
absent spouse is already dead.
4. There must be an institution of a summary
action for the declaration of presumptive death
of the absent spouse.
5. There must be final judgment declaring the
absent spouse presumptively dead.

The person has been absent for 7 years,

it being unknown whether or not the
absentee still lives.
- The absentee shall be presumed dead
for all purposes except for succession, in
which cases, the absentee shall be
presumed dead after the lapse of 10
years.
Article 391:
- An absentee who is 75 years old and
above is presumed dead if he has been
absent for 5 years, still unknown
whether or not the absentee is still alive.
-

The 4-year period can be shorted to 2 years if the

presumptive death is under the circumstances of
great danger (Article 391 of the Civil Code)
If the absent spouse was on a vessel and
the same was lost during sea voyage and he
has not been heard of for two years since
the loss.
The absent spouse was on an airplane which
was missing and such spouse was not heard
of for two years since the loss of the
airplane.
The absent spouse who was in the armed
forces has taken part in the war and has
been missing for two years.
When the absent spouse has been in danger
of death under other circumstances.

The decision of the court declaring the spouse

presumptively
dead
under
article
41
is
unappealable and is immediately executor since it
falls under the Summary Judicial Proceedings in the
Family Law.
ABSENT SPOUSE TURNS OUT TO BE ALIVE
If the absent spouse turns out to be alive, then the
subsequent marriage contracted by the present
spouse will be automatically terminated but only
upon the execution of the affidavit of reappearance
by the reappearing spouse or any of the interested
party.
Affidavit of Reappearance:
a. This shall be recorded in the office of the Local
Civil Registrar of the place where the present and
the subsequent spouse resides.
b. The recording of this document is the operative
act that terminates the subsequent marriage
without prejudice to the outcome of any judicial
proceeding questioning the reappearance.

The judicial declaration of presumptive death

under Article 41 of the Family Code is mandatorily
required by law only for the purpose of
capacitating the present spouse to remarry.
The extraordinary absence is only for the purpose
of remarriage of the remaining spouse however, for
the division and liquidation of the estate and
money of the previous marriage, this will only
happen after 4 years of consecutive absence of the
absentee spouse.
General Rule: Judicial declaration of presumptive
death is required as such is a presumption that
arises from law.
Exception: No judicial declaration of presumption of death is needed in cases of Article 390 and 391
of the Civil Code before the effectivity of the Family
Code, since these are presumption that arises from law
Article 390:

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Who can execute the Affidavit?

(a) Reappearing spouse
(b) Or any interested party such as the parents
of spouses, their children, the remarried
spouse or even the subsequent spouse of the
remarried spouse.
Bigamous but Valid Marriage:
The fact that the absent spouse is still alive renders
the subsequent marriage as a bigamous but valid
marriage.
This means that the second marriage is bigamous
yet it is still valid by virtue of the judicial
declaration of presumptive death.

EFFECTS OF TERMINATION OF THE

SUBSEQUENT MARRIAGE
Article 43:
1. The children of the subsequent marriage
conceived are considered legitimate. However,
children born after the second marriage is
dissolved are considered illegitimate.
2. The property relations of the parties; be it
absolute or conjugal partnership, shall be
dissolved and liquidated.
The party who contracted the marriage in
bad faith shall forfeit his/her share in
the net profit community property in
favor of their common children, or if there
none, the children of the guilty spouse by a
previous marriage or in default thereof, by
the innocent spouse.
3. A donation by reason of marriage made by the
innocent spouse in favor of the guilty spouse is
revoked by operation of law.
4. The designation of the guilty spouse as the
beneficiary of the insurance policy of the
innocent spouse may be revoked by the latter
even if there is a designation that it is
irrevocable.
5. The party who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse.

