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THE FAMILY CODE OF THE PHILIPPINES

(Executive Order 209, July 6, 1987, as amended


by Executive Order 227, July 17, 1987)
Title I
MARRIAGE
CHAPTER
IREQUISITES
OF
MARRIAGE

ARTICLE
Article 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 fi x
the property relations during
the marriage within the limits
provided by this Code. (52a)

COMMENT
(1) The Two Aspects of Marriage
(a) It is a special contract. (Art. 1).
(b) It is a status or a relation or an institution. (Goitia v.Campos Rueda, 35 Phil.
252). As a status, the principle in contracts that the parties may, by mutual
agreement, put an end to it, cannot certainly apply, for the consequences of the
marriage as a rule are fixed by LAW. (Art. 52).
Notaries public who draw up instruments destroying the inviolability of marriage
(such as agreements permitting spouses to have carnal knowledge with third
parties) are subject to disciplinary action. (Biton v. Momongan, 62 Phil. 7; In re
Santiago, 70 Phil. 66).[NOTE: The phrase after a marriage can refer to
something after a wedding or after the dissolution of a marriage.]
[NOTE: The enactment of RA 6955 declaring unlawful the practice of matching
Filipino women for marriage to foreign nationals on a mail-order basis and other
similar practices.]
(2) Marriage as a STATUS or UNION
It is the union (and inviolable social institution) of one man with one woman for
the reciprocal blessings of a domestic home life, and for the birth, rearing, and
education of children. In one case, the Supreme Court ruled that marriage is also a
new RELATION in the maintenance of which the general public is interested.
(Perido v. Perido, 63 SCRA 97).
Under Art. 1 of the Family Code, the purpose of marriage is the establishment of
conjugal and family life. Under the Constitution, marriage, as an inviolable social
institution, is the foundation of the family and shall be protected by the State.
(Article XV, Section 2,1987 Philippine Constitution).Under the Muslim Code (PD
1083, also called the Code of Muslim Personal Laws of the Philippines, and
declared effective as of Feb. 4, 1977), marriage has a different concept in that a
Muslim can have as many as four wives at a time, provided, he can give them
equal companionship and equal treatment. (See Art. 27 of the Muslim Code).
[NOTE: Marriage (as a ceremony or the wedding ends when marriage as a status
begins).].
(3) Some Principles
(a) Union Physical and spiritual mating.
(b) Of one man with one woman This is monogamy, which is the ideal marriage.

CASES
People v. Roberto Cue
CA-GR 14635-CR, Nov. 8,
1978
Both science and experience
have shown that theso-called
safe or sterile periods
have many times proved
neither safe nor sterile. It
is a proved medical fact that
many women are particularly
eager for sex just after the
menstrual
flow,
indicating
more likely than not that
nature intended the safe
periods to be actually very
naturally fertile ones.

(c) Reciprocal blessings Marriage is a 50-50 proposition; the wife must not
henpeck the husband; neither must the husband oppress the wife.
(d) Birth Since one of the purposes of marriage is the procreation of children,
the natural moral law prohibits artifi cial birth control. (For this is neither birth, nor
control; not birth, for no children are born; not control, for this would result only in
excess and indulgence.). (GilbertK. Chesterton).
(e) Rearing The care of BOTH parents is essential; too often, the rearing is done
by the mother alone, which is tragic.
(f) Education of children It is the natural right of parents to educate their
children.
(4) Marriage Distinguished from Ordinary Contracts
(a) Ordinary contracts are mere contracts; a marriage contract is also a social
institution.
(b) In ordinary contracts, the agreements entered into usually depend on the
stipulations agreed into by the contracting parties unless those stipulations are
against the law, against public policy, against public order, against morals, or
against good customs. In marriage, the nature and the consequences, as well as
the incidents, are governed by the law except with reference to marriage
settlements. In marriage, therefore, as a general rule, stipulations are of no value.
(c) The age for ordinary contracts is the age of majority; for marriage, the age
varies. (This will be treated of subsequently.)
(d) An ordinary contract may end either thru express provision of the law, thru
expiration of the term for which the contract was agreed upon, thru fulfilment of
the purpose for which the contract was entered into, or thru mutual agreement by
the parties concerned. In marriage, only death or annulment for legal causes
dissolves the marriage contract.

Marriage
1. both a contract AND a social
institution
2. generally, stipulations are fi xed by
law not by the parties (exception:
marriage settlement provisions)
3. can be dissolved only by death or
annulment, not by mutual agreement

Ordinary Contract
1. merely a contract
2. stipulations are generally fi xed
by the parties
3.
can
be
ended
by
mutualagreement and by other
legal causes

(5) Rules Governing Marriage Before the New Civil Code


(a) For the marriage ceremony Under Spain, only the religious or canonical
marriages were recognized in the

Philippines. The civil marriages in the Spanish Civil Code of 1889 were never
extended to the Philippines. (Benedicto v. De la Rama, 3 Phil. 341; Garcia v. David,
67 Phil. 279).
The Americans introduced civil marriage in General Order 68, promulgated on
December 18, 1899, as modified
by Acts 1451 and 3412. General Order 68 was repealed by Act 3613 (effective
Dec. 4, 1929), as amended by Act
3848, Com. Acts 62 and 114 and Rep. Act 241. In turn, Act 3613 has been
repealed by the Civil Code, except insofar
as the formers penal provisions are concerned. (See Art. 96, Civil Code).
(b) For some effects of marriage Arts. 44 to 78 of the Spanish Marriage Law of
1870 were partly in force.
(c) For properties of the marriage and for property contracts on the occasion of
marriage Arts. 1315 to 1444 of the old Civil Code governed.
[NOTE: Arts. 42 to 107 of the old Civil Code were never enforced in the Philippines
because their application here was suspended by a decree of the Spanish
Governor- General dated Dec. 2, 1889. (Garcia, et al. v. David, et al., 67 Phil.
279).]
(6) Offer of Marriage
People v. Dreu GR 126282, June 20, 2000
The offer of the accused to marry the victim establishes his guilt. As a rule in rape
cases, an offer of marriage is an admission of guilt. (People v. Casao, 220 SCRA
362; People v.
Gerones, 193 SCRA 263).In the case at bar, after the accuseds offer of marriage
was rejected, he left town and only came back after his co-accused had been
acquitted. Clearly, his offer of marriage was apparently only an attempt to evade
prosecution and obviously makes his leaving town an incident of fl ight. As earlier
adverted
to, this is evidence of guilt.

(7) Acknowledgment of Offspring of Crime

(8) Guidelines for the Proper Appreciation of Minority Either as an


Element of a Crime or as a Qualifying Circumstances
People v. Gavino

People v. Manahan
GR 128157, Sep. 29, 1999,
113 SCAD 248
Persons guilty of rape shall be
sentenced to acknowledge the
offspring of the crime unless
the law should prevent him
from doing so.

399 SCRA 285 (2003)


1. the best evidence to prove the age of the offended party is an original or
certified true copy of the certificate of live birth of such party;
2. in its absence, similar authentic documents such as baptismal certificate and
school records which show the date of birth of the victim would suffice to prove
age;
3. if the certificate of live birth or authentic document is shown to have been lost
or destroyed or otherwise unavailable,
the testimony, if clear and credible, of the victims mother or a member of the
family either by affinity or consanguinity who is
qualified to testimony on matters respecting pedigree such as the exact age or
date of birth of the offended party pursuant to Sec. 40, Rule 130 of the Rules of
Evidence shall be sufficient;
and
4. in the absence of all the above, the complainants testimony will suffice
provided it is expressly and clearly admitted by the appellant.

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

(9) The Human Side of a Case should not be Totally Ignored


Estrada v. Escritor
400 SCRA 1 (2003)
In this case, the Supreme Court posited the following views, thus:
1. the human side of the instant case should not be totally ignored because
respondents present position is not one which has caused scandal to anyone truly
concerned with public morality;
2. without fear of contradiction, it would be violating godly laws of charity and love
and, to say the least, embracing cruelty and hypocrisy, if [the Supreme Court]
should require
respondent to abandon her faithful spouse and loving son, or penalize her for
treasuring the unity of her family as she would keep her work, for the punctilious
satisfaction of a blind world;
3. the relations, duties, obligations, and consequences of marriage are important
to the morals and civilizations of a people and to the peace and welfare of society;
and
4. any attempt to inject freedom of religion in an effort to exempt oneself from the
Civil Service rules relating to the sanctity of the marriage tie must fail.
(1) Essential Requisite No. 1 Legal Capacity of the Contracting Parties
(a) This means that the parties must have the necessary age or the necessary
consent of parents in certain cases.
(b) There must be no impediment caused by a PRIOR EXISTING MARRIAGE or by
CERTAIN RELATIONSHIPS by affinity (law) or consanguinity (blood).
(2) Essential Requisite No. 2 Their consent freely given
(a) Consent refers to the consent of the contracting parties, not parental

Estrada v. Escritor
400 SCRA 1 (2003)

offi cer. (53a)

consent. Parental consent is in connection with requisite No. 1 referring to legal


capacity.
(b) Consent is required because marriage is a contract, a voluntary act.
(c) If there is consent, but it is VITIATED by error, fraud, intimidation, force, etc.,
the marriage is not void; it is merely VOIDABLE, i.e., valid until annulled.
(d) If there is absolutely no consent, or when the parties did not intend to be
bound, as in the case of a JOKE or in the case of a STAGE or MOVIE PLAY, the
marriage is VOID.
[NOTE: Without the essential requisites, the marriage is void except as stated in
Art. 35(2).].

Art. 3. The formal requisites of


marriage are:
(1) Authority of the solemnizing
offi cer;
(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 offi cer 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)

Formal Requisite No. 1 Authority of the person solemnizing the


marriage
Under the old Marriage Law (Act 3613, Sec. 27), the marriage was considered
completely valid if, at the time of solemnization, both the spouses or one of them
believed in good faith that the solemnizer was actually empowered to do so and
that the marriage was perfectly legal.
Under the Civil Code, however, the good or bad faith of the parties was
immaterial. If the person performing the marriage had no authority to do so, the
marriage was void, regardless of the good or bad faith of the parties. Under the
Family Code, even if the solemnizing officer is not authorized, the marriage would
be valid if either or both parties believe in good faith in his authority to solemnize
the marriage.
Bartolome v. Bartolome
L-23661, Dec. 20, 1967
Formal Requisite No. 2 A marriage license, except in a marriage of
exceptional character
(a) What is required is the marriage license, not the marriage certificate. The
latter is not an essential or formal requisite; thus, an oral solemnization is
valid. In fact, a marriage may be proved by oral evidence.
Bartolome v. Bartolome
L-23661, Dec. 20, 1967
FACTS: A man and a woman lived together as husband and wife for many years,
but in the office of Manila Civil Registry, there was no record that a marriage
between them had
ever been celebrated.
ISSUE: Are we to presume that they are married?
HELD: Yes, because of their cohabitation for many years. Moreover, the lack of a

marriage record in Manila does not rebut the presumption of marriage, for the
marriage could have been celebrated elsewhere.
[NOTE: The minority of the private complainant, concurring with the fact that the
accused is the common-law husband
of the victims mother, is a special qualifying circumstances warranting the
imposition of the death penalty if alleged in the information and duly-proved.
(People v. Lizada, 396 SCRA
62 [2003]).
Both the circumstances of minority and relationship must be alleged in the
information and proven during the trial to warrant the imposition of the death
penalty. (People
v. Marahay, 396 SCRA 129 [2003] and People v. Caete, 400
SCRA 109 [2003]).]

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 render the
marriage voidable as provided in
Article 45.
An irregularity in the formal
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. (n

Art. 5. Any male or female of the


age of eighteen years or
upwards not under any of the
impediments mentioned in
Articles 37 and 38, may contract

Formal Requisite No. 3 A marriage ceremony


This must be made in the presence of not less than two witnesses of legal age.
[NOTA BENE: Absence of any of the formal requisites the marriage is VOID AB
INITIO, unless one or both of the parties are in good faith.].
1) Irregularity in Formal Requisites Will Not Affect Validity of Marriage,
In General
This will, however, subject the party responsible to civil, criminal, and
administrative liabilities. Some examples of these irregularities, include: presence
of only one (1) witness, lack
of legal age of witnesses, failure to comply with procedural requirements under
Art. 12, non-observance of 3-month period under Art. 15, and failure to comply
with requirements of notice
under Art. 17.
Buag v. CA
GR 101749, July 10, 1992
Dismissal of complaint for forcible abduction with rape was by mere resolution of
the fi scal (now prosecutor) at the preliminary investigation stage. There is no
declaration in a
fi nal judgment that the fact from which the civil case might arise did not exist.
Consequently, the dismissal did not in any way affect the right of private
respondent to institute a civil action arising from the offense because such
preliminary dismissal of the
penal action did not carry with it the extinction of the civil action.
Marriageable Ages of the Contracting Parties
Art. 5 sets forth the marriageable ages of the contracting parties to a marriage. Be
it remembered that formerly, the marriageableage was 14 yrs. for females and 16
yrs. for males. In addition to the age requirement set forth in Art. 5, both parties
must not suffer from legal impediments of blood

Buag v. CA
GR 101749, July 10, 1992

marriage. (54a)

Art. 6. No prescribed form or


religious rite for the
solemnization of the marriage is
required. It shall be necessary,
however, for the contracting
parties to appear personally
before the solemnizing officer
and declare in the presence of
not less than two witnesses of
legal age that they take each
other as husband and wife. This
eclaration shall be contained in
the marriage certificate which
shall be signed
by the contracting parties and
their witnesses and attested
by the solemnizing officer.
In case of a marriage in articulo
mortis, when the party at the
point of death is unable to sign
the marriage certificate, it shall
be sufficient for one of the
witnesses to the marriage to
write the name of said party,
which fact shall
be attested by the solemnizing
offi cer. (55a)

relationship as to render the marriage incestuous under Art. 37 or of certain


relationships as to render the marriage void for reasons of public policy under Art.
38. Likewise, parties of marriageable ages and not suffering from any legal
impediment are obligated to still comply with other essential as well
as formal requisites.
(1) Necessity for a Ceremony or Celebration
A ceremony is required, although no particular form for it is needed. And it must
be before a duly authorized person. It need not be written; signs would be suffi
cient (People v. Cotas,C.A., 40 O.G. 3154) but in no case would a common-law
marriage between Filipinos be considered as valid, for performance must be
before the proper offi cer. (See Cruz v. Catandes, C.A.,39 O.G. 324; Enriquez, et al.
v. Enriquez, et al., 8 Phil. 565).

