Persons Midterm

PERSONS AND FAMILY RELATIONS REVIEWER l XYRUS ALAN R.
BUCAO LLB 1 EH 306
HISTORY OF THE FAMILY CODE

E.O. 209 - July 6, 1987 and was amended by E.O. 277
July 17, 1987 last day published (august 3, 1987) and
took effect a year after it took efficacy on August 3,
1988.
-Art. 52 Art. 300+ (family relation under the civil code)
By the ibp board of governors drafted the new family code
eventually govt. t to note of the movement.
-Task to draft a new family code subject to approval by
congress to make it into a law.
-1986, task to draft the family code then the edsa revolt
commenced. Where Aquino assumed the presidency at the
start was a revolutionary govt.
-After assumption and abolish the legislative branch made up
of Marcos Cronies, therefore no congress and power was
vested to the president having both legislative and executive
powers.
- the draft was given to President as approved the New Family
Code and made into a law E.O. 209 (July 6, 1987).
-a few days after amendments were introduced E.O. July 17,
1987
-Family code Provide took affect one year after its publication,
was published in the official gazette and all other major
newspapers in the phils.
Last publication appeared in august 4, 1987, thus it took
affect was August 3, 1988.
CHAPTER 1 - MARRIAGE
Articles 1. Marriage is a special contract of permanent
union between a man and woman entered into in
accordance with the law for the foundation of the
family and the inviolable social institution whose
nature, consequences, and incidents are governed by
the law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this
code.
DEFINITION
-Marriage as an inviolable soical institution, is the foundation
of the family and shall be protected by the states (Article 15,
Sec. 2). It creates a social status or relation between
contracting parties, which not only they, but the state as well,
are interested.
Marriage is a special contract , differs from the ordinary
contract in the following aspects:
a. marriage is governed by the family code.
b. marriage is an inviolable social institution while the
latter is not;
c. marriage is not subject to stipulations between the
parties except to marriage settlement while an
ordinary contract is primarily governed by the
stipulation of the parties.
d. In marriage, there a only two parties, and one must
be male and the other is female. In the Ornidary
contract, there could be many parties and gender of
the parties is immaterial.
e. Marriage is terminated by death or annulment due to
legal causes while the ordinary contract is
terminated upon expiration of the term of the
contract, upon fulfilment of the conditions for which
it entered into, rescission, or upon mutual agreement
of the parties.
-right to marry is a fundamental human right under the

international law deserving full protection of all states
regardless of its ideology or political persuasion.
-it is not an ordinary contract but a special one because it
calls for a permanent union between a man and woman for
the establishment for a family life.
-unlike an ordinary contract which is bound by stipulations,
The consequence of marriage, such as offspring and the
administration of property, are governed by law and is not
subject to a compromise.
-marriage only can be subject of agreement between parties
is the choice of economic that will govern their property
relations during the marriage.
-Prenuptial Agreement = parties agree before the marriage on
how they will be governed by the separation of property
regime, by conjugal partnership of gains, or by the absolute
community of property regime.
a.
b.
c.
Conjugal property
Community property
Complete separation of property.
ILLUSTRATIVE CASES
REPUBLIC VS. CAGANDAHAN 565 SCRA 72
Jennifer had sex organs of both male and female.
(intersex)
When Jennifer grew, he decided to correct his birth
certificate.
SC ruled that a person who is intersex is determined
by the person upon the age of majority and not at
birth.
Take Note: Cases during the Marcos Regime
SILVERIO VS. REPUBLIC G.R. NO. 174689
Sex reassignment surgery does not change gender.
In the case of silverio there was no typographic error
in the entries of the birth certificate thus there was
no legal basis.
STAR PAPER CORP. VS. SIMBOL G.R. NO. 164774
stipulation of company policy, prohibiting employees
from marrying each other is an invalid exercise of
management.
SC ruled in favour of the employee.
DUNCAN VS. GLAXO G.R. NO. 162994
prohibition to marry an employee of a competing
company stipulated in the employment contract is
valid because under the reasonable circumstances of
relationship of employees may prejudice the interest
of the company.
- Duncan was reassigned to Mindanao which tantamount
to constructive dismissal.
SC ruled in favour of the Glaxo because of valid and
bonafide reason.
Articles 2. No Marriage shall be valid, unless these
requisites are present:
1.
Legal capacity of the contracting parties who