Can be Ratified by Cohabitation

(Cohabitation means sexual intercourse)
1. Absence of parental consent for a party who is
over 18 but below 21 years of age. Unless, after
reaching the age of 21, such party freely
cohabitated with the other and both lived
together as husband and wife.
2. Either party was of unsound mind, unless such
party after coming to reason freely cohabited
with other as husband and wife.
3. The consent of either party was obtained by
fraud, unless such party afterwards, with full
knowledge of the facts constituting the fraud,
freely cohabited with other as husband and
wife.
- Vitiated consent must be proven by
preponderance of evidence which
may include the actuation of the
parties previous to the marriage.
What constitutes fraud? Article 46:
A. Non-disclosure of a previous conviction by
final judgment of the other party of a crime
involving moral turpitude.
- It is not necessary for the spouse to
verify first before the marriage whether
or not the other spouse has a previous
conviction since the burden of proof is
on the convicted party to divulge is
criminal records
B. Concealment by the wife of the fact that the
time of the marriage, she was pregnant by a
man other than his husband.
- This could only be appreciated as a
fraud when the concealment of the
pregnancy is still very possible. Thus,
the husband could no longer claim
concealment of pregnancy when it is
very obvious that the woman is already
pregnant.
- The reason why this is a ground for
annulment is because, any child born
after the celebration of marriage is
considered a legitimate child of the
husband, and it would be unfair for the
man to take care of the child which is
not his.
C. Concealment of sexually transmissible
disease, regardless of nature, existing at the
time of the marriage.

Article 44: If both parties are guilty of bad

faith, the marriage shall be void ab initio and all
donations are revoked by law. Since the marriage is
void, the separation of property will be governed by
co-ownership under Article 147 or 148 of the Family
Code.
- The subsequent marriage entered into after
the judicial declaration of presumptive
death can only be terminated when the first
spouse files an affidavit of reappearance.

Article 45-46: Grounds for Annulment of

Marriage
The grounds for the annulment of a voidable
marriage enumerated in article 45 of the Family
Code must already be existing at the time of
celebration of the marriage. If the grounds
occurred only after the celebration of the
marriage it cannot be used as a ground to
annul the marriage.

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D. Concealment of drug addiction, habitual

alcoholism or homosexuality or lesbianism
existing at the time of marriage.
- Only when it already existed at the time
of the marriage and was concealed by
said party from the other

Article 47: Prescriptive Period for Annulment

of Marriage
If the ground is absence of parental consent
- The prescriptive period is 5 years from the
time the party who did not secure the
parental consent reaches 21 years old.
- The parents of the party who did not acquire
a parental consent can also annul the
marriage at any time before their
son/daughter reaches 21 years old. In this
order: father, mother, legal guardian
If the ground is insanity
- No prescriptive period but will be ratified by
cohabitation if after the insane becomes
sane still continued to cohabit with the other
spouse.
- The sane spouse or the relatives or guardian
of the insane spouse may annul the
marriage at any time before the death of
either spouse.
- The insane spouse may annul the marriage
only during his lucid interval.
If the ground is fraud
- The action prescribed after 5 years from the
discovery of the fraud.
If the ground is vitiated consent through
force, intimidation or undue influence
- The prescriptive period is 5 years from the time
the force, intimation or undue influence ceased
to exist.
- The party may only be instituted by the party
whose consent was vitiated.
If the ground is physical incapability to
consummate the marriage or sexually
transmissible disease
- This is physical incapability to do the sexual
act.
- The action for annulment can be filed by the
injured party within 5 years from the time of
the celebration of the marriage.

4. The consent of either party was obtained

through force, intimidation or undue influence,
unless when such has disappeared or ceased to
exist, the party thereafter freely cohabited with
the other as husband and wife.
- This is appreciated only when the one of
the contracting parties is compelled by a
reasonable and well-founded fear of an
imminent and grave evil upon his person
and property or upon the person or
property of his/her spouse, descendants
or ascendants, to give his consent.
- To determine the degree of the
intimidation, the age, sex and condition
of the person shall be borne in mind.