People v. Opea
L-34954, Feb. 20, 1981

People v. Opea
L-34954, Feb. 20, 1981
If a man and a woman deport themselves as if they were husband and wife, they
are presumed to be validly and legally married to each other and this presumption
is not rebutted by a mere denial by the man (or woman) of the fact of marriage.
(See In re Mallare, 23 SCRA 292,
Apr. 29, 1968).
(2) Common-Law Marriage
A common-law marriage is one where the man and the woman just live together
as husband and wife without getting married. In todays language, this is referred
to as a live-in relationship.
Is a common-law marriage valid in the Philippines if between foreigners, and if the
relationship began abroad?
ANSWER: It would seem that the answer is yes, provided that it is valid according
to the personal law of the parties and according to the place where the
relationship began.
People v. Ignacio
81 SCAD 138 (1997)
Appellants own admission that she was married to the victim was a confirmation
of the semper praesumitur matrimonio and the presumption that a man and a
woman so deporting themselves as husband and wife had verily acted into a
lawful contract of marriage.
Mariano Adriano v. CA
GR 124118, Mar. 27, 2000
Although in cases of common-law relations where an impediment to marry exists,
equity would dictate that property acquired by the man and woman thru their joint

People v. Ignacio
81 SCAD 138 (1997)
Mariano Adriano v. CA
GR 124118, Mar. 27, 2000

endeavor should be allocated to each of them in proportion to their respective


efforts, petitioners in the instant case have not submitted any evidence that
Vicenta actually contributed to the acquisition of the property in question.
(3) Marriage by Proxy One where the other party is merely represented by a
delegate or friend.
(4) Rules on Marriages by Proxy
(a) If performed here in the Philippines, the marriage is void because physical
presence of both parties is required under Art. 6 of the Family Code.
(b) If performed abroad, whether between Filipinos or foreigners or mixed, it would
seem that the controlling Article is Art. 26 of the Family Code. Hence, ordinarily, if
the marriage by proxy is valid as such where celebrated, it should be considered
as valid in the Philippines, without prejudice to any restrictions that may be
imposed by our Immigration Laws for purposes of immigration.
[NOTE: The marriage by proxy is deemed celebrated at the place where the
delegate or the proxy appears.].

Art. 7. Marriage may be


solemnized by:
(1) Any incumbent member of
the judiciary within the courts
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 him by
his church or religious sect and
provided that at least one of
the contracting parties belongs
to the solemnizing officers
church or religious sect;
(3) Any ship captain or airplane
chief only in the cases

(5) Effect If One Party is Not Asked


If the solemnizing officer after hearing the wife says, she was willing to take the
groom as her husband, forgot to ask the groom on the same matter, the marriage
would be valid, just the same, so long as the groom also signed the marriage
certifi cate. (Karganilla v. Familiar, C.A., 7175, 1 O.G. 345).
(1) Rule Re Ship Captain or Airplane Chief
A marriage in articulo mortis between passengers or crew members may also be
solemnized by a ship captain or by an airplane pilot not only while the ship is at
sea or the plane is
in fl ight, but also during stopovers at ports of call. (Art. 31, Family Code).
(2) Rule Re Military Commander
A military commander of a unit who is a commissioned officer, shall likewise have
authority to solemnize marriages in articulo mortis between persons within the
zone of military
operation, whether members of the armed forces or civilians. (Art. 32, Family
Code).
(3) Rule Re Consular Officials
Marriage between Filipino citizens abroad may be solemnized by a consul-general,
consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license and the
duties of the local civil registrar and of the solemnizing officer with regard to the
celebration of marriage shall be performed by said consular offi cial. (Art. 10,
Family Code).

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

Art. 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 of the
consul-general, consul or viceconsul, as the case may be, and
not elsewhere, except in cases
of marriages contracted at 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 offi cer 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. (57a)
Art. 9. A marriage license shall
be issued by the local civil
registrar of the city or
municipality where either

(4) Governors, Mayors and Ambassadors Lack Authority to Solemnize


Marriages
Under the Family Code, governors, mayors, and ambassadors are not authorized
to perform marriages. (Inclusiounius est exclusio alterius What the law does not
include, it
excludes.) A village elder cannot likewise celebrate a marriage. (See Wong Woo
Yiu v. Vivo, 13 SCRA 552).
Under the Local Government Code, however, mayors are now authorized to
perform marriages within their jurisdiction. (See Secs. 444-455, Local Government
Code).
(5) Burden of Proof
If a person seeks to impugn the validity of a marriage on the ground that the
person who solemnized it was not really authorized, such lack of authority must
be proved by the person petitioning. (De Cardenas v. Cardenas, et al., L-8218,
Dec. 15,
1955).
(1) Reason for Public Solemnization
The requirement that the marriage be done publicly is based on the premise that
the state takes an active interest in the marriage.
(2) Instances Where Public Solemnization is Not Needed
Public solemnization is needed except:
(a) Marriages in chambers of the Justice or Judge.
(b) In marriages in articulo mortis.
(c) In marriages in a remote place.
(d) When both of the parties request in writing for solemnization in some other
place. The place must be designated in a sworn statement.

(1) Where Marriage License Should Be Issued


The marriage license should be issued by the local civil registrar of the
municipality where EITHER contracting party habitually resides. (But if this
requirement as to the place of issuance is not complied with, the marriage would

contracting party habitually


resides, except in marriages
where no license is required in
accordance with Chapter 2 of
this
Title. (58a)

Art. 10. Marriages between


Filipino citizens abroad may
be solemnized by a consulgeneral, consul or vice-consul of
the Republic of the Philippines.
The issuance of the marriage
license and the duties of the
local civil registrar and
of the solemnizing officer with
regard to the celebration of
marriage shall be performed by
said consular offi cial. (75a)
Art. 11. Where a marriage
license is required, each of the
contracting parties shall file
separately a sworn application
for such license with the proper
local civil registrar which
shall specify the following:
(1) Full name of the contracting
party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how,
when and where the
previous marriage was dissolved

still be valid, provided all the other requisites are present.) The solemnizing
officer does not have to investigate whether or not the license had been properly
issued. (People v. Jansen, 54 Phil. 176).
(2) Marriages of Exceptional Character (No Marriage License is Required)
(a) In articulo mortis (Art. 27).
(b) In a remote place (Art. 28).
(c) Marriage of people who have previously cohabited for at least 5 years. (Art.
34). (Ratifi cation of marital cohabitation)
(d) Marriages between pagans or Mohammedans, who live in non-Christian
provinces, and who are married in accordance with their customs. (Art. 33).
(Suppose the parties live in non-Christian provinces but the wedding is in
Manila?)
(3) Religious Ratifi cation
Religious ratification of a valid marriage does not require a marriage license.
If Performed Abroad
Under this Rule, whenever a marriage between Filipino citizens is performed
abroad by the Filipino consular official, the provisions on marriage found under the
Family Code shall apply, i.e., as if the marriage is performed in the Philippines.
The consular official of the Philippines abroad shall discharge the duties of the
local civil registrar and of the solemnizing official.

This Article provides the data that must be included in the application for the
marriage license.

or annulled;
(6) Present residence and
citizenship;
(7) Degree of relationship of the
contracting parties;
(8) Full name, residence and
citizenship of the father;
(9) Full name, residence and
citizenship of the mother;
and
(10) Full name, residence and
citizenship of the guardian or
person having charge, in case
the contracting party has
neither father nor mother and is
under the age of twenty one
years.
The applicants, their parents or
guardians shall not be
required to exhibit their
residence certificates in any
formality
in connection with the securing
of the marriage license.
(59a
Art. 12. The local civil registrar,
upon receiving such application,
shall require the presentation of
the original birth certifi cates or,
in default thereof, the baptismal
certifi cates of the contracting
parties or copies of such
documents duly attested by the
persons having custody of the
originals. These certifi cates or
certifi ed copies of the
documents required by this
Article need not be sworn to and
shall be exempt from
the documentary stamp tax. The
signature and offi cial title of the
person issuing the certifi cate
shall be suffi cient proof

Age for Marriage


Art. 12 sets forth the rules by which the civil registrar
shall determine as to whether the parties have the required
age for marriage.

of its authenticity.
If either of the contracting
parties is unable to produce his
birth or baptismal certifi cate or
a certifi ed copy of either
because of the destruction or
loss of the original, or if it is
shown by an affi davit of such
party or of any other person
that such birth or baptismal
certifi cate has not yet been
received though the same has
been required of the person
having custody thereof at least
fi fteen days prior to the date of
the application, such party may
furnish in lieu thereof his
current residence certifi cate or
an instrument drawn
up and sworn to before the local
civil registrar concerned or any
public offi cial authorized to
administer oaths. Such
instrument shall contain the
sworn declaration of two
witnesses of lawful age, setting
forth the full name, residence
and citizenship of such
contracting party and of his or
her parents, if known, and the
place and date of birth of such
party. The nearest of kin of the
contracting parties shall be
preferred as witnesses, or, in
their default, persons of good
reputation in the province or the
locality.
The presentation of birth or
baptismal certifi cate shall not
be required if the parents of the
contracting parties appear

personally before the local civil


registrar concerned and swear
to the correctness of the lawful
age of said parties, as
stated in the application, or
when the local civil registrar
shall, by merely looking at the
applicants upon their personally
appearing before him, be
convinced that either or both of
them have the required age.
(60a)
Art. 12

Art. 13. In case either of the


contracting parties has
been previously married, the
applicant shall be required to
furnish, instead of the birth or
baptismal certifi cate required
in the last preceding article, the
death certifi cate of the
deceased
spouse or the judicial decree of
the absolute divorce,
or the judicial decree of
annulment or declaration of
nullity
of his or her previous marriage.
In case the death certifi cate
cannot be secured, the party
shall make an affi davit setting
forth this circumstance and his
or her actual civil status and
the name and date of death of
the deceased spouse. (61a)
Art. 14. In case either or both of
the contracting parties, not
having been emancipated by a
previous marriage,
are between the ages of
eighteen and twenty-one, they
shall, in addition to the
requirements of the preceding

Art. 13 Is a Substitute for Art. 12


This is when either party had been previously married in
which case the applicant or applicants if both parties had been
previously married, shall present in lieu of birth or baptismal
certifi cate, the enumerated listing in Art. 13

Without the needed CONSENT, the marriage is VOIDABLE.

articles,
exhibit to the local civil
registrar, the consent to their
marriage of their father, mother,
surviving parent or guardian, or
persons having legal charge of
them, in the order mentioned.
Such consent shall be
manifested in writing by the
interested
party, who personally appears
before the proper local civil
registrar, or in the form of an
affi davit made in the presence
of two witnesses and attested
before any offi cial authorized by
law to administer oaths. The
personal manifestation shall be
recorded in both applications for
marriage license, and
the affi davit, if one is executed
instead, shall be attached to
said applications. (61a)
Art. 15. Any contracting party
between the age of twenty one
and twenty-five shall be obliged
to ask their parents or guardian
for advice upon the intended
marriage. If they do not obtain
such advice, or if it be
unfavorable, the marriage
license shall not be issued till
after three months following
the completion of the
publication of the application
therefor. A sworn statement by
the contracting parties to the
effect that such advice has been
sought, together with the
written advice given, if any,
shall be attached to the
application for marriage license.
Should the parents or guardian

(1) Effect of Parents Refusal or If Advice is Unfavorable


If the parents refuse to give the advice and this fact is stated in a sworn statement
with the Civil Registrar, marriage would of course be still possible (Guerrero v.
Dolojan, L-4631, Feb. 26, 1952), under the conditions set forth in the Article.
The same rule applies if the advice is unfavorable. Under Art. 15, advice is
required.
(2) Effect if Parties Refuse to Obtain Parental Advice
If the parties refuse to obtain parental advice, the marriage license must not be
issued till after three months from the end of the 10-day publication. If they marry
without the license, the marriage will be null and void. (Art. 35, No. 3).

