Executive Order No.

209 The Family Code of the Philippines Date of Effectivity : August 3, 1988

Title I- Marriage

Chapter 1 Requisites of Marriage

Article 1 Marriage Accordance with law- become one for the purpose of mutual help and PROCREATION Fundamental- basic civil rights Governed by law and not subject to stipulationsmarriage is not at most a civil contract but at least a civil contract where status and interest of the state is added (annulment on ostensibility) Special contract- discrimination not allowed; provision of equal protection Marriage as a status- more to do with morals and civilization Marriage in international law- UDHR, IIICESICR, ICCPR; no doubt that institution of marriage is universally regarded as fundamentally important and deserves full protection Constitutional Protection- recognizes Filipino family as the foundation of nation, does not shed the spouses integrity Legislative Control- legal effects; limitations, grounds of annulment, must not contravene the mandates of Constitution, not violate equal protection clause Law governing validity of marriage- the validity of marriage is determined by the law effective at the time of the celebration

2. A valid marriage license except in the cases provided for in Chapter 2 of this Title 3. 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. Free Consent- willingly and deliberately entered into marriage, intelligence and understanding of marriage Solemnizing officer- not the presence or absence of solemnizing officer constitutes the formal requirement but absence or presence of the authority of the solemnizing officer Valid Marriage license- it has only a lifetime of 120 days from the date of issue (signing of marriage license at local civil registrar) and deemed automatically cancelled when not in use Marriage Ceremony- does not mean wedding ceremony but solemnization of duly authorized by the state, appearance of contracting parties, declaration, in the presence of two legal witnesses, need not be vocally expressed, agreement is important not the form Common law- unrecognized due to no marriage ceremony Void Ab Initio (absence of essential/formal requisites) Voidable (defect in essential requisites) Consent by fraud, force, intimidation Irregularity (irregularity in formal requisites shall not affect the marriage) Non-observance of requirements of issuance of marriage license Issuance of marriage license in a place not their residence Name other than his true name at the license Clerical error at the license Absence on witnesses

Article 2-6 Essential requisites 1. Legal capacity of contracting parties who must be a male and a female 2. Consent freely given in the presence of the solemnizing officer Formal Requisites 1. Authority of solemnizing officer

exp. Article 35 (2) Below 18 years even if it has consent with parents

Incestuous Bigamous Same sex exp CAH/Intersex

individual Absent of consent Forget to bring the marriage license Signing the marriage contract before the solemnization unsworn application of ML Failure to pass original BC/baptismal C to the local civil registrar Lack of Advice Lack of Advice Failure of marriage counseling Issuance of marriage license despite of absence of publication Failure of the officer to send copies of marriage certificates to LCR 3.

4.

Proxy Non-disclosure of prior marriage/divorce falsely stated that he/she had not been previously stated incestuous forgery for mother's consent

5.

6.

registered with the civil registrar general, at least on of the contracting parties belongs to his church Ship Captain and Airplane Chief- articulo mortis, between passengers or crew members, must be in flight/stopovers Military commander- military commander of a unit, must a commissioned officer, chaplain must be assigned but is absent, articulo mortis/civilians or members must be within military operation (widespread military activity over an area and does not refer to a simulated exercise eg. Maneuvers, police actions, wars, civil war, rebellion) Consul-General, Vice-Consul, Consul- only when contracting parties are both Filipino, solemnization shall only happen in the place Mayor- if temporarily incapacitated to perform his duties the Vice Mayor can solemnize

Jest

Article 8 exceptions of articulo mortis and remote places in accordance to the place of solemnization Article 9 Marriage license should be issued by the local civil registrar of the city or municipality of the habitual residence of either contracting parties except those excepted of licenses. Article 10- duties of consular officials; local civil registrar and solemnizing officer Article 11- Requisites for the application of marriage license 1. Full name, place of birth, age, date of birth, civil status, present residence, citizenship of contracting parties 2. If previously married, how, when, and where the previous marriage dissolved/annulled 3. Degree of relationship of the contracting parties 4. Full name, residence and citizenship of father and mother/ guardian in case no parents and contacting party is under 21 years old Purpose of documentary requirements- proof of existence, to discourage deceptions and seductions, prevent illicit intercourse under the guise of matrimony, relieve from doubt the status of parties

Marriage license after the ceremony Judge solemnizing beyond the jurisdiction exp. Good faith Marriage between a Filipino and foreigner before Consul exp when it is valid in that country

Failure of LCR to register the application

Article 7 Authorized Solemnizers: 1. Judges only within their jurisdiction, incumbent, 2. Priest, Rabbi, Imam, or Minister of any church or Religious Sect- must be duly authorized by his or her church or religious sect, must act within the limits of the written granted authority given to him or her by the church or religious sect, must be