CANNOT be ratified by Cohabitation

5. Either party was physically incapable of
consummating the marriage with the other, or
such incapacity continues and appears to be
incurable.
- This refers to impotency and not
sterility.
- Potency is always presumed, thus,
whoever claims that his/her spouse
is impotent has the burden of
proving
it.
However,
the
presumption of potency is rebutted
if the wife remains a virgin after
three years from the time of their
cohabitation, which is called the
Doctrine of Triennial Cohabitation.
6. Either party was inflicted with a sexually
transmissible disease found to be serious and
appears to be incurable.
- This is a ground to annul of
marriage if it is both serious and
incurable. It can be a ground if it
already existed at the time of the
marriage and it was concealed by
the guilty spouse.
The grounds for annulment is exclusive, thus, only
those specified in Articles 45-46 of the Family Code
shall be considered.

Article 48-49: Procedures in Annulment &

Nullity of Marriage
STEP 1:
Filing in the Family Court the complaint for
Annulment or Declaration of Marriage
The defendant shall be served with summons
and a copy of the complaint whereby he is
given 15 days to file his answer from receipt
thereof.

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If no answer is filed by the defendant within 15

days:
The court cannot declare the defendant in
default
The court will order the prosecuting attorney or
fiscal assigned to it to enter his appearance for
the State
- To take steps to prevent collusion between
the parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
After conducting an investigation, the fiscal is
mandated by law to make a report to the court
on the result of his investigation. If there is no
collusion the fiscal will submit a report of no
collusion to the court.

especially when it was not shown that evidence

was suppressed or fabricated by any of the
parties. In this case, the strict application of
Article 48 and 60 of the Family Code is
unwarranted.

Compromise Agreement of Property

Separation:
The partial voluntary separation of property
agreed upon by the parties through a
compromise agreement approved by the court
prior to the declaration of nullity of marriage is
valid.

STEP 2:
During the Pendency of the Action of Annulment or
Declaration of Nullity of Marriage
The support of the spouses and the custody &
support of the common children:
General Rule: The support of the spouses and the
custody and support of the common children will
be primarily governed by whatever agreement the
parties have made.

The court cannot render judgment on the basis of

stipulation of facts or confession of judgment. An
Annulment case cannot be terminated compromise
agreement and no valid compromise is legally
possible on the issue of the validity of marriage
- A full blown hearing is required in case
where the plaintiff is required to prove his
case in court. The policy of the State is to
be cautious and strict in granting annulment
of marriage, thus, the law strictly prohibits
the annulment of marriage w/out trial.

In the absence of such agreement:

The support of the spouse and common
children
- Shall be taken from the conjugal or absolute
community until the marriage is dissolved.
The custody of the common children
- This shall be resolved in accordance with
Article 213 of the Family Code which states
that in case of separation of the
parents, parental authority shall be
exercised by the parent designated by
the court. The court shall take into
account all relevant considerations,
especially the choice of the child over
7 years old, unless the parent chosen
is unfit.
No child under 7 years old shall be
separated from the mother unless the
court finds compelling reasons to order
otherwise.
- Should the court award the custody of the
child to one parent during the pendency of
the case, the other spouse should have
visitation rights unless the court, for some

The State shall be represented by the OSG or

by the Fiscal in all cases of nullity and
annulment of marriage:
Although Article 48 does not specifically state
the OSG, such office is nevertheless can
intervene in the proceeding considering that
issue of validity of the marriage is vested with
public interest.
General Rule: The Fiscal must actively intervene
in the case and submit a report to the court that
there was no collusion between the parties.
Exception: If the annulment or declaration of
nullity of marriage was strongly opposed &
heatedly contested by the defendant by hiring a
lawyer who filed several pleadings and actively
participated in the trial of the case.
The non-intervention of the fiscal to assure lack
of collusion between the parties is not fatal to
the validity of the proceedings in court

22

compelling reason, deprives him or her of

such rights. However, visitation can be
reinstated if it showed that the deprivation
is too harsh or is no longer present.