(Guerrero v. Dolojan, L-4631,


Feb. 26, 1952),

refuse to give any advice, this


fact shall be stated in the sworn
statement.
(62a)
Art. 16. In the cases where
parental consent or parental
advice is needed, the party or
parties concerned shall, in
addition to the requirements of
the preceding articles, attach a
certifi cate issued by a priest,
imam or minister authorized to
solemnize marriage under
Article 7 of this Code or a
marriage counsellor duly
accredited by the proper
government agency to the effect
that the contracting parties
have undergone marriage
counselling. Failure to attach
said certifi cate of marriage
counselling shall suspend the
issuance of the marriage license
for a period of three months
from the completion of the
publication
of the application. Issuance of
the marriage license within the
prohibited period shall subject
the issuing officer to
administrative sanctions but
shall not affect the validity
of the marriage.
Should only one of the
contracting parties need
parental consent or parental
advice, the other party must be
present
at the counselling referred to in
the preceding paragraph.
(n)
Art. 17. The local civil registrar

Marriage Counselling Now a Requirement


As a requirement, marriage counselling is implicitly done by a priest, imam or
minister, or a duly accredited marriage counselor (i.e., a psychologist or a
psychiatrist [a medical doctor]).

Required 10-Day Publication

shall prepare a notice which


shall contain the full names and
residences of the applicants
for a marriage license and other
data given in the applications.
The notice shall be posted for
ten consecutive days on a
bulletin board outside the office
of the local civil registrar
located in a conspicuous place
within the building and
accessible to the general public.
This notice shall
request all persons having
knowledge of any impediment to
the marriage to advise the local
civil registrar thereof. The
marriage license shall be issued
after the completion of the
period of publication. (63a)
Art. 18. In case of any
impediment known to the local
civil registrar or brought to his
attention, he shall note down
the particulars thereof and his
findings thereon in the
application for a marriage
license, but shall nonetheless
issue said license after the
completion of the period of
publication,
unless ordered otherwise by a
competent court at his own
instance or that of any
interested party. No filing fee
shall be
charged for the petition nor a
corresponding bond required for
the issuance of the order. (64a)
Art. 19. The local civil registrar
shall require the payment of the
fees prescribed by law or
regulations before the issuance

The required 10-day publication of application for a marriage license is done


merely by way of notice in the bulletin board (outside the offi ce of the local civil
registrar) conspicuously located and accessible to the public.

Notice to Civil Registrar of Any Impediment to Marriage


Notice made to the local civil registrar of any impedimentto the marriage shall not
prevent the issuance of the marriage license after the 10-day publication unless
otherwise ordered by a competent court upon petition of the civil registrar at his
own instance or that of any interested party.

Indigent Parties Are the Only Ones Exempt From Fees


on Issuance of Marriage License
Reason: They have no visible means of income or whose income is insufficient for
their subsistence, a fact established thru an affidavit or oath made before the

of the marriage license. No


other sum shall be
collected in the nature of a fee
or tax of any kind for the
issuance of said license. It shall,
however, be issued free of
charge to indigent parties, that
is, those who have no visible
means of income or whose
income is insufficient for their
subsistence, a fact established
by their affi davit or by their
oath before the local civil
registrar. (65a)
Art. 20. The license shall be
valid in any part of the
Philippines for a period of one
hundred twenty days from the
date of issue, and shall be
deemed automatically cancelled
at the expiration of said period
if the contracting parties have
not made use of it. The expiry
date shall be stamped in bold
characters on the face of every
license issued. (65a)
Art. 21. When either or both of
the contracting parties are
citizens of a foreign country, it
shall be necessary for them
before a marriage license can be
obtained, to submit a certificate
of legal capacity to contract
marriage, issued by their
respective diplomatic or
consular officials.

local civil registrar.

Stateless persons or refugees


from other countries shall, in
lieu of the certificate of legal
capacity herein required, submit
an affidavit stating the
circumstances showing such

(3) Diplomatic Officials


(a) Ambassador
(b) Minister plenipotentiary and envoy extraordinary
(c) Resident minister
(d) Charge daffaires (in charge of affairs)

Life of a Marriage License


Under this Rule, the life of a marriage license subsists for 120 days from date of
issue and with the expiry date stamped in bold character on the face of every
license. Note that under Art. 350 of the Revised Penal Code, any (solemnizing)
officer who solemnizes a marriage as well as the parties thereto after the license
had expired may be held criminally liable.

(1) Certifi cate of Legal Capacity Required for Foreigners


In general, capacity of foreigners to contract marriage in the Philippines is subject
to their personal law (that is, their national law, as a rule); thus, they are required
under this Article to obtain a certificate of legal capacity.
(Note that Art. 21 applies where EITHER or BOTH are citizens or subjects of a
foreign country.).
(2) Who Can Issue the Certifi cate of Legal Capacity
The certifi cate of legal capacity should be issued by the proper diplomatic or
consular offi cials.

capacity to contract marriage.


(66a)

(4) Consular Offi cials


(a) Consul-general
(b) Consul
(c) Vice-consul
(d) Consular agent

Art. 22. The marriage certificate,


in which the parties shall
declare that they take each
other as husband and wife, shall
also state:
(1) The full name, sex and age of
each contracting party;
(2) Their citizenship, religion
and habitual residence;
(3) The date and precise time of
the celebration of the marriage;
(4) That the proper marriage
license has been issued
according to law, except in
marriages provided for in
Chapter
2 of this Title;
(5) That either or both of the
contracting parties have secured
the parental consent in
appropriate cases;
(6) That either or both of the
contracting parties have
complied with the legal
requirement regarding parental
advice in appropriate cases; and
(7) That the parties have
entered into a marriage
settlements, if any, attaching a
copy thereof. (67a)

(1) The Marriage Certifi cate


This Article deals with the marriage certifi cate. It is not an essential requisite of
marriage. (Madridejo v. De Leon, 55 Phil. 1). The best documentary evidence of a
marriage is the marriage contract or the marriage certifi cate. (See Villanueva v.
Court of Appeals, 198 SCRA 472 [1991]). Thus, an oral solemnization of the
marriage is suffi cient. Failure to sign the marriage contract does NOT invalidate
the marriage. (DeLoria, et al. v. Felix, 5 O.G. 8114).
Said marriage contract being notarized, the document now carries the evidentiary
weight conferred upon it with respect to its due executive, and documents
acknowledged before a notary public have in their favor the presumption of
regulating. (Ferancullo v. Ferancullo, 509 SCRA 1 [2006]). In the instant
controversy, the penalty for maintaining an illicit relationship may either be
suspension or disbarment, depending on the circumstances of the case. (Ibid.)
Tugeda v. Trias, et al.
L-16925, Mar. 31, 1962
FACTS: The existence of a marriage was the issue involved in this case. No record
of the alleged marriage existed in the record of marriages in the municipality
where it was alleged to have been celebrated. Moreover, the solemnizing officer
allegedly failed to send a copy of the marriage certificate
Art. 22 was sought to be established by the following:
(a) The testimony of the justice of the peace who solemnized the marriage.
(b) The living together of the parties as husband and wife for 18 years.
(c) A project of partition (of property) signed by their children and the children of
one by a prior marriage stating that they are the children of the second and the
first marriages respectively of the deceased spouses.
HELD: The marriage existed, in view of the proofs presented. Incidentally, the
failure of the solemnizing officer to send a copy of the marriage certifi cate is not a
fatal defect, the certificate not being an essential requisite for marriage.
NOTE: In parricide, the best proof of relationship between appellant and the
deceased is the marriage certificate and in the absence thereof, oral evidence of
the fact of marriage may be considered. (People v. Florendo, 413 SCRA 132
[2003]).

Tugeda v. Trias, et al.


L-16925, Mar. 31, 1962

(2) The Certifi cate Distinguished from the License


The marriage certifi cate must not be confused with the marriage license, the
latter being an essential requisite of marriage.
(3) Proof of the Existence of a Marriage
The best evidence of the existence of a marriage is the marriage certifi cate but
it is not the only evidence that can be admitted to prove the existence of a
marriage. Testimony of witnesses may be admitted on this point. (U.S. v.
Memoracion, 34 Phil. 633). In fact, the declaration of one of the parties to the
marriage as well as of the people who attended the ceremony, is regarded as
competent proof of the marriage. (People v. Alday,59 O.G. 411; Balogbog v. CA,
GR 83598, Mar. 7, 1997, 80
SCAD 229). There is even the legal presumption that a man and a woman
deporting themselves as husband and wife have entered into a lawful contract of
marriage. (See Sec. 5[bb], Rule
131, Revised Rules of Court). Marriage may even be proved by such evidence as
certificates of title to land, which shows that the girl is married to the man, and by
various court decisions referring to the marriage. (Padilla v. Howard, et al., L-7098,
Apr. 22, 1955).
[NOTE: The presumption hereinabove referred to, found in the Rules of Court, may
be rebutted by evidence showing that the marriage did not actually take place.
(Fernandez v.Puatdu, L-10071, Oct. 31, 1957).].
Fernandez v. Puatdu
L-10071, Oct. 31, 1957
FACTS: A woman, Rosario Campos Fernandez, claimed to be the surviving wife of
the deceased Guillermo Puatdu. She alleged, among other things: (a) That she
contracted marriage with him on May 15, 1896 before a Catholic priest by the
name of Alfonso Garcia.
(b) That there were sponsors and guests for the wedding.
(c) That they lived together publicly as husband and wife in Spain until 1902, then
they came to the Philippines and continued their marital life in Manila, and later in
Bulacan.
(d) That in 1917, after discovering that he was unfaithful to her, she returned to
Spain.
She did not produce any marriage certifi cate, claiming that the document was
lost during the Spanish civil war. The Court, however, relied on the following
evidence to rebut the presumption of marriage:
(a) There was no entry of the marriage in the civil registry of Madrid, nor in the
records of the diocese to
which the Church alluded to, belong.

Fernandez v. Puatdu
L-10071, Oct. 31, 1957

(b) The Chancellor-Secretary of the bishopric concerned issued a certifi cation


stating that in the books for registration of licenses of priests kept in said office
from the year 1896, the name of a Father Alfonso
Garcia does not appear.
(c) In the records of the Spanish consulate in Manila, the girl petitioner was listed
in 1916 as soltera (single).
(Said record, being offi cial and over 40 years old, is prima facie evidence of the
facts stated therein.)
(d) The original certifi cates of title to real property of the deceased, issued in
1930, stated that the deceased was single.
(e) In a contract of lease executed by the deceased, he stated that he was
single.
(f) In certain public instruments in which he acknowledged certain people as his
natural children, he
stated that he was single. (Said instruments were later on confirmed in a civil case
before the CFI [now
RTC].)
HELD: The presumption of marriage has been rebutted
in view of the above-mentioned evidence.

Lim Pang v. Uy Pian


52 Phil. 571
FACTS: T made a will where he stated that W was his wife. The will was duly
probated. Is the will admissible to prove the existence of the marriage?
HELD: Yes, because prima facie (on the face of it), W can
be considered as the wife, otherwise, T would not have made
this admission against his own pecuniary interest.
People v. Cocas
(C.A.) O.G., Oct. 11, 1941, p. 3154
FACTS: In attempt to disprove the existence of a marriage, the priest who
allegedly solemnized it testifi ed that he could not remember what was said during
the wedding. He was corroborated in this by one of the parties. However, there
was a greater mass of evidence pointing to prolonged cohabitation.
HELD: The marriage was properly celebrated, and it continues to be presumed as
valid.
Art. 23. It shall be the duty of

Copies of the Marriage Certifi cate

Lim Pang v. Uy Pian


52 Phil. 571

People v. Cocas
(C.A.) O.G., Oct. 11, 1941,
p. 3154

the person solemnizing the


marriage to furnish either of the
contracting parties the original
of the marriage certifi cate
referred to in Article
6 and to send the duplicate and
triplicate copies of the certifi
cate not later than fi fteen days
after the marriage, to the local
civil registrar of the place where
the marriage was solemnized.
Proper receipts shall be issued
by the local civil registrar to the
solemnizing offi cer transmitting
copies of the marriage certifi
cate. The solemnizing offi cer
shall retain in
his fi le the quadruplicate copy
of the marriage certifi cate, the
original of the marriage license
and, in proper cases, the
affi davit of the contracting
party regarding the
solemnization of the marriage in
a place other than those
mentioned
in Article 8. (68a)
Art. 24. It shall be the duty of
the local civil registrar to
prepare the documents required
by this Title, and to administer
oaths to all interested parties
without any charge in both
cases. The documents and affi
davits filed in connection with
applications for marriage
licenses shall be exempt from
documentary stamp tax. (n)
Art. 25. The local civil registrar
concerned shall enter all
applications for marriage
licenses fi led with him in a
registry

Four copies of the marriage contract (certificate) must be


made, as follows:
(a) One for the contracting parties;
(b) Two for the local civil registrar (who must receive it within 15 days after the
celebration); and
(c) One for the person solemnizing.
[NOTE: Even if no one receives a copy, the marriage will still be valid. (Jones v.
Hortiguela, 64 Phil. 179).].

(1) Free Documents


The preparation of documents and the administration of oaths shall be done FREE.
(2) Exemption from the Documentary Stamp Tax
No documentary stamp tax is required.