must be male anf a female and;
WORD OF CAUTION. This is a consolidated reviewer taken from the books of Dean Monteclar, Sta. Maria and Albano. Most words, if not all, are adopted
in verbatim.
My right over this property is limited to word-processing and structuring.
UNIVERSITY OF SAN CARLOS COLLEGE OF LAW 1 | P a g e
PERSONS AND FAMILY RELATIONS REVIEWER l XYRUS ALAN R. BUCAO LLB 1 EH 306
2.
Consent freely given in the presence of a

solemnizing officer.
solemnizing officer to scrutinize the marriage license was duly

issued.
Article 5. Any male or female of the age of eighteen

years or upward not under any of the impedements
mentioned in Article 37 and 38, may contract marriage.
Exception :
In cases of articulo mortis:(exceptional circumstances)
The solemnizing officer must endeavour to ascertain
the ages, relationship of the contracting parties, and the
absence of legal impediments to marry except from the
requirements of a marriage license. (art. 34)
NOTES
2 ESSENTIAL REQUISITES:
1. legal capacity to marry
2. consent freely & voluntarily given
3 FORMAL REQUISITES:
1. Authority of solemnizing officer (Art. 7)
2. Valid marriage license
3. Marraige ceremony
-legal capacity for mAan and woman is 18 years old and
above (age of majority under under R.A. 6809)
-must be of opposite sex and does not have legal
impediments mentioned in Article 37 and 38 of the family
code.
-consent must be free & voluntary and if consent is vitiated,
the marriage is voidable under Article 45 of the Family Code.
-the consent must be done by personal appearance in the
presence of the solemnizing officer.
Take Note:
Proxy is not valid in marriage.
Articles 3. The Formal requisites of marriage are:
1.
2.
3.
Authority of the solemnizing officer;

Valid marriage license except in the cases
provided for in Chapter 2 of this Title, and
A marriage ceremony which takes place with
the appearance of the contracting parties
before the solmenizing officer and their
personal declaration that they take each other
as husband and wife in the presence of not less
than two witnesses of legal age.
Article 6. No prescribed form or religious rites 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 declaration shall be signed by the
contracting parties and their witnesses and attested
by the solemnizing officer.
In case of marriage under articulo mortis, when
the party at the point of death is unable to sign 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 the
said party, which fact shall be attested by the
solemnizing officer.
-Under the new Local Government Code of 1992 empowered

the mayor to solemnize marriage.
-if either or if both of the parties believe in in good faith that
the person solemnizing their marriage is authorized to do so,
then the marriage is considered valid.
-the issuance of marriage license by the local civil registar is
the most important requisite in the validity of marriage it is
in its issuance that the state determines that there a no
impediments in the marriage.
-upon application of the marriage license, the applicant must
wait for ten days before it can be issued and the validity of
the license is 12o days and is recognized anywhere in the
Philippines.
-Marriage ceremony neednot be expressed in any particular
form, it only imposes that the contracting parties appear
before the solemnizing officer and declare that they take each
other as husband and wife in the presence of two witnesses of
legal age.
ABSENCE, DEFECT AND IRREGULARITIES INI
ESSENTIAL ELEMENTS AND FORMAL REQUISITES
THE
Articles 4. Absence of any of the essential or formal

requisites shall render the marriage void ab initio,
except as stated in Art. 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.
NOTES
-a marriage contracted by a minor is void for the lack of legal
capacity.
-Absence of authority to solemnize the marriage on the part of
th solemnizing officer renders the marriage void except when
either or both parties believe in good faith that the person
who solemnized the marriage has the authority to do so.
-Absence marriage license makes the marriage void unless it
falls under the exceptions.
-absence of marriage ceremony makes the marriage void.
NOTES
-marriage by proxy in the Phils. Is not valid because of
absence of consent.
-only duly authorized persons by the Family Code (art. 7) can
be allowed to solemnized marriages. It is not the duty of the
-Defect in the essential requisites of marriage makes the