Duty of Local Civil Registrar- just write down the impediments and still issue the license unless there is an order from the court Article 12 What are the requirements needed by the LCR upon application of marriage license? 1. Original birth certificate or Baptismal Certificate unless parents would appear personally or by merely looking of the applicants In case of destruction or loss or not yet received: 1. Furnish current residence certificate 2. Sworn before the LCR/any public official authorized to administer oaths; sworn declaration of two legal witnesses telling the current residence and citizenship of the contracting parties (nearest kin or persons in good reputation) Article 13 In case of previously married: 1. attach judicial decree or death certificate 2. If cannot secure; make an affidavit Article 14 1. Consent of parents through writing and personally appears 2. OR affidavit made in the presence of two legal witnesses and attested before any official authorized to administer oaths Article 15 21-25 Parental Advice, IF they do not obtain then marriage license shall be issued 3 months following the completion, IF parents refused then it should be stated in the sworn statement Article 16 Attach certificate issued by Imam, Priest etc. to the effect that the parties have undergone counselling. Failure to comply shall suspend the issuance of marriage license 3 months from the completion of publication (either of contracting parties)

Article 17 Duty of LCR- to post the application for ten consecutive days at the bulletin outside the office of the local civil registrar in a conspicuous place and accessible to general public Article 18-19 LCR shall merely wrote down the impediments and shall issue the license with necessary fees except indigenous people despite any findings. It is to eliminate any opportunity for extortion. Only the court has the power to intervene the issuance of license. Article 20 Marriage licensed is valid only in the Philippines and is good only for 120 days. Article 21 If both of the contracting parties are foreignersbefore the issuance of license, they have to submit a certificate of legal capacity If stateless persons or refugees- affidavit showing such capacity to contract marriage Article 22 Marriage Certificate 1. Declaration that they take each other as husband and wife 2. Full name, sex, age, citizenship, religion, habitual residence of BOTH contracting parties 3. Date and precise time of celebration 4. Proper marriage license has been issued by the law except Chapter 2 of this title 5. Parental consent/Parental Advice Duty of solemnizing officer 1. Furnish original marriage certificate 2. Send duplicate or triplicate copies not later than 15 days to the LCR of the place of celebration 3. Should also have a copy for himself Presumption of marriage- a man and a woman who have entered into marriage therefore assumed with

no legal impediments, credible testimony will also give rise to the presumption SEMPER PRESUMITUR PRO MATRIMONO- The presumption is always in favor of the validity of a marriage. Proof of Marriage 1. Marriage contract/certificate (* not made many years after marriage) 2. Photostat copy but duly certified by LCR to be authentic 3. Photostat copy not duly certified yet not objected from opposing parties 4. Baptismal certificate, judicial decisions, family bible Failure to present marriage certificate 5. Presumption of marriage 6. Parol evidence/ credible testimony Public and open cohabitation- it should be something MORE than mere living together 7. Birth and baptismal certificate of children 8. Solemn statement of the will of deceased Proof to attack validity of Marriage 1. Cogent proof Declaratory Relief- if parties are not certain they can file a petition for declaratory relief Article 24-25 Any marriage license not in the record of LCR is void because LCR is given a high probative value. They are charged with preparation and keeping all official documents. Entries in Marriage Register 1. Full name, address, age of both contracting parties 2. Date of solemnization 3. Names, address of witnesses 4. Name, Address, Relationship to the one who gave consent 5. Full name, title, address of the solemnizer Article 26 Lex Loci Celebrationis- marriage valid abroad are valid here

International Comity Each state has the right to declare which marriages are valid or void. Exceptions: 1. Either of contracting parties are Filipinos and below 18 years (Nationality Principle) 2. If foreigner below 18 years and legal abroad and a Filipina at a legal age (unless foreigner acquire certificate of legal capacity abroad) 3. Bigamy 4. Mistake of identity in an instance of fraud, absence of consent, a party did not intend to marry the other 5. Failure of declaration of annulment 6. Psychologically incapacitated 7. Incestuous Marriage 8. Common-law marriage 9. Same sex marriage 10. Divorce Processual Presumption of Foreign marriages- if foreign marriage cannot be proved then Philippine law should prevail

Chapter 2 Marriages from License Requirement

Article 27-34 Exemption from Marriage License 1. 2. 3. 4. Muslims Ethnic minorities Articulo Mortis Remote places

Solemnizing Officers 1. Chief Pilot and Ship Captains a. Articulo Mortis b. While on flight/stopover c. Passengers or crew 2. Military Commander a. Of a unit b. Commissioner/lieutenant c. Within the zone of military operation 3. Muslim and Ethnic groups 4. Cohabitation for five years