Recording of Applications for the Marriage License


(a) The entries must be chronological.
(b) Pertinent data must be recorded.
Republic v. CA and Angelina M. Castro
GR 103047, Sep. 12, 1994

book strictly in the order in


which the same are received. He
shall record in said book the
names of the applicants, the
date on which the marriage
license was issued, and such
other data as may be necessary.
(n)

55 SCAD 157
FACTS: Angelina M. Castro seeks a judicial declaration of nullity of her marriage to
Edwin F. Cardenas. The marriage was celebrated without the knowledge of
Castros parents. Moreover, thru her lawyers effort, discovered was the fact that
there was no marriage license issued to Cardenas prior
to the celebration of the marriage. As proof, Castro offered as evidence a
certification from the Civil Register that after a diligent search, no record or entry
of a specified tenor is found to exist in the records of her offi ce. Said written
statement was signed by the Senior Civil Registry Offi cer (Cenona D. Quintos)
who had custody of the official record.
ISSUE: Whether or not the documentary and testimonial evidence presented by
private respondent are sufficient to establish that no marriage license was issued
by the Civil Registrar prior to the celebration of the marriage.
HELD: The certification of the local civil registrar of due search and inability to find
a record or entry to the effect that no marriage license has been issued to the
parties is adequate to prove its non-issuance.
As custodian of public documents, a civil registrar is a public officer charged with
the duty, inter alia, of maintaining a register book where he is required to enter all
applications for marriage licenses, including the names of the appellants, the date
the marriage license was issued, and such other relevant
data. The certifi cation of due search and inability to find issued by the local civil
registrar enjoys probative value, she being the offi cer charged under the law to
keep a record of all data relative to the issuance of a marriage license.
Unaccompanied by any circumstance of suspicion and pursuant to
Sec. 29, Rule 132 of the Rules of Court, a certifi cate of due search and inability
to fi nd suffi ciently proved that his office did not issue a marriage license to the
contracting parties. As already adverted to, records show that the marriage
between Castro and Cardenas was initially unknown to the parents of
the former. Such marriage is one of those commonly known as a secret
marriage a legally, non-existent phrase but ordinarily used to refer to a civil
marriage celebrated without the knowledge of the relatives and/or friends of
either or both of the contracting parties. It is noteworthy to mention that the fi
nding of the appellate court that the marriage between the contracting parties is
null and void for lack of a marriage license does not discount the fact that indeed,
a spurious marriage license, purporting
to be issued by the civil registrar, may have been presented by Cardenas to the
solemnizing officer. Be it remembered that at the time the subject marriage was
solemnized, the law governing marital relations was the Civil Code, providing that
no marriage shall be solemnized without a marriage license first
issued by a local civil registrar. Being one of the essential requisites of a valid
marriage, absence of a license would render the marriage void ab initio.
NOTA BENE: A marriage though void still needs a judicial declaration of such fact

under the Family Code even for purposes other than remarriage. (Domingo v. CA,
44 SCAD
955, GR 104818, Sep. 17, 1993).
Art. 26. All marriages
solemnized outside the
Philippines in accordance with
the laws in force in the country
where they were solemnized,
and valid there as such, shall
also be valid in this country,
except those prohibited under
Articles
35(1), (4), (5) and (6), 36, 37,
and 38. (71a)
Where a marriage between a
Filipino citizen and a foreigner is
validly celebrated and a divorce
is thereafter validly obtained
abroad by the alien spouse
capacitating him or her to
remarry, the Filipino spouse
shall likewise have capacity to
remarry under Philippine law.
(A) (As Amended by E.O.
No. 227, dated July 17, 1987)

(1) General Rule for Validity of Marriages Celebrated Abroad


If valid where celebrated, it is also valid here. (This is the doctrine of lex loci
celebrationis, the law of the place of celebration.)
(2) The Exceptions
Those prohibited under Arts. 35 (1, 4, 5 and 6), 36, 37 and 38 of the Family Code.
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;
xxxxxxxxx
(4) Those bigamous or polygamous marriages not falling 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.
Art. 36. A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital obligations
of marriage, shall likewise be void even if such incapacity becomes manifest only
after its solemnization. (As amended by Executive Order 227,
dated July 17, 1987)
Art. 37. Marriages between the following are incestuous and void from the
beginning, whether the relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half-blood.
Art. 38. The following marriages shall be void from the beginning for reasons of
public policy:
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents 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 parent and the 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 adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that

other persons spouse, or his or her own spouse.


(3) Rule for Void or Voidable Foreign Marriages
Art. 26 is framed in the affirmative if valid there as such. Now then, suppose the
marriage is VOID in the place of celebration, should it also be considered as void
in the Philippines?
ANSWER: The general rule is YES. If VOID where celebrated, the marriage shall be
considered VOID in the Philippines. Similarly, if VOIDABLE where celebrated, the marriage would also be
VOIDABLE here in the Philippines, without prejudice of course to the exceptions
under Art. 26.
(4) Requirements to Prove a Foreign Marriage
(a) The existence of the pertinent provision of the foreign marriage law.
(b) The celebration or performance of the marriage in accordance with said law.
(Ching Huat v. Co Heong, 4 O.G. 1214; Adong v. Cheong Seng Gee, 43 Phil. 43;
Lao andLao v. Dee Tim, 45 Phil. 739; Board of Commissioner of Immigration and
Deportation v. De La Rosa, 197 SCRA853 [1991]).
Needless to say, the foreign law is not of judicial notice, and it must therefore be
proved as a fact. Hence, if there is no competent testimony on what said law is,
the court cannot be convinced morally of the existence of such a marriage.
(Adong v. Cheong Seng Gee, 43 Phil. 43).
(5) Problem Involving Polygamous Marriages
H, a citizen of Turkey, is validly married there simultaneously to three wives, by
each of whom he has children. Will the marriage be considered as valid in the
Philippines?
ANSWER: For the purpose of cohabitation in the Philippines, only the fi rst
marriage should be considered as valid; but for the purpose of considering the
legitimacy of children, the marriage are all to be considered as VALID. In case of
doubt, we must resolve same in favor of the legitimacy of children.
Thus, it has been said that a marriage, from this viewpoint, may be considered
VOID in one respect, and VALID in another respect.
(6) Bar
If an Indonesian brings to the Philippines two wives to whom he validly married in
Indonesia, should both marriages be likewise recognized here as, equally valid?
ANSWER: Yes, under the Muslim Code.
(7) Foreign Divorce Obtained by a Foreigner Married to a Filipino

The purpose of the second paragraph of the Article is to avoid unfairness to the
Filipino spouse. Note that the rule does not apply if both parties are Filipinos.
(8) Effect of Divorce of a Marriage Between a Filipino Citizen and a
Foreigner
If validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under Philippine law. (Art. 26,
par. 2).
NOTE: If the foreign divorce is obtained by the Filipino spouse, the divorce is VOID.

(9) Case Imelda Manalaysay Pilapil v. Hon. Ibay-Somera,


Hon. Victor, and Erich Ekkehard Geiling
GR 80116, June 30, 1989
2MARRIAGES
EXEMPT
FROM THE
LICENSE
REQUIREME
NT

Rule Under the Old Law


Under the old marriage law (i.e., before the Civil Code), there were two more
marriages of exceptional character that were allowed, namely:
(a) Marriage during a religious revival, provided, that the parties had already been
living together as husband and wife for two years.
(b) Marriage between new converts to the Christian religion, provided they were
baptized not more than
fi ve years prior to the marriage ceremony. (Secs. 22,24, Act 3613).

Art. 27. In case either or both of


the contracting parties are at
the point of death, the marriage
may be solemnized without the
necessity of a marriage license
and shall remain valid even if
the ailing party subsequently
survives. (72a)
Art. 28. If the residence of either
party is so located that
there is no means of

[NOTE: These two kinds of marriages were eliminated in the Civil Code. Said
marriages and some others were also eliminated in the Family Code.].
When No New Marriage Ceremony Is Needed
A marriage remains valid even without need of a new
marriage ceremony if the ailing party survives. (See Soriano
v. Felix, L-9005, June 20, 1958).

(1) Rule If Both Parties are at the Point of Death


There can be a valid marriage in articulo mortis even if both parties are at the
point of death, provided, of course, that all the essential requisites are present. It

) Case Imelda Manalaysay


Pilapil v. Hon. IbaySomera,
Hon. Victor, and Erich
Ekkehard Geiling
GR 80116, June 30, 1989

transportation to enable such


party to
appear personally before the
local civil registrar, the marriage
may be solemnized without the
necessity of a marriage
license. (72a)

is clear that the parties concerned must be conscious of what they are doing.
(2) Signature of Dying Party
In a marriage in articulo mortis, while it is advisable that a witness to the marriage
should sign the dying partys signature if the latter be physically unable to do so,
still if upon order of the solemnizing offi cial, another person should so sign, the
marriage is still valid. The law as much as possible intends to give legal effect to a
marriage. As a matter of fact, no particular form for a marriage celebration is
prescribed.
(Cruz v. Catandes, C.A., 39 O.G. No. 18, p. 324).
(3) Who Can Perform Marriages in Articulo Mortis
It is erroneous to say that only priests, ship captains, airplane chiefs or
commanding offi cers (in the particular instances enumerated in Arts. 31 and 32)
are the ones who can perform a marriage in articulo mortis. A justice, a judge,
etc., can also do so within their respective jurisdictions.

Art. 29. In the cases provided for


in the two preceding articles,
the solemnizing offi cer shall
state in an affidavit executed
before the local civil registrar or
any other person
legally authorized to administer
oaths that the marriage was
performed in articulo mortis or
that the residence of either
party, specifying the barrio or
barangay, is so located that
there is no means of
transportation to enable such
party to
appear personally before the
local civil registrar and that the
officer took the necessary steps
to ascertain the ages and

(4) Danger of Death Distinguished from Point of Death


If a soldier is about to go to war, he may be in danger of death, but not at the
point of death; hence, a marriage in articulo mortis would not be applicable to
him.
(5) Marriage in a Remote Place
The marriage in Art. 28 is a marriage in a remote place.There is no prescribed
minimum or maximum distance, unlike that in the Civil Code.
Purpose of the Affi davit
The affi davit is for the purpose of proving the basis for exemption from the
marriage license. Even if there is failure on the part of the solemnizing offi cer to
execute the necessary affi davit, such irregularity will not invalidate the marriage
for the affi davit is not being required of the parties. (See Soriano
v. Felix, L-9005, June 20, 1958).

relationship of the contracting


parties and the absence of a
legal impediment to the
marriage. (72a)
Art. 30. The original of the
affidavit required in the last
preceding article, together with
a legible copy of the marriage
contract, shall be sent by the
person solemnizing the marriage
to the local civil registrar of the
municipality where
it was performed within the
period of thirty days after the
performance of the marriage.
(73a)
Art. 31. A marriage in articulo
mortis between passengers or
crew members may also be
solemnized by a ship captain or
by an airplane pilot not only
while the ship is
at sea or the plane is in fl ight,
but also during stopovers at
ports of call. (74a)
Art. 32. A military commander of
a unit who is a commissioned
officer, shall likewise have
authority to solemnize
marriages in articulo mortis
between persons within the
zone of military operation,
whether members of the armed
forces
or civilians. (74a)
Art. 33. Marriages among
Muslims or among members of
the ethnic cultural communities
may be performed validly
without the necessity of a
marriage license, provided that
they are solemnized in

Civil Registrar Is Given the Original of the Affidavit


This is so for the simple fact that he keeps the records of marriages taking place.
Thus, the local civil registrar is given the original of the affidavit which takes the
place of a marriage license.
Again, failure to comply with said requirement does not invalidate the marriage.

The marriage may be solemnized during stopovers.

(1) Special Cases of Marriages in Articulo Mortis


(a) The people referred to in Arts. 31 and 32 can celebrate the marriage only if it is
in articulo mortis.
(b) Of course, other people, like a judge or a consul, can perform a marriage in
articulo mortis.
(2) Re: Military Commander
(a) must be a commissioned officer
(b) marriage may be between civilians, also if in articulo mortis.
(1) No Judicial Notice
No judicial notice can be taken of Mohammedan rites and customs for marriage.
They must be alleged and proved in court. (People v. Dumpo, 62 Phil. 246).
(2) Consistency With the Constitution
Art. 33 is but consistent with the constitutional provision which provides that the
State shall recognize, respect, and protect the rights of indigenous cultural

accordance with their customs,


rites
or practices. (78a)
Art. 34. No license shall be
necessary for the marriage of a
man and a woman who have
lived together as husband and
wife for at least five years and
without any legal impediment to
marry each other. The
contracting parties shall state
the foregoing facts in an
affidavit before any person
authorized by law to administer
oaths. The solemnizing officer
shall also state under oath that
he ascertained the qualifications
of the contracting parties and
found no legal impediment to
the marriage. (76a)

communities to preserve and develop their cultures, traditions, and institutions. It


shall consider these rights in the formulation of national plans and
policies. (Art. XIV, Sec. 17, 1987 Phil. Const.).
(1) Ratifi cation of Marital Cohabitation Requisites
(a) The contracting parties must have lived together as husband and wife for at
least five years before the marriage they are entering into.
(b) No legal impediment of any kind must exist between them.
For example, they must not be fi rst cousins, or stepbrother and stepsister.
(c) Requirements (a), (b) and (c) must be stated in an affidavit before any person
authorized by law to administer oaths.
(d) The necessary affi davit of the person solemnizing the marriage.
(The marriage is sometimes referred to as the ratification of marital
cohabitation.)
(2) Illustrative Problems
(a) A 23-year-old man married a 21-year-old girl without a marriage license,
but previous to the marriage they had been living together for three years. Is the
marriage valid or void?
ANSWER: VOID, for they had not lived together for at least five years.
(b) A man 30 years old has been living for five years as the common-law
husband of a girl who is now 17 years old. Do you believe that they can get
validly married even without a marriage license?
ANSWER: No, for the girl is still a minor, and therefore
cannot as yet marry.
(3) Effect of the New Majority Age of 18
Although A and B were merely 18 years old, they swore to an affi davit stating
they were of legal age. Previously, they had been living together for more than fi
ve years. If they marry without a marriage license on the strength of such affi
davit, the marriage should be considered as VALID because the age
of majority is now 18.
(4) Reason for the Article
The publicity attending the marriage license may discourage such persons from
legalizing their status. (Report of the Code Com., p. 80).