Dissolution of the conjugal partnership

a. The properties will be liquidated and distributive
according to the comprise agreement of the
spouses or to their pre-nuptial agreement.
However, absence of which, the absolute
community of property regime will govern.
b. If the union is without marriage
- The property regime shall be governed by
the rule of co-ownership provided for in
Articles147 & 148, and not the conjugal
partnership
of
gains
or
absolute
community property.
c. All creditors of both parties must be notified
and the conjugal dwelling shall be adjudicated
in favor of the spouse with whom majority of
the common children choose to remain.

STEP 3:
Upon receipt of verified petition for declaration of
absolute nullity of Marriage or Annulment of
Marriage or Legal Separation
The Court may issue Provisional Orders:
This upon application under oath of any parties
may issue provisional orders and protection
orders with or w/out a bond, for such period and
under such terms and conditions as the court
may deem necessary.
Includes:
1) Spousal support
2) Child support
3) Child custody
4) Visitation rights
5) Hold departure order
6) Order of protection

Presumptive Legitime
- This is the part of the testators property
which he cannot dispose of because the law
has reserved it for certain heirs called
compulsory heirs.
The presumptive Legitime of the children
shall be delivered to them in cash, property
or sound security and it must be provided in
the decree
- This is only required only in the dissolution
of marriage in Article 40. It is not required in
other forms of void marriages because said
marriages are to be governed by coownership.
The partition and distribution of the properties of
the spouses and the delivery of the presumptive
legitimes to be children shall be recorded in the
Office of the LCR and in the Registry of Deeds in
order to bind the 3rd person.
- Non-compliance of the said requirement will
render the subsequent marriage of the
parties null and void

Article 50-54: Decree of Annulment and

Nullity of Marriage

1.

2.
3.

4.
5.

Effects of Annulment and Nullity of Marriage

Shall be according to Article 43 of the Family Code
Children under voidable marriage will still be
considered legitimate however for children born
under a void marriage, they will become
illegitimate children
Except:
Children conceived and born before the nullity
of marriage on the ground of psychological
incapacity under 36 became final are
considered legitimate
Children conceived and born of subsequent void
marriage under Article 53 are also considered
legitimate.
Properties may be separated to whatever
agreement they may have agreed to.
Donations to one another will remain valid but if
the done is the guilty spouse, then the donation will
be revoked by operation of law.
Insurance beneficiaries designated to the guilt
spouse may be revoked even if it is irrevocable.
The guilty spouse is barred from inheritance to the
innocent spouse either by testate or intestate
succession.

LEGAL SEPARATION
Legal Separation a.k.a. Relative Divorce
- This does not dissolve the marriage as it is
nothing more than a separation in bed-andboard (a mensa et thoro) of the spouses.
- In the eyes of the law, the husband and wife
are still married to each other but they are
already allowed to live separately.

23

Article 55: Grounds for Legal Separation

Grounds for Legal Separation:
These are exclusive grounds and therefore no
other grounds for legal separation can be
invoked except those stated in Article 55
These grounds need not to exist prior to the
marriage as they even usually occur after the
marriage

betrayal of the trust of one spouse. Thus,

even a husband single act of sexual
intercourse with another woman is already
ground for legal separation.
Lesbianism, homosexuality, drug addiction
and habitual alcoholism
- Can only be a ground for legal separation if
they occur during the marriage.
- If said defects already existed before the
marriage and they were concealed from the
other spouse, they could be grounds for
annulment of marriage.

