Constitutional Provisions on Marriage

Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and
shall be protected by the State.

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

Art. 2. No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and

(2) Consent freely given in the presence of the solemnizing officer. (53a)

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(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. (53a, 55a)

Art. 4. The absence of any of the essential or formal requisites shall render the marriage
void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall not affect the validity of the marriage but
the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by
his church or religious sect and registered with the civil registrar general, acting within the
limits of the written authority granted by his church or religious sect and provided that at
least one of the contracting parties belongs to the solemnizing officer's church or religious
sect;

(3) Any ship captain or airplane chief only in the case mentioned in Article 31;

(4) Any military commander of a unit to which a chaplain is assigned, in the absence of
the latter, during a military operation, likewise only in the cases mentioned in Article 32;

(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)

Article. 8. The marriage shall be solemnized publicly in the chambers of the judge or
in open court, in the church, chapel or temple, or in the office the consul-general, consul
or vice-consul, as the case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in accordance with Article 29 of this
Code, or where both of the parties request the solemnizing officer in writing in which case
the marriage may be solemnized at a house or place designated by them in a sworn
statement to that effect.

Chapter 3. Void and Voidable Marriages

Art. 35. The following marriages shall be void from the beginning:

(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 so;

(3) Those solemnized without license, except those covered the preceding Chapter;

(4) Those bigamous or polygamous marriages not failing under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the
other; and

(6) Those subsequent marriages that are void under Article 53.
Article 349. Bigamy. - The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings.

1. What is a bigamous marriage?

A bigamous marriage is the state of a man or a woman having two spouses, who are
living, at the same time.

Bigamy is the criminal offense of willfully and knowingly contracting a second marriage
(or going through the form of a second marriage) while the first marriage, to the knowledge
of the offender is still subsisting and undissolved. (The Law Dictionary featuring Black’s
Law Dictionary)

2. What are the elements of the crime of bigamy?

The elements of the crime of bigamy are:
1. That the offender has been legally married;
2. That the first marriage has not been legally dissolved or, in case his or her spouse
is absent, the absent spouse could not yet be presumed dead according to the
Civil Code;
3. That he contracts a second or subsequent marriage; and
4. That the second or subsequent marriage has all the essential requisites for
validity.
(People vs. Odtuhan, G.R. No. 191566, 17 July 2013)

5. What is the status of the children resulting from bigamous marriages?

Children who were born of parents in a bigamous marriage are considered illegitimate.

6. If the first marriage was annulled, would the second “bigamous” marriage be
recognized?
If the first marriage was declared by the court as void ab initio, it would mean that there was no
marriage to begin with as such declaration of nullity retroacts to the date of the first marriage. In
other words, for all intents and purposes, reckoned from the date of the declaration of the first
marriage as void ab initio to the date of the celebration of the first marriage, the accused was under
the eyes of the law, never married. (Morigo vs. People, G.R. No. 145226, 06 February 2004)

In summary, it means that the first marriage which was annulled by the courts is considered as never
taken place and that the husband has been single all the while when he contracted a second marriage.
Such second marriage is considered as the valid legal marriage in the eyes of law and that the
husband had not committed the crime of bigamy.

Article 351. Premature marriages. - Any widow who shall marry within three hundred and
one day from the date of the death of her husband, or before having delivered if she shall
have been pregnant at the time of his death, shall be punished by arresto mayor and a
fine not exceeding 500 pesos.

The same penalties shall be imposed upon any woman whose marriage shall have been
annulled or dissolved, if she shall marry before her delivery or before the expiration of the
period of three hundred and one day after the legal separation.

Article 352. Performance of illegal marriage ceremony. - Priests or ministers of any

religious denomination or sect, or civil authorities who shall perform or authorize any
illegal marriage ceremony shall be punished in accordance with the provisions of the
Marriage Law.

The offender under Article 352 must be authorized to solemnize marriage

Art. 352 presupposes that the solemnizing officer is athorized to solemnize marriages. If
the accused is not authorized to solemnize marriage and he performs an illegal marriage
ceremony, he is liable under Art. 177.

The Offender is punished under the Marriage Law

The penalty is imprisonment for not less than 1 month nor more than 2 years, or a fine
not less than P200 nor more than P2000.

Since one of the formal requisites of a valid marriage is the authority of the solemnizing
officer, the lack of proper authority by the priest makes the wedding irregular and renders
the marriage void ab initio. Furthermore, any of the contracting parties who is aware of
the fact of the lack of proper authority of the solemnizing officer will also be criminally
liable. (Leonor D. Boado, Notes and Cases on the Revised Penal Code, 2008)

On the other hand, if the person who solemnized your brother’s marriage merely
pretended to be a solemnizing officer, his liability will not be for the aforementioned crime
but for the crime of usurpation of public function because of his illegal assumption of such
authority (Ibid.)
However, please take note that despite the lack of proper authority of the person who
officiated your brother’s wedding, their marriage can still be considered legal if either or
both of the parties believe in good faith that the solemnizing officer was legally authorized
to officiate their marriage (Article 35, Family Code of the Philippines).

U.S. vs. San Juan

One of the contracting parties was minor. Can be excused from criminal prosecution
upon the ground that he has been in good faith.

Article 177

Article 177. Usurpation of authority or official functions. - Any person who shall knowingly
and falsely represent himself to be an officer, agent or representative of any department
or agency of the Philippine Government or of any foreign government, or who, under
pretense of official position, shall perform any act pertaining to any person in authority or
public officer of the Philippine Government or any foreign government, or any agency
thereof, without being lawfully entitled to do so, shall suffer the penalty of prision
correccional in its minimum and medium periods.

Acts punished

1. Usurpation of authority;

Elements
a. Offender knowingly and falsely represents himself;
b. As an officer, agent or representative of any department or agency of the
Philippine government or of any foreign government.

2. Usurpation of official functions.

Elements

a. Offender performs any act;

b. Pertaining to any person in authority or public officer of the Philippine
government or any foreign government, or any agency thereof;
c. Under pretense of official position;
d. Without being lawfully entitled to do so