(5) Case
Tomasa Vda. De Jacob v. CA
GR 135216, Aug. 19, 1999

FACTS: Respondent Pedro Pilapil argues that the marriage was void because the
parties had no marriage license.
HELD: This argument is misplaced because it has been established that Dr. Jacob
and petitioner lived together as husband and wife for at least 5 years. An affi davit
to this effect was executed by Dr. Jacob and petitioner. Clearly then, the marriage
was exceptional in character and did not require a marriage license.
INTRODUCTORY COMMENT:
(1) Distinctions Between a Void and a Voidable Marriage

3-VOID
AND
VOIDABLE
MARRIAG
ES

VOID
-Can never be ratified
-Always void
-Can be attacked directly or
collaterally.
-There is no conjugal partnership
(Only a co-ownership).

VOIDABLE
-Can generally ratified by free
cohabitation
- Valid until annulled.
-Cannot be assailed collaterally; there
must be
a direct proceeding.
-There is a conjugal partnership.

(2) Two Kinds of Impediments in Marriages


(a) Diriment impediments They make the marriage VOID.
Examples:
1) Close blood relationship
2) Prior existing marriage
(b) Prohibitive impediments They do not affect the validityof the
marriage, but criminal prosecution may follow.
(3) Another Classifi cation of the Impediments
( a) Absolute Here the person cannot marry at all.
Example: When one is below the required age of 18.
(b) Relative Here the prohibition is only with respect to certain persons.
Example: A brother cannot marry his sister. (See Bowyer,Modern
Civil Code, pp. 44-45).
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;

Void Marriages Enumerated


Set forth under Art. 35 are the void marriages found in Arts. 26, 27, 38, 44, and
53.
NOTA BENE: RA 6955 declares unlawful the practice of matching Filipino women
for marriage to foreign nationals on a mail-order basis and other similar practices,
including the advertisement, publication, printing or distribution of brochures,

(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 offi cer had the
legal authority to do so;
(3) Those solemnized without a
license, except those covered by
the preceding Chapter;
(4) Those bigamous or
polygamous marriages not
falling 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.
Art. 36. A marriage contracted
by any party who, at the time of
the celebration, was
psychologically incapacitated to
comply with the essential
marital obligations of marriage,
shall likewise be void even if
such incapacity becomes
manifest only after its
solemnization. (n) (As Amended
by E.O. No.
227, dated July 17, 1987)

fliers, and other propaganda materials in furtherance


thereof.

(1) Psychological Incapacity As a Ground to Render the Marriage Void


The psychological incapacity to comply with the essential marital obligations of
marriage is a ground that will render the marriage void. This incapacity need not
necessarily be manifested before or during the marriage although it is a basic
requirement that the psychological defect be existing during the
marriage. Thus, a marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its
solemnization. (Art. 36, as amended by EO 227).
[N.B.: Essential marital obligations are set forth under Art. 68 which provides that
the husband and wife are obliged to live together, observe mutual love, respect
and fidelity, and render mutual help and support.]
(2) The Concept of Psychological Incapacity
Psychological incapacity is the condition of a person who does not have the
mind, will, and heart for the performance of marriage obligations. Said incapacity
must be a lasting condition, i.e., the signs are clear that the subject will not be rid
of his incapacity, considering the peculiar socio-cultural milieu
of his marriage, its actual situation, and the concrete person of his spouse.
However, the incapacity must already be a con- dition in the subject at the time of
the wedding, although its manifestation or detection would occur later. (Dr.
Gerardo Ty Veloso, Questions and Answers on Psychological Incapacity as

Chi Ming Tsoi v. CA and


Gina La-Tsoi
GR 119190, Jan. 16, 1997
78 SCAD 57
One of the essential marital
obligations under the Family
Code is to procreate children
based on the universal
principle that procreation of
children thru sexual
cooperation is the basic
end of marriage. Constant
non-fulfi llment of this
obligation will fi nally destroy
the integrity, or wholeness of
the marriage.
The senseless and protracted
refusal of one of the parties of
sexual cooperation for the
procreation of children is
equivalent to psychological
incapacity. In this case, there
was no sexual contact

Ground for Marriage Annulment Under Article 36 of the Family Code, 1988, pp. 1325).
Under the Family Code, more specifi cally, in its Article 36, A marriage contracted
by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only after its
solemnization. The inclusion in the Family Code of psychological incapacity had
its bearings in the Canon Law Code. Thus, Canon 1095, paragraph 3, reads: They
are incapable of contracting marriage, who are not capable of assuming the
essential obligations of matrimony due to causes of a psychological nature. In
other words, psychological incapacity is now accepted in civil law as ground for
civil
marriage annulment. Of course, it has already been for years favored in the
annulment of Catholic
religion marriage. (Veloso, supra., p. 42).
Observe that if a marriage can be declared void by the church (such as the
Catholic Church) on the ground of psychological incapacity, the same ground
may be given as cause for cancellation of a marriage in our civil courts without the
necessity of prior church cancellation.
Please note CANCELLATION of the marriage, not legal separation, and said
cancellation will
allow either or both parties to get married again to some other persons.
Under church laws, examples of psychological incapacity will include, inter alia:
a wrong concept of marital vows and marital infidelity, adamant refusal to give
support, unbearable jealousy on the part of one party, indolence, extremely low
intelligence, criminality (or the state of a person consistently
getting into trouble with the law), sadism, epilepsy, habitual alcoholism, drug
addiction, compulsive gambling, homosexuality in men or lesbianism in women,
satyriasis in men or nymphomania in women. And even if these causes should
manifest themselves long after the wedding as already adverted to, said
causes are considered to be POTENTIALLY existing already at the time of the
celebration of the marriage.
Surely, this is actual absolute divorce, although given another name. To quote the
words of Dr. Veloso: Isnt psychological incapacity a ground for divorce? It should
be if divorce were allowed here. In countries permitting it, psychological incapacity
could go under different names, such as mental cruelty or outright insanity. The
difference between annulment and divorce is real, but they produce the same
result, namely, freedom to marry again. Freedom is what people look for,

between the parties since


their marriage on May 22,
1988 up to Mar. 15, 1989 or
for almost a year. Likewise,
either spouse may fi le the
action to declare the marriage
void, even the psychologically
incapacitated.

whatever the theoretical


scaffolding leading to it. (Veloso, supra, pp. 36-37).
Anent the non-existence of absolute divorce, it is THEORETICALLY correct to say
that we have NO divorce law at present (except insofar as Muslim divorces are
concerned). But the startling TRUTH is that under Art. 36 of the new Family Code
(Executive Order 209, as amended by EO 227, dated July
17, 1987), there seems to be a basis for the conclusion that we now have a
semblance of absolute divorce here in the Philippines.
Note that for marriages celebrated on or after Aug. 3, 1988 (date of effectivity of
the Family Code), the period within which to fi le the action does NOT prescribe,
i.e., the action can
be brought before our civil courts at ANYTIME. Likewise, there is no prescription for
marriages entered into before said date. (See Sec. 1, RA 8533, dated Feb. 23,
1998).
NOTE: Psychological incapacity DOES NOT refer to mental incapacity tantamount
to insanity (which merely renders the marriage voidable).

(3) The Existence of Psychological Incapacity Depends on the Facts of


the Case
Amy Perez-Ferraris v. Brix Ferraris
495 SCRA 396 (2006)
ISSUE: Whether or not psychological incapacity exists in a given case calling for
annulment of marriage depends crucially, more than in any field of the law, on
the facts of the case.
HELD: Yes. Said the Supreme Court, thus:
1. The term psychological incapacity to be a ground for the nullity of marriage
under Art. 36 of the Family Code, refers to a serious psychological illness affecting
a party even before the celebration of the
marriage; and
2. A husbands alleged mixed personality disorder, the leaving-the-house
attitude whenever the spouses quarreled, the violent tendencies during epileptic
attacks, the sexual infi delity, the abandonment and lack of support, and, his
preference to spend more time with his band mates than his family, are not
rooted on some debilitating psychological condition but a mere refusal or

unwillingness to assume the


essential obligations of marriage. It is not enough to prove that the parties failed
to meet their responsibilities and duties as married persons; it is essential that
they must be shown to be incapable of doing so, due to some psychological, not
physical, illness.
QUERY
Is an unsatisfactory marriage considered a null and void marriage?
Ans.: No, it is not. (Perez-Ferraris v. Ferraris, 495 SCRA396 [2006]).
ANOTHER QUERY
Is Art. 36 of the Family Code dealing with psychological incapacity the same as
that of divorce?
ANSWER: No. Said Art. (36) should not be confused with a divorce law that cuts
the marital bond at the time, the causes therefore manifest themselves, and
neither is it to be equated with legal separation, in which the grounds need not be
rooted in psychological incapacity but on physical violence, moral
pressure, moral corruption, civil interdiction, drug addiction, habitual alcoholism,
sexual infi delity, abandonment, and the like. (Perez-Ferraris v. Ferraris, supra).
(4) Concept of Psychological Incapacity As Ground For Nullity of
Marriage Is Novel In the Body of Philippine Laws
This is so, altho mental incapacity has long been recognized as a ground for the
dissolution of a marriage. (Antonio v. Reyes, 484 SCRA 353 [2006]).
Several reasons have been adduced by the Philippine Supreme Court, in arriving
at this conclusion, thus:
1. Jurisprudence has recognized that psychological incapacity is a malady so grave
and permanent as
to deprive one of awareness of the duties and responsibilities of the matrimonial
bond one is about
to assume (Ibid.);
2. Given the avowed State interest in promoting marriage as the foundation of the
nation, there is
a corresponding interest for the State to defend against marriages, ill-equipped to
promote family
life (Ibid.);
3. The requirement provided in the Molina case for the Solicitor General to issue a
certifi cation stating his reasons for his agreement or opposition to the petition for
annulment of marriage has been dispensed
with following the implementation of AM 02-11-10-SC, or the Rule on Declaration
of Absolute Nullity
of Void Marriages and [Annulment of Voidable Marriages]
(Ibid.);

4. The root causes of respondents pyschological incapacity has been medically or


clinically-identifi ed and proven by experts as perennially telling lies, fabricating
ridiculous stories and inventing presonalities
and situations, of writing letters to petitioner using fictitious names, and of lying
about her actual occupation, income, educational attainment and family
background inter alia (Ibid.);
5. The Supreme Court has already held in Marcos v. Marcos, 343 SCRA 755 (2000),
that personal examination of the subject by the physician is not incapacitated.
6. A person unable to distinguish between fantasy and reality would similarly be
unable to comprehend
the legal nature of the marital bond, much less its psychic meaning, and the
corresponding obligations
attached to marriage, including parenting (Antonio v. Reyes, op. cit.); and
7. The psychological incapacity must be shown to be medically or clinically
permanent or incurable. The
requirement that psychological incapacity must be shown to be medically or
clinically permanent or
incurable is one that necessarily cannot be divined without expert opinion. (Ibid.)
Art. 36 of the Family Code is Not to be Confused with aDivorce Law

Art. 37. Marriages between the


following are incestuous and
void from the beginning,
whether the relationship
between the parties be
legitimate or illegitimate:
(1) Between ascendants and
descendants of any degree; and
(2) Between brothers and
sisters, whether of the full
or half-blood. (81a)
Art. 38. The following marriages
shall be void from the
beginning for reasons of public
policy:

Art. 36 of the Family Code is NOT TO BE CONFUSED WITH A DIVORCE LAW that
cuts the material bond at the time the causes therefore manifest themselves it
refers to a serious psychological illness
afflicting a party even before the celebration of the marriage.
How Degrees of Generation Are Computed
(a) In the direct line, count ALL who are included, then minus one. Herein, a
granddaughter is two degrees away from the grandfather (GF-F GD=3-1=2
degrees).
(b) In the collateral line go up to the nearest common ancestor, then go down
minus one. (Hence, brothers are 2 degrees apart [13,-F-B2 = 3-1=2].)

(1) Other Void Marriages


(a) Marriages in a play, drama, or movie.
(b) Marriages between two boys and two girls.
(c) Marriages in jest.

(1) Between collateral blood


relatives, whether legitimate
or illegitimate, up to the fourth
civil degree;
(2) Between step-parents 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 parent
and the 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 adopted children of
the same adopter;
and
(9) Between parties where one,
with the intention to
marry the other, killed that
other persons spouse, or his or
her own spouse. (82a)

(d) Common law marriages.