1. Repeated physical violence or grossly abusive

conduct directed against the petitioner, a
common child or a child of the petitioner.
2. Physical violence or moral pressure to compel
the petitioner to change religious or political
affiliation.
3. Attempt of respondent to corrupt or induce the
petitioner, a common child, or child of the
petitioner to engage in prostitution or
connivance in such corruption or inducement.
4. Final judgment sentencing the respondent to
imprisonment of more than 6 years, even if
pardoned.
5. Drug addiction or habitual alcoholism of the
respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting of the respondent of a subsequent
bigamous marriage, whether in the Philippines
or abroad.
8. Sexual infidelity or perversion
- Sexual perversion is determined on a caseto-case basis
9. Attempt by the respondent against the life of
the petitioner
- This must not be justified by self-defense or
that the spouse attacked was caught in
flagrante delicto having carnal knowledge
with another man or woman.
- Criminal conviction is not required as the
attempt on the life of another spouse may
be proven by preponderance of evidence.
10. Abandonment of petitioner by respondent
without justifiable cause for more than 1 year.

Article 56-57: Defense for Legal Separation

Grounds for Dismissal for Legal Separation:
1. Where the aggrieved party condoned the
offense or act complained of
2. Where the aggrieved party has consented to
the commission of the offense or act
constituting the grounds for legal separation
3. Where there is connivance between the
parties in the commission of the offense or
act constituting the ground for legal
separation
4. Where both parties have given ground for
legal separation
5. Where there is collusion between the parties
to obtain the decree of legal separation
6. Where the action is barred by prescription
- An action for legal separation shall be filed
within 5 years from the time of occurrence
of the cause.
The court may take judicial notice of prescription. If
prescription is apparent from the allegations in the
complaint for legal separation, the court can
dismiss it motu proprio. Thus, even if
prescription is not interposed as a defense but it
becomes manifest after trial, the court may stil
dismiss the complaint.
Condonation
An act of forgiving and is given after the
fact, while consent is given after the act that
gives rise to the ground for legal separation.
Consent
You allowed such ground to happen
Connivance
This happens when the spouse participated
in the downfall of the other as by providing

Criminal
conviction
of
adultery
or
concubinage
- is not required in the action for legal
separation. The court may grant legal
separation by mere preponderance of
evidence.
- Other acts of sexual infidelity short of
adultery and concubinage are enough as
long as the said acts constitute a clear

24

actively the opportunity for the wrong doing

directly or indirectly.
Mutual Guilt
This means that both parties are at fault or
have given ground for legal separation.
You cannot come to court if you are a guilty
party.
Collusion
This refers to an arrangement between the
spouses to obtain a decree of legal
separation
by
secret
maneuvers
or
pretensions by making it appear that a valid
ground exist even if there is none.
Also included as a ground for dismissal for
petitions of nullity and annulment

collusion the fiscal will submit a report of no

collusion to the court.
General Rule: The Fiscal must actively intervene
in the case and submit a report to the court that
there was no collusion between the parties.
Exception: If the annulment or declaration of
nullity of marriage was strongly opposed &
heatedly contested by the defendant by hiring a
lawyer who filed several pleadings and actively
participated in the trial of the case.
The non-intervention of the fiscal to assure lack
of collusion between the parties is not fatal to
the validity of the proceedings in court
especially when it was not shown that evidence
was suppressed or fabricated by any of the
parties. In this case, the strict application of
Article 48 and 60 of the Family Code is
unwarranted.

PRESCRIPTION
- The reckoning point of the 5 year period is
the time of the occurrence of the cause
Article 58-59: Procedures for Legal
Separation
Note: Death of one party extinguishes a pending
action for legal separation.

STEP 2:
Before the court will commence to the hearing of
the case, it should allow a Six Months Cooling-off
Period to lapse from the filing of the complaint
This is intended to give the parties enough time
to further contemplate their positions and allow
the healing balm of time to aid them in the
process.
This is a mandatory requirement and its noncompliance renders the decision infirm.
However, what is only prevented is the hearing
of the case on its merits. It does not involve the
hearing of other incidents such as custody of
minor children, support pendete lite and
alimony.
The court may also entertain prayers of
injunctions within the period or even motion to
dismiss.