Chapter 3 Void and Voidable Marriages

Article 35 Void JUDICIAL DECLARATION OF NULLITY never be ratified attack collaterally can be questioned after the death of either party imprescriptibly interested party can attack no legal effects Voidable ANNULMENT

asserted even if it is not the main or principal issue of a case then there is no need to produce a judicial declaration of nullity to prove that the marriage is void Direct Attack filing a case precisely putting forth as principal issue the nullity of marriage 1. Purpose of remarriage 2. No judicial declaration is needed in determination of heirs, legitimacy, illegitimacy of the child, settlement of state, dissolution of property regime 3. Donor desires to revoke a donation PROPTER NUPTIAS (in consideration of marriage) Good Faith in Marriage honest and reasonable belief, find himself innocent of fraud and wrongdoing, only the solemnizer should be in good faith by the parties (PUTATIVE MARRIAGE), it is always presumed until the contrary is shown Article 36

can be ratified cannot be assailed collaterally assailed only during the lifetime of parties prescribed only the contracting parties can attack conjugal partnership

Res-judicata rule on splitting-a-cause of action Bad Faith or Good Faith in Void Marriagesimmaterial, disregard doctrine of unclean hands except (1) Good faith for the solemnizing officer (2) Presumption of Death Bad Faith affecting Property Disposition material, (general rule) in void marriages the property regime is co-ownership When only one party is in good faith 1. Share of the party in bad faith is forfeited 2. Common children or descendants share 3. Innocent party When subsequent marriages and only one is in good faith 1. Share of the party in bad faith shall be forfeited 2. Common children 3. Children of the guilty spouse by a previous marriage 4. Children of innocent spouse Collateral Attack general rule; void marriages can be collaterally attack, nullity of marriage can be

Psychological Incapacity depends on the facts of the case, not on the basis of prior assumptions, predilections or generalization but according to its own facts not equated with insanity or total mental inability to function senseless, protracted, constant refusal in compliance with the essential marital obligations Afflicting a party even before the celebration of marriage Insanity is not a prerequisite

Proving Psychological Incapacity Indicators or external manifestations must be clearly alleged in the complaint filed in court since it deals with state of mind Non-Observance of duties as husband or wife Unreasonable attachment to his or her family or barkada NOT physical illness or mere isolated idiosyncrasies NOT be mere refusal or neglect NOT mere incompatibility and irreconcilable differences Gross irresponsibility and utter disregard

Proof by Medical and clinical rules Expert testimonies testimonies of a psychologist or psychiatrist yet not a requirement for declaration of nullity condition sine qua non, the court may or may not accept because it is based on the totality of evidence yet given a great weight, PATHOLOGICAL LIAR not personally examine the subject but just basing on the data given by respondent, doctor-patient privileged communication must respected

Jurisprudential Guidelines The burden of proof to show nullity of the marriage belongs to the plaintiff Root cause of incapacity must be o Medically or clinically identified to be incurable or permanent and must be grave o Alleged in the complainant o Proven by experts o Clearly explained in the decision Incapacity must be at the time of celebration Damages no damages because non-cognizance of ones essential marital obligation at the time of ceremony Article 37 Not allowed: (1) marriage between ascendants and descendants of any degree (2) between brothers and sisters, whether of the full or half-blood Reasons: 1. Grossly indecent, immoral, inimical to the purity of happiness of the family and the welfare generation 2. Abhorrent to the nature 3. Confusion of rights and duties 4. Would result to deficient and degenerate offspring 5. Might create jealousy Article 38 Viod ab initio for reasons of public policy: 1. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree

2. Between step-parent and step-children 3. Between parents-in-law and children-in-law 4. Between the adopting parent and the adopted child 5. Between the surviving spouse of the adopting parents and adopted child 6. Between the surviving spouse of the adopted child and the adopter 7. Between an adopted child and a legitimate child of the adopter 8. Between the adopted childen of the same adopter 9. Between parties where one, with the intention to marry the other, killed that other persons spouse or his or her own spouse Article 39 No prescriptive period. Judicial degree merely declares or confirms void ab initio marriages Heirs can no longer file a case for the nullity of marriage of their parent with stepparent Parents cannot file case for nullity in relation to the marriage of their children Can be collaterally attacked by any interested party to give rise to certain rights eg. Heirs can attack the validity of the marriage of the decease parent so that children of the deceased parent can be considered illegitimate for purposes of inheritance

Article 40 Judicial Declaration of Nullity should be obtained and registered with LCR Reason: consequence of changing rules, to do away with any continuing uncertainty on the status of the second marriage Failure vs Bigamy If the first marriage is void and a party remarries without obtaining judicial declaration of annulment, it is not bigamy but the subsequent marriage is void due to failure of complying requirements If the first marriage is valid in all aspects and a party entered into a subsequent marriage, it is bigamy.