(2) When Second Marriage is NOT Bigamous


People v. De Lara
CA, 51 O.G. 4079
FACTS: A married man contracted a second marriage on Aug. 18, 1951, but the
marriage license was issued only on Aug. 19, 1951, or one day following. He was
prosecuted for bigamy.
HELD: He is not guilty, because the second marriage by itself was null and void.
The subsequent issuance of the license does not validate the void marriage. Had
the license been issued prior to the celebration of the second marriage, said
second marriage would have been valid were it not for the existence
of the fi rst marriage. In such a case, he would have been guilty of bigamy.
(3) Liability of Solemnizer
Negre v. Rivera
Adm. Matter No. 343-MJ
June 22, 1976
If a Judge signs a marriage contract before the marriage license is obtained (and
then postdates the marriage contract) on the request of the mother of the bride
(who had been raped), he can be said to have acted imprudently, and should be
admonished.
(4) Bigamous Marriage
Example:
A girl married a man who, unknown to her, was already married to another, who
was still alive. Is the marriage valid or void?
ANSWER: The marriage is VOID and BIGAMOUS, the good faith of the girl being
immaterial.
(5) Incestuous Marriage
Examples: A person cannot marry his sister, or his grandmother. Reason for the
law: Contrary to public policy.
(6) Stepbrothers, Etc.
Example:
A woman with a child G got married to a man with a child, B. May G and B get
validly married to each other?
ANSWER: Yes, because although they are considered as stepbrother and stepsister
of each other, still such a marriage, while prohibited under the Civil Code, is now

allowed under he Family Code.


Example:
M marries W, who has a daughter D. When W dies, may M marry D?
ANSWER: No, because he is her stepfather.
Question:
G marries B. May Gs mother marry Bs father?
ANSWER: Yes, because the law provides no impediment for them, assuming that
all other requisites are present.
(7) Effect of Adoption
(a) M adopts G. They cannot marry.
(b) M adopts B, a boy. Later, M marries W. Subsequently, Mdies. May B marry W?
ANSWER: No, because the adopted child (B) cannot marry the surviving spouse of
the adopter (M).
(c) M adopts B, a boy. Later, B marries G. Subsequently, Bdies. May M marry G?
ANSWER: No, because the adopter (M) cannot marry the surviving spouse of the
adopted child (B).
(8) Query
H and W are validly married. Later, W commits adultery with P. W and P are
convicted. Later, after prison, if H is already dead, may W marry P?
ANSWER: Yes, for there is no prohibition under the law.

Art. 39. The action or defence


for the declaration of absolute
nullity of a marriage shall not
prescribe. (As amended
by RA 8533, dated Feb. 23,
1998)
Art. 40. The absolute nullity of a
previous marriage may be
invoked for purposes of
marriage on the basis solely of a
final judgment declaring such
previous marriage void. (n)

(9) Rule for Roman Catholic Priests


May a Roman Catholic priest get married?
ANSWER: Yes, under the civil law, for his being a priest is not, under our law, a
disqualification. Thus, it is legally possible for such a priest to have a legitimate
child.
Self-explanatory
Wiegel v. Sempio-Diy
143 SCRA 499
There is need to declare a void marriage as void or invalid.

(1) What the Article Provides


A void marriage must fi rst be declared void for purposes of remarriage.
(2) What the Clause On the Basis Solely of a Final Judgment Declaring
Such Marriage Void Denotes
Domingo v. CA

GR 104818, Sep. 17, 1993


44 SCAD 955
The Family Code has clearly provided the effects of the declaration of nullity of
marriage. For one, there is necessity for a judicial declaration of absolute nullity of
a prior subsisting marriage before contracting another. The clause on the basis
solely of a fi nal judgment declaring such marriage void in Art. 40 of the Code
denotes that such fi nal judgment declaring the previous marriage void need not
be obtained only for purposes of remarriage.
(3) Applicability to Remarriages Entered Into After Effectivity
of Family Code
Lupo Almodiel Atienza v. Judge
Francisco F. Brillantes, Jr.
AM MTJ-92-706, Mar. 29, 1995
60 SCAD 119
Under the Family Code, there must be a judicial declaration of the nullity of a
previous marriage before a party thereto can enter into a second marriage. Thus,
Art. 40 of the Code is applicable to remarriages
entered into after the effectivity of the Family Code on Aug. 3, 1988 regardless of
the date of the fi rst marriage. Besides, under Art. 256 of the Code, said Article is
given retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws. This is
particularly true with Art. 40, which is a rule of procedure.
(4) Void Marriage Still Needs Judicial Declaration
Apiag v. Cantero
79 SCAD 327 (1997)
Now, per current jurisprudence, a marriage though void still needs a judicial
declaration of such fact before any party thereto can marry again; otherwise,
the second marriage will also be void. This was expressly provided for under Art.
40 of the Family Code.
Art. 41. A marriage contracted by
(1) Query
any person during the subsistence
H and W were Filipinos validly married in
of a previous marriage shall be null
the Philippines. Later H and W went to
and void, unless before the
America, and obtained a divorce
celebration of the subsequent
considered valid in Reno, the ground
marriage, the prior spouse had been being mental cruelty. Subsequently
absent for four consecutive years
H married S, a Hollywood actress, the
and the spouse present had a wellmarriage being performed in California,
founded belief that the
where the marriage was considered as
absent spouse was already dead. In
valid. Later, H and S came to the
case of disappearance where there
Philippines. Is the marriage valid, and
is danger of death under the
can H be successfully prosecuted in the

circumstances set forth in the


provisions of Article 391 of the Civil
Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the
subsequent marriage under the
preceding paragraph, the spouse
present must institute a summary
proceeding as provided in this Code
for the declaration of presumptive
death of the absentee, without
prejudice to the effect of
reappearance of the absent spouse.
(83a)

Philippines for the crime of bigamy?


ANSWER:
a) The marriage is void, it being
considered bigamous. The divorce is not
recognized in the Philippines.
b) But the husband cannot be convicted
for the crime of bigamy, for the crime, if
any was committed, took place outside
the territorial jurisdiction of the
Philippines.
(2) Judicial Declaration of
Presumptive Death
(a) To validly get married for the second
time in case the first spouse has been
absent for more than seven years, is a
judicial declaration of said presumptive
death required?

ANSWER:
1) In the case of Jones v. Hortinguela, 64
Phil. 179, it was held that for the purpose
of the civil marriage
law, it is not necessary for the absent
spouse to be declared an absentee, and
that the only purpose of
the declaration of absence is for the
proper administration of the estate of
the absentee. Hence, in that
case, it was held that for the celebration
of a second valid marriage, all that was
necessary was that the
absent spouse has been unheard from
for seven consecutive years at the time
of the second marriage.
If this is so, then the second marriage is
valid and lawful.
[NOTE: Under the Family Code, only a
period of 4 years or 2 years as the case
may be, is required.]
2) However, it would seem from the

wording of Art. 349 of the Revised Penal


Code that the present spouse must f rst
ask for a declaration of presumptive
death of the absent spouse in order that
the present spouse may not be guilty of
bigamy.
3) And yet, in the case of In Re Szatraw,
81 Phil. 461,the Supreme Court declared
that unless the case
involved the distribution of property, a
declaration of presumptive death will not
be given by the court
because:
a) Such a presumption is already made
in the law.
b) Such a judgment can never be fi nal.
(3) Judicial Declaration of Absence
For the purposes of the civil marriage
law, it is not even necessary to have the
spouse judicially declared an absentee.
And even when such declaration is
made, the period of seven years must be
counted, not from the judicial decree,
but from the time the absent person was
last heard from. (Jones v. Hortiguela, 64
Phil. 179).
(4) Issuance of Marriage License to
a Widow
(a) The purpose is to prevent doubtful
paternity. (People v.Rosal, 49 Phil. 504).
(b) Art. 351 of the Revised Penal Code
says: Premature marriages.
Any widow who shall marry within three
hundred and one days from the date of
the death of her husband, or before
having delivered if she shall have been
pregnant at the time of the death, shall
be punished by arresto mayor and fi ned
not exceeding P500.
(c) If a widow somehow gets a marriage

license within the period prohibited and


she gets married, it is believed that the
marriage would still be valid without
prejudice to criminal liability. (See State
v. Stevenson, 11 La. 777).
(d) The prohibition or impediment in this
Article should be considered merely a
prohibitive impediment and not a
diriment impediment.
(5) Problems
(a) A wife was legally separated from her
husband. Before 300days had expired,
she married another. Is the marriage
valid?
ANSWER: No. Such a marriage would
indeed be bigamous as her legal
separation did not dissolve the
matrimonial bond of the fi rst marriage.
(b) If a womans marriage is annulled,
may she be issued a marriage license
without waiting for the period of 300
days?
ANSWER: No, unless in the meantime
she has given birth to a child or unless
the first marriage had been annulled on
the ground of impotence. Although Art.
84 speaks merely of a widow, it is
believed that the same principle applies.
(6) Effect of Sterility
People v. Masinsin
(CA) GR 9157-R, June 4, 1953
H and W were validly married, but H was
sterile. Later, H died. Without waiting for
300 days, W got married again. Is W
criminally liable?
ANSWER: No, for the question of doubtful
paternity does not enter the picture, the
dead husband having been proved to be
sterile.

Art. 42. The subsequent


marriage referred to in the
preceding Article shall be
automatically terminated by the
recording of the affi davit of
reappearance of the absent
spouse, unless there is a
judgment annulling the previous
marriage or declaring it void ab
initio.
A sworn statement of the fact
and circumstances of
reappearance shall be recorded
in the civil registry of the
residence of the parties to the
subsequent marriage at the
instance of any interested
person, with due notice to the
spouses of the subsequent
marriage and without prejudice
to the fact of reappearance
being judicially determined in
case such fact is disputed. (n)
Art. 43. The termination of the
subsequent marriage referred to
in the preceding Article shall
produce the following
effects:
(1) The children of the
subsequent marriage conceived
prior to its termination shall be
considered legitimate and their
custody and support in case of
dispute shall be decided
by the court in a proper
proceeding;
(2) The absolute community of
property or the conjugal
partnership, as the case may be,
shall be dissolved and
liquidated, but if either spouse
contracted said marriage in
bad faith, his or her share of the

Elements Contained in this Rule


There are two (2) elements contained under Art. 42, to wit: (1) the subsequent
marriage under Art. 41; and (2) a sworn statement of the fact and circumstances
of reappearance.

Net Profi ts
The words net profi ts should be read together with Arts. 63(2) and 102(4).
Net profi ts refer to the increase in value between the market value of the
community property at the time of thecelebration of the marriage and the market
value at the time of its dissolution.
Net profits do not refer to the capital contributed by each spouse who retains
his/her right thereto regardless of bad/good faith.
N.B.: Arts. 43(2, 3, 4, and 5) and 44 apply to marriages declared void ab initio
or annulled by final judgment under Arts. 40 and 45.

net profi ts of the community


property or conjugal partnership
property shall be forfeited
in favor of the common children
or, if there are none, the
children of the guilty spouse by
a previous marriage, or in
default of children, the innocent
spouse;
(3) Donations by reason of
marriage shall remain valid,
except that if the donee
contracted the marriage in bad
faith,
such donations made to said
donee are revoked by operation
of law;
(4) The innocent spouse may
revoke the designation of the
other spouse who acted in bad
faith as a beneficiary in any
insurance policy, even if such
designation be stipulated as
irrevocable; and
(5) The spouse who contracted
the subsequent marriage in bad
faith shall be disqualifi ed to
inherit from the
innocent spouse by testate and
intestate succession. (n)
Art. 44. If both spouses of the
subsequent marriage acted
in bad faith, said marriage shall
be void ab initio and all
donations
by reason of marriage and
testamentary dispositions
made by one in favor of the
other are revoked by operation
of law. (n)
Art. 45. The marriage may be
annulled for any of the following
causes, existing at the time of

Another Instance of a Void Marriage


Art. 44 refers to another instance of void marriage when
both spouses in the subsequent marriage act in bad faith. Akin
to other void marriages, there must be a judicial declaration
of nullity as required under Art. 40 as well as registration of
said judgment in the civil registry under Art. 52.
N.B.: Void marriages are found under Arts. 35, 36, 37, 38,
44, and 53.

(1) Grounds for the Annulment of a Marriage


(a) This Article speaks of the grounds for annulment. They must exist at the time
of the celebration of the marriage.

the marriage:
(1) That the party in whose
behalf it is sought to have the
marriage annulled was eighteen
years of age or over but
below twenty-one, and the
marriage was solemnized
without the consent of the
parents, guardian or person
having
substitute parental authority
over the party, in that order,
unless after attaining the age of
twenty-one, such party freely
cohabited with the other and
both lived together as husband
and wife;
(2) That either party was of
unsound mind, unless such
party, after coming to reason,
freely cohabited with the other
as husband and wife;
(3) That 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 the other
as husband and wife;
(4) That the consent of either
party was obtained by force,
intimidation or undue infl uence,
unless the same having
disappeared or ceased, such
party thereafter freely
cohabited with the other as
husband and wife;
(5) That either party was
physically incapable of
consummating the marriage
with the other, and such
incapacity
continues and appears to be

A voidable marriage is valid until it is annulled. Before annulment, the voidable


marriage must be regarded as valid. One cannot just take the law into his own
hands. He must go to court. (See Landicho v. Relova, 22 SCRA731).
(b) Key words for the causes
1) Non-age (below 18)
2) Unsoundness of mind
3) Fraud (as defi ned in Art. 46, Family Code)
4) Force, intimidation, or undue influence
5) Impotence
6) Sexually-transmitted disease (if incurable)
() Non-age
(a) Example:
A 20-year-old boy married a 22-year-old girl. No parental consent was obtained by
the man. The marriage is VOIDABLE.
(b) May the parents ratify?
ANSWER: No, for this is not provided for under the law. Had this been an ordinary
contract, and not a social institution, the answer would have been different.