STEP 1:
Filing in the Family Court the complaint for
Annulment or Declaration of Marriage
The defendant shall be served with summons
and a copy of the complaint whereby he is
given 15 days to file his answer from receipt
thereof.
If no answer is filed by the defendant within 15
days:
The court cannot declare the defendant in
default
The court will order the prosecuting attorney or
fiscal assigned to it to enter his appearance for
the State
- To take steps to prevent collusion between
the parties
- To insure that evidence is not fabricated or
suppressed
- To defend a valid marriage
- To expose an invalid one
After conducting an investigation, the fiscal is
mandated by law to make a report to the court
on the result of his investigation. If there is no

Why is this only peculiar to legal separation

and not to voidable and void marriage?
- As distinguished from void and voidable
marriage, the grounds for legal separation
have nothing to do with the status of the
marriage
- It only governs the relationship of the
parties
- In void and voidable marriages, it involves
the status of the marriage itself. We cannot
compromise the status of a marriage.

25

1) The spouses shall be entitled to live separately

from each other, but the marriage bond shall
not be severed.
2) The
absolute
community
or
conjugal
partnership shall be dissolved and liquidated
but the offending spouse shall have no right to
any share of the net profits, which shall be
forfeited in accordance with article 43(2).
3) The custody of the minor children shall be
awarded to the innocent spouse, subject to the
provisions of 213 of this code.
4) The offending spouse shall be disqualified form
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse in the will of the innocent
spouse shall be revoked by operation of law.
5) A donation by reason of marriage made by the
innocent spouse in favor of the guilty spouse is
revoked by operation of law.
- The action to revoke the donation under
Legal Separation must be brought within
five years from the time the decree of legal
separation has become final.
6. The designation of the guilty spouse as the
beneficiary of the insurance policy of the
innocent spouse may be revoked by the latter
even if there is a designation that it is
irrevocable.

No court may render judgement on the basis of

confession or a stipulation of facts.
- Also for nullity and annulment cases
- The court is required to conduct trial and
present their respective evidences
STEP 3:
Spouses are entitled to live separately from each
other
After the filing of the petition for legal
separation the parties are already entitled to
live separately from each other.

Admini
stration of Conjugal Properties
- In the absence of written agreement of both
parties as to the administration of the
absolute community or conjugal partnership
property shall be decided by the court.
- If neither of the parties is fit to administer it,
the court may appoint a third person to
manage the community properties.

Article 65-66: Effects of Reconciliation

A corresponding joint manifestation under oath
signed by them shall be filed with the court in the
same proceeding for legal separation
Effects:
A. For pending cases
- It shall be terminated right away
B. If the decree has already been issued
- The decree shall be set aside.
C. Separation of properties and any forfeiture
of share to the guilty party already effected
- This shall continue to subsist, unless the
spouses agree to revive their former
property regime.

Suppor
t of the parties and their common
children and custody
- The support for the parties and their
common children will be taken from the
absolute community or conjugal
partnership.
- If the court awards the custody of their
minor children to one spouse, the other
spouse should be given visitorial rights.

Joint Manifestation of Reconciliation specifications:

1. The properties to be contributed anew to
the restored regime
2. Those to be retained as separate properties
of each spouse
3. The names of all their known creditors, their
addresses and the amounts owing to them

Article 63-64: Effects of Legal Separation

EFFECTS OF LEGAL SEPARATION:

26

The agreement of revival must be in writing and

attached to the motion filed in court trying the
legal separation case. Creditors of both parties
must be duly notified by furnishing them copies of
both the agreement and the motion.
- Once the court approves the agreement,
the order of the court must be recorded in
the proper registries of properties.

Those creditors that were not listed or not

notified shall not be prejudiced by the
recording of the order in the proper
registries.

/rmgc2015

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