(2) Unsoundness of Mind


(a) The parties must possess the mental capacity the law requires for the making
of a will. (Menciano v. San Jose, L-1967, May 28, 1951). The true test is whether
the party concerned could intelligently consent; that is, that he knew what
contract he was entering into. (Hoadley v.Hoadley, 244 N.Y. 424).
(b) Intoxication which results in lack of mental capacity to give consent is
equivalent to unsoundness of mind. (McKnee v. McKnee, 49 Nev. 90). So is
somnambulism at the time of the wedding. (15 Sanchez Roman 528). Akin is
unsoundness of mind due to drug addiction.
(3) Fraud
(a) In general there is fraud when, thru insidious words or machinations of one of
the contracting parties, the other is induced to enter into a contract which,
without them, he would not have agreed to. (Art. 1338, Civil Code).
(b) But in marriage contracts, not all kinds of fraud make the marriage voidable.
The fraud in marriage must be one of those enumerated in Art. 46.
(c) How ratified free cohabitation after full knowledge of the facts constituting
the fraud.
(4) Force, Intimidation or Undue Infl uence
(a) Force or Violence There is violence when in order to wrest consent, serious
or irresistible force is employed.

incurable; or
(6) That either party was affl
icted with a
sexuallytransmissible disease
found to be serious and appears
to be
incurable. (85a)

(b) Intimidation There is intimidation when one of the contracting parties is


compelled by a reasonable and well grounded fear of an imminent and grave evil
upon his person or property, or upon the person or property of his spouse,
descendants, or ascendants, to give his consent.
(Art. 1335, 2nd par., Civil Code).
(c) Undue influence control over ones will.
Tiongco v. Matig-a
44 O.G. No. 1, p. 96
FACTS: A man married a woman because of the threats and armed
demonstrations of the brothers of the
wife. The wife put up, in court, the defense that the marriage should not be
annulled because the policy of the law is to maintain marriage ties. Decide the
case.
HELD: The marriage should be annulled. It is true that it is the policy of the law to
maintain the marriage
ties, but when the marriage is effected thru duress and intimidation, and without
the consent and against the will of one of the parties, there are no ties to be
preserved. There can be no doubt that the plaintiff acceded to the signing of the
marriage contract due to a reasonable and well-grounded fear of losing his life due
to the threats and armed demonstrations of the brothers of the defendant.
(d) When is a threat not considered as one vitiating consent? A threat to enforce
ones claim through competent authority, if the claim is just or legal, does not
vitiate consent. (Art. 1335, last paragraph, Civil Code).
(e) Problem
FACTS: A man had carnal knowledge of a girl who later on threatened to oppose
his admission to the practice of law if he did not marry her. Because he was afraid,
the man married her. Later, he asked for annulment on the ground of intimidation.
HELD: Marriage cannot be annulled because the threat was in a way a legal claim,
since under the law
an immoral man should not be admitted to the bar. (See Ruiz v. Atienza, O.G. Aug.
30, 1941, p. 1903). If, however, the charge of immorality was false, the marriage
can be annulled. (See Collins v. Collins, 2 Brewst [Pa.] 515).
Wiegel v. Sempio-Diy
GR 53703, Aug. 19, 1986
FACTS: A and B were allegedly forced to enter into marital union on June 25, 1972.
Later, in July 1973, B
and C got married. When C learned about the fi rst marriage of B to A, C fi led an
action for a declaration of the nullity of his marriage with B. At the pre-trial, the
issue agreed upon by both parties was the status of the first marriage (assuming

the presence of force exerted against both parties, i.e., A and B): Was said prior
marriage void or was it merely voidable? B wanted to present evidence
that the fi rst marriage was vitiated by force and that the fi rst husband was at the
time of marriage in 1972 already married to someone else. The trial court ruled
against the presentation of evidence because the existence of force exerted on
both parties of the fi rst marriage had already been agreed upon.
HELD: There is no need for B to prove that her first marriage was vitiated by force,
because assuming this to be so, the marriage will not be so, the marriage will not
be void but merely voidable, and therefore, valid until annulled. Since no
annulment has yet been made when B married C, therefore B was still validly
married to A. Thus, Bs marriage to C is void. There is also no need to introduce
evidence about the existing prior marriage of A at the time B and C married each
other. Such marriage though void still needs a judicial declaration of such fact and
for all legal intents and purposes B would still be
regarded as a married woman at the time she contracted her marriage with C.
Hence, the marriage of B and C would be regarded void under the law.
[N.B. The rule enunciated here is that a marriage vitiated by force or
intimidation is voidable, i.e., valid
until annulled. Therefore, if the fi rst marriage has not yet been annulled, a second
marriage contracted by one of the parties to the fi rst marriage is void.].
(5) Impotence or Physical Incapacity
(a) Impotence (impotentia copulandi) refers to lack of power of copulation and not
to mere sterility (impotentia generandi). (35 C.J.S. 826). Although impotency
carries with it sterility, a sterile person is not necessarily impotent. Impotency is a
ground to annul marriage because if known to the impotent person, a grievous
fraud and injury has been committed; and if unknown, there is a violation of an
implied warranty. (See Keezer on Marriage and Divorce, 3rd Edition, pp. 268-269,
477-480).
Sarao v. Guevara
(C.A.) 40 O.G. (1st Sup.) 263
FACTS: A wife felt great pain during copulation, so an operation was made on her
by a doctor, with her and her husbands consent. The operation was successful
but now the husband has lost all sexual desire for the wife since he was a witness
to the operation and all its sordid details and because the wife is now sterile. He
asked for annulment.
HELD: The annulment cannot be granted because the apparent impotence of the
wife was merely temporary, and as a matter of fact, she is no longer impotent.
Sterility, on the other hand, is not a ground. If both the husband and wife are

impotent, the marriage cannot be annulled because neither can claim he or she
has been aggrieved by the other.
(7) Sexually-Transmitted Diseases (STD)*
These would include AIDS, herpes, syphilis, gonorrhea, hepatitis, and the like,
provided, they are serious. Of course, AIDS is not only serious, it is fatal.
(8) How Voidable Marriages May be Ratified
(a) In general, free and voluntary cohabitation ratifies the voidable marriage. The
period need not be long. However, the cohabitation must be something more
than mere living together in the same house or even occupying the same bed; it is
the living together of the parties as husband and
wife, including sexual relations. (Sison v. Te Lay Ti, C.A.,No. 7037, May 7, 1952).
Sison v. Te Lay Ti
C.A. No. 7037, May 7, 1952
FACTS: Sison was forced by her father to marry a Chinese. The girl was virtually a
prisoner in the home of the parents of the husband. No sexual intercourse was had
except a month later, and even then, the Chinese had to threaten her with a knife.
She subsequently escaped. This case for annulment
was then brought.
HELD: The marriage here has not been ratified because there was no voluntary
cohabitation. Here also, the woman never consented to the status of a wife.
Therefore, the marriage can be annulled.
9) Distinctions Between ANNULMENT and LEGAL SEPARATION
ANNULMENT
(a) The marriage was defective at the
very beginning.
(b) The cause for annulment must be
already
existing at the time of the marriage.
(c) There are seven grounds for
annulment.
(d) Annulment dissolves the marriage
bond; the
parties are free to marry
again.
(e) From the angle of Private
International Law,
the grounds are generally those given

LEGAL SEPARATION
(a) There was no defect in the
marriage at the beginning.
(b) The cause for legal separation
arises after the marriage celebration.
(c) There are ten grounds for legal
separation.
(d) The marriage remains.

(e) From said angle, the grounds are


those given
by the NATIONAL LAW, not the lex loci
celebrationis for in legal separation,
the very validity of the marriage itself

in the
lex loci celebrationis (by implication
from Art. 71
of the Civil Code).

Art. 46. Any of the following


circumstances shall constitute
fraud referred to in Number 3 of
the preceding Article:
(1) Non-disclosure of a previous
conviction by final judgment of
the other party of a crime
involving moral turpitude;
(2) Concealment by the wife
of the fact that at the
time of the marriage, she
was pregnant by a man
other than herhusband;
(3) Concealment of a
sexually-transmissible
disease, regardless of its
nature, existing at the
time of the marriage;or
(4) Concealment of drug
addiction, habitual alcoholism,
homosexuality or lesbianism,
existing at the time of the
marriage.
No other misrepresentation or
deceit as to character, health,
rank, fortune or chastity shall
constitute such fraud as will
give grounds for action for the
annulment of marriage.
(1) (86a)

isNOT questioned, unlikein the case of


annulment. (See Art. 15 of the
CivilCode).

Fraud in Marriage
This Article should be read in connection with Art. 45, No. 3, Family Code
(regarding fraud). The enumeration here of possible grounds is exclusive, meaning
that no other kind of fraud is ground for the annulment of the marriage.
Aurora Anaya v. Fernando Paraloan
L-27930, Nov. 26, 1970
The non-disclosure by the husband of a premarital relationship with another
woman is NOT a ground for the annulment of the marriage.
(1) Example for Ground No. 2
A married a girl not knowing she was pregnant. It turned out later that she was
pregnant because of another sweetheart. The marriage is annullable. But if the
cause of the pregnancy had been A, then the marriage would not be annullable.
Note that the pregnancy must be at the time of the marriage ceremony.
Otherwise, if the pregnancy occurred afterwards, there can be no annulment,
whether the cause of pregnancy was the husband or other person.
Effect of Husbands Knowledge of the Pregnancy
It must be borne in mind that if a husband knew at the time the marriage was
celebrated that the woman was pregnant because of him, the marriage cannot be
annulled on the ground of fraud. The woman, as a matter of fact, does not even
have to tell him of her pregnancy, as when, for example, a child is born less than
90 days after the celebration of the marriage.
Reason: The present condition of the woman was already evident at the time of
the marriage. (Buccat v. Manganas, 72 Phil. 19). A pregnancy however, of about
four months is not readily apparent, particularly if the woman is naturally plump
or fat. (Aquino v. Delizo, L-15853, July 27, 1960). In fact it is
only on the 6th month of pregnancy that the enlargement of the womans
abdomen reaches a height above the umbilicus, making the roundness of the
womans abdomen more general
and apparent. (See Lull, Clinical Obstetrics, p. 122). Even physicians and surgeons,
with the aid of the woman herself, who shows and gives her subjective and
objective symptoms, can only claim positive diagnosis of 33% at fi ve months, and
50% at six months. (XI Cyclopedia of Medicine, Surgery, Pregnancy, p. 10). Note fi
nally that it is concealment (as already discusse

() Cases
Lyman v. Lyman
97 Atl. 312
FACTS: M, who had carnal knowledge of W, was persuaded by W to marry her as
according to her, she was pregnant because of M. The truth was that Y was
responsible for the pregnancy. When M discovered the fraud, he sued for
annulment of the marriage on these grounds. Ws attorney countered by saying
that M had no right to complain because, having had intercourse with the woman
prior to the marriage, M ought to have known that W was unchaste, and having
unclean hands, M could not invoke chastity. Decide the case.
HELD: The marriage should be annulled on the ground of fraud. M married the
woman only because he wanted to repair an alleged wrong his causing her to
be pregnant. If upon discovery of the fraud, he cannot ask for annulment, his
purely laudable action would be rewarded by a grave punishment.
This should not be the case.
Millar v. Millar
175 Cal. 97
FACTS: W had an illegitimate child born of her after living a lascivious life. Later
she met M, who married her not knowing of her previous life and unaware of the
childs existence. When he discovered the truth, he asked for annulment.
HELD: Annulment denied, since this kind of fraud is not one of those contemplated
by the law.
Garcia v. Montague
12 Phil. 480
FACTS: Garcia, a girl, married Montague, in a civil ceremony, on the strength of
the latters promise to have a Catholic wedding later. The girl subsequently
discovered that the groom was NOT a Catholic, and was NOT willing to undergo
the Catholic marriage rites. She sued for annulment.
HELD: The marriage CANNOT be annulled on the ground of fraud. This is not the
kind of fraud contemplated by the law on marriage.
Aurora A. Anaya v. Fernando O. Palaroan
L-27930, Nov. 26, 1970
The Court ruled that:
(a) Non-disclosure of a husbands pre-marital relationship with another woman is

not the kind of fraud that can annul a marriage.


(b) Fraud based on any secret intention on the husbands part not to perform his
marital duties must be alleged (if a wife wants a marriage annulled) within 4 years
after the celebration of the marriage. This is because said secret intent is
something that can be readily discovered by the wife soon after the wedding.
[NOTE: This second ruling was only obiter for this ground was alleged not in the
original complaint but only in the reply of the plaintiff to the defendants answer.].

(3) Concealment of a Sexually-Transmitted Disease


Note that here, the state of the disease need not be serious. However, there must
have been concealment. In Art. 45(6) (Family Code), the sexually-transmitted
disease must be serious and need not have been concealed at the time of the
marriage ceremony.
Art. 47. The action for
annulment of marriage must be
filed by the following persons
and within the periods indicated
herein:
(1) For causes mentioned in
Number 1 of Article 45 by the
party whose parent or guardian
did not give his or her consent,
within five years after attaining
the age of twenty one; or by the
parent or guardian or person
having legal charge of the minor,
at any time before such party
reached
the age of twenty-one;
(2) For causes mentioned in
Number 2 of Article 45, by
the sane spouse who had no
knowledge of the others
insanity;
by any relative, guardian or
person having legal charge
of the insane, at any time before
the death of either party; or
by the insane spouse during a

(1) Persons Who May Sue for Annulment of the Marriage,


and Prescriptive Periods
Causes/Action for annulment
Art 451-18 years of age or over but below
21 and solemnized w/o the consent
of parents/guardian
2-Party was found unsound mind
[NOTE: If a man marries an insane
girl knowing her to be insane, may
the marriage still be annulled?
Answer Yes, not on the part of the
man because of his prior knowledge,
but on the part of the relatives of
the insane party. (See Art. 47, No.
2).].
3-Consent was obtained by fraud
(NOTE: If both committed fraud,
neither can sue.)
4- Consent was obtained by force,
intimidation, undue influence

Who will file

Period

Her or his parent


The party herself or himself

-before party becomes 21


-after party becomes 21

The spouse who did not know the


other insanity
Or relatives or guardians of the
insane

At Any time before the death of


either party

The injured party

Within 5 years after the discovery


of the fraud

The injured party

Within 5 years from the time the


force or
intimidation or undue influence

lucid interval or after regaining


sanity;
(3) For causes mentioned in
Number 3 of Article 45, by
the injured party, within fi ve
years after the discovery of the
fraud;
(4) For causes mentioned in
Number 4 of Article 45, by
the injured party, within fi ve
years from the time the force,
intimidation or undue infl uence
disappeared or ceased;
(5) For causes mentioned in
Numbers 5 and 6 of Article
45, by the injured party, within fi
ve years after the marriage.
(87a)
Art. 48. In all cases of
annulment or declaration of
absolute nullity of marriage, the
Court shall order the
prosecuting
attorney or fi scal assigned to it
to appear on behalf of the State
to take steps to prevent
collusion between the parties
and to take care that evidence is
not fabricated or suppressed.
In the cases referred to in the
preceding paragraph, no
judgment shall be based upon a
stipulation of facts or confession
of judgment. (88a)

5- Impotence

The injured party

6- STD

The injured party

ceased
Within 5 years after the celebration
of the
Marriage
within 5 years after the celebration
of the
Marriage

(2) Period for Annulment of Marriage


Note that in general, the period is five (5) years.
(3) Problems on Unsoundness of Mind
A, a man, married B, a woman. It turned out that B was insane when the ceremony was performed. (a) If A knew of
this insanity during the marriage ceremony may he ask successfully for the annulment of the marriage?
No. The law clearly says he must have no knowledge of the others insanity. He who comes to equity must come
with clean hands. (See also Hoadley v. Hoadley, 244 N.Y., 424). But the relatives as guardian of the insane may. (b)
If A did not know of the insanity during the marriage
ceremony may he bring action for annulment? Yes.
(1) Rationale for the Rule on Stipulation of Facts or Confession
of Judgment
It is true that marriage may be annulled for certain causes, but if instead of
proving these causes the party concerned will only submit either a stipulation of
facts (facts agreed upon and signed by both the husband and wife) or a confession
of judgment (a statement by the erring spouse to the effect that he
or she is not against the annulment), then the court will refuse to render
judgment. Instead, the Court will proceed as in Art. 60, 2nd par. of the Family
Code.
It is provided for in Art. 60, par. 2, that in any case, the court shall order that
prosecuting
attorney or fi scal assigned to take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or suppressed. A marriage
cannot be annulled by means of a summary
judgment. (Jocson v. Robles, 22 SCRA 521)
.
(2) Confession of Judgment Defined
There are two kinds of confession of judgment, namely:
(a) Confession of judgment by warrant of attorney authority given by
defendant to plaintiffs attorney allowing the latter to tell the court that the
defendant confesses or admits the plaintiffs claim to be true and just. This is done
even before the action is actually filed.
(b) Confession of judgment or judgment by confession cognovits actionem that
rendered where, instead of defending himself, the defendant chooses to

acknowledge the rightfulness of the plaintiffs action. (See Blacks Law Dictionary,
p. 1026).
In Ocampo v. Florenciano, L-13553, Feb. 23, 1960,
the Court said that a confession of judgment usually happens when the defendant
appears in court and confesses the right of the plaintiff to judgment, OR files a
pleading expressly agreeing to the plaintiffs demand. If ASIDE from a stipulation
of facts or a confession of judgment, there still is presented SUFFICIENT
EVIDENCE, the Court may render a judgment annulling the marriage.
De Cardenas v. De Cardenas, et al.
L-8218, Dec. 15, 1955
FACTS: H married W No. 1, and later married, W No. 2, while the fi rst wife was still
alive. Can the second marriage be cancelled on petition of the fi rst wife on a
stipulation of facts?
HELD: Yes, although Art. 88 (Civil Code) prohibits the annulment of marriage on a
stipulation of facts (and Art. 101, Civil Code regarding legal separation), still
said article contemplates an annulment or legal separation by collusion. In this
case, there could be no collusion because the interests
of the two wives are confl icting.

(3) When a Marriage Is Annulled, Does the Obligation to Give Support


Still Subsist?
After a marriage is annulled, the obligation of mutual support between the
spouses ceases. (Art. 198). But the children should still be supported by them.
(See Art. 195).
(4) Who Pays for Attorneys Fees and Other Expenses in Annulment
Cases?
It depends:
a. if the action prospers (and the annulment is granted), the ABSOLUTE
COMMUNITY PROPERTY shall be liable.
b. if the marriage is not annulled, whoever brought the action shall pay for the
attorneys fees and other
litigation expenses.
(5) Instances When Damages May Be Awarded When the Marriage Is
Judicially Annulled or Declared Void from the Beginning

(a) If there has been fraud, force or intimidation in obtaining the consent of one of
the contracting parties (VOIDABLE MARRIAGE).
(b) If either party was, at the time of the marriage, impotent, and the other party
did not know this (VOIDABLE MARRIAGE)
(c) If one party was insane, and the other was aware thereof at the time of the
marriage (VOIDABLE MARRIAGE).
(d) If the person solemnizing the marriage was not legally authorized to perform
marriage, and that fact was known to one of the contracting parties, but he or she
concealed
it from the other (VOID MARRIAGE).
(e) If a bigamous or polygamous marriage was celebrated, and the impediment
was concealed from the plaintiff by the party disqualifi ed (VOID MARRIAGE).
(f) If, in an incestuous marriage, or other marriage prohibited by Article 32 (void,
but not incestuous), the relationship was known to only one of the contracting
parties, but was not disclosed to the other (VOID MARRIAGE).
(6) A Rare Instance Where Neither Law Nor Society Can Provide the
Specifi c Answer to Every Individual Problem

Art. 49. During the pendency of


the action and in the absence of
adequate provisions in a written
agreement between the
spouses, the court shall provide
for the support
of the spouses and the custody
and support of their common
children. The court shall give
paramount consideration to the
moral and material welfare of
said children and their choice of
the parent with whom they wish
to remain as provided for in Title
IX. It shall also provide for

Republic v. Iyoy
470 SCRA 508
(2005)
In the instant case, at most, the wifes abandonment, sexual infidelity, and bigamy
give the husband grounds to fi lefor legal separation, but not for declaration of
nullity of marriage while the Supreme Court commiserates with the latter for
being continuously shackled to what is now a hopeless and loveless marriage, this
is one of those situations where neither law nor society can provide the specific
answer to every individual problem.
Pendency of Action
According to Art. 49, during the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the court shall:
1. Provide for the support of the spouses and the custody and support of their
common children.
2. Give paramount consideration to the moral and material welfare of said children
and their choice of
the parent with whom they wish to remain.
3. Provide for appropriate visitation rights of the other parent.
Silva v. CA
84 SCAD 651 (1997)
There is, despite a dearth of specifi c legal provisions, enough recognition on the
inherent and natural right of parents over their children. (Examples are Arts. 150,
209, and 220 of the Family Code.)

Silva v. CA
84 SCAD 651 (1997)

appropriate visitation
rights of the other parent. (n)

Art. 50. The effects provided for


in paragraphs (2), (3), (4) and
(5) of Article 43 and in Article 44
shall also apply in
proper cases to marriages which
are declared void ab initio or
annulled by final judgment
under Articles 40 and 45.
The fi nal judgment in such
cases shall provide for the
liquidation, partition and
distribution of the properties of
the
spouses, the custody and
support of the common children,
and the delivery of their
presumptive legitimes, unless
such
matters had been adjudicated in
previous judicial proceedings.
All creditors of the spouses as
well as of the absolute
community or the conjugal
partnership shall be notifi ed of
the proceedings for liquidation.
In the partition, the conjugal
dwelling and the lot on which it
is situated, shall be adjudicated
in accordance with
the provisions of Articles 102
and 129.
Art. 51. In said partition, the
value of the presumptive
legitimes of all common
children, computed as of the
date of the final judgment of the
trial court, shall be delivered in

The Constitution itself speaks in terms of the natural and primary rights of parents
in their rearing of the youth.
Then, too, and most importantly, in the declaration of nullity of marriages, a
situation that presupposes a void or inexistent marriage. Art. 49, for one, provides
for appropriate visitation rights to parents who are not given custody of their
children.
Effects of Termination of Subsequent Marriage Where Applicable
As set forth under Arts. 43(2-5) and 44, the effects of termination of a subsequent
marriage shall apply to fi nal judgments annulling a voidable marriage or declaring
the latters nullity.

Value of Partition of Presumptive Legitimes


In said partition, the value of the presumptive legitimes of all common children are
computed as of the date of the final judgment of the trial court, and shall be
delivered in:
1. cash,
2. property, or

cash, property or sound


securities, unless the parties, by
mutual agreement judicially
approved, had already provided
for such matters.
The children or their guardian,
or the trustee of their property,
may ask for the enforcement of
the judgment.
The delivery of the presumptive
legitimes herein prescribed shall
in no way prejudice the ultimate
successional rights of the
children accruing upon the
death of either or both of the
parents; but the value of the
properties already received
under the decree of annulment
or absolute nullity
shall be considered as advances
on their legitime. (n)
Art. 52. The judgment of
annulment or of absolute nullity
of the marriage, the partition
and distribution of the
properties of the spouses, and
the delivery of the childrens
presumptive legitimes shall be
recorded in the appropriate
civil registry and registries of
property; otherwise, the same
shall not affect third persons.
(n)
Art. 53. Either of the former
spouses may marry again after
complying with the
requirements of the immediately
preceding Article; otherwise, the
subsequent marriage shall
be null and void.
Art. 54. Children conceived or
born before the judgment of
annulment or absolute nullity of

3. sound securities.
This is unless the parties, by mutual agreement judicially approved, had already
provided for such matters.

Who Are Not Affected?


Under the Rule provided for under Art. 52, third parties shall NOT be affected.

After Compliance With Requirements


After complying with the requirements of Art. 52, either of the former spouse may
marry again. To do otherwise renders the subsequent marriage null and void

(1) Illustrative Problems


(a) A married B and had a child C. Later, there marriage was declared void
because of As psychological incapacity. What is the status of the child?

the marriage under Article


36 has become final and
executory, shall be considered
legitimate. Children conceived
or born of the subsequent
marriage under Article 53 shall
likewise be legitimate.

If conceived or born before the decision of the court declaring the marriage VOID
becomes fi nal and executory, the child would be considered legitimate. (Art. 54,
Family Code).
(b) A married B through fraud. Later a child C was born. One month afterwards, an
action for annulment was brought by B, and after a few weeks, the decree of
annulment was
granted. What is the status of C?
Legitimate because it had been born previous to the annulment.
(c) A married B through force and intimidation. Later, a child C was conceived. In
the meantime, B had brought an action for annulment. A few weeks later, the
annulment was granted. Some months afterwards, C was fi nally born.
What is the status of C? Legitimate. Although it was born after the decree of
annulment, it had been conceived prior thereto, and by provision of law, is to be
considered legitimate.
(c) Although A forced B to marry him, B soon grew to be fond of him, and they
freely cohabited with each other. Later, B fi led an action for annulment.
Because of this free and willing cohabitation with each other, a child was
conceived after the action for annulment had been fi led in court. A few
months thereafter, the child C was born. What is the status of C?
(d) Legitimate. In the fi rst place, C was the result of free cohabitation on
the part of its parents, and therefore the action of annulment cannot be
successfully brought. In the second place, granting that the cohabitation
was not free, and granting further that the decree of
annulment was given, still the child had been conceived prior thereto, and should
therefore be considered legitimate.
(2) Problems on Double Marriages
A woman in good faith married a man whom she thought to be unmarried but who
was in reality already married.
Is the second marriage valid?
(a) ANSWER: No, the second marriage is not valid. Being bigamous, it is both
illegal and void ab initio.
(b) Is the man guilty of bigamy?
ANSWER: Yes.
(c) But suppose the man thought that his first wife was already dead, but did not
make diligent efforts to ascertain this fact, would he still be criminally liable?
ANSWER: Yes, he would still be guilty of bigamy. Besides, he should have first
asked for a judicial declaration of presumptive death. (Art. 41, 2nd par., Family
Code).