marriage merely voidable. This refers particularly to the vice
in verbatim.
or defect in the consent to the marriage. This is governed by
Articles 45 and 46 of the Family Code.
-Irregularities in the formal requisites do not affect the validity
of the marriage but the person responsible for such
irregularity can be held civilly, criminally or administratively.
Example: Marriage license issued without tcomplying the 10

days publication period does not render the marriage void.
The Registrar who issued the license is liable.
The following are merely considered as irregularities
which do not affect the validity of the marriage:
a.) Marriage solemnized in a place other than in the church or
in the chamber of the judge;
b.) Absence of two witnesses who are of legal age;
c.) Issuance of a license in a place where neither of the parties
reside (Alcantara vs. Alcantara, G.R. No. 167776, Aug. 28,
2007); d.) Issuance of a license without the required
supporting papers or documents;
f.) Absence of a marriage contract.
g.) Issuance of license despite failure of the party to present
parental consent or parental advise when required;
h.) Issuance of license despite absence of posting of notice
and publication;
i.) Failure to undergo marriage counselling;
j.) Failure to pay the required fee for marriage license.
Persons authorized to solemnize marriage:
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 cases
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.
Exceptions:
-Retired judges
-Judges of quasi-judicial bodies do not have authority to

dsolemnize marriage.
3.) A priest of the Roman Catholic Church, an Imam of the

Muslims, a Rabbi of the Jews, a Minister or Pastor of other
religions may solemnize marriage provided the following
conditions are met:
a.) Must be authorized by his/her church or religious sect;
c.) Must act within the limits of the written authority granted
him by church or religious sect;
d.) At least one of the contracting parties belongs to the
solemnizing officers church or religious sect.
4. A ship captain and airplane chief can solemnize marriage
only when one of the parties is at the point of death (articulo
mortis) and that the parties must be passengers or crew
members of the ship or airplane while it was in transit.
5. Military Commander can also solemnize marriage if the
following requisites are present : a.) He must be a
commissioned officer commanding a military unit where a
chaplain is assigned; b.) The assigned chaplain is absent at
the time the marriage is solemnized; c.) The marriage must be
in articulo mortis; d.) The contracting parties must be a
member of his unit or a civilian; e.) The marriage must be
done in the zone or area of military operation.
6. Consul-General, Consul, or Vice Consul can solemnize
marriage only if both parties are Filipino and the marriage is
done abroad. Here, the consul acts not only as the solemnizer
but also performs the duties of the Local Civil Registrar by
issuing the marriage license. The marriage between a Filipino
and a foreigner solemnized by a consul abroad is not valid as
the Consul is not authorized to solemnize such marriage.
7. Mayors can once again solemnize marriage by virtue of the
Local Government Code which took effect on January 1, 1992.
Vice-mayor may also solemnize marriage only in the absence
of the mayor (Acting mayor)
Venue of marriage: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 vice-consul, as the case may
be, and not elsewhere
EXCEPTION:
1. except in the cases of marriages contracted at the
point of death or in remote places in accordance with
Article 29 of this Code or;
2.where both of the parties request the solemnizing
officer in writing in which case the marriage may be
solemnized at a house or place designated by them in
a sworn statement to that effect.
TAKE NOTE:
The marriage is still valid even if celebrated outside, however
the solemnizer can be held liable.
in verbatim.
Art. 9 A marriage license shall be issued by the Local
Civil Registrar of the city or municipality where either
contracting party habitually resides, except in
marriages where no license is required in accordance
Chapter 2 of this Title.
Art. 10 Marriages between Filipino citizens abroad
may be solemnized by a consul-general, consul or viceconsul 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 official. (75a)
-
contracting parties should secure a marriage license

from the Local Civil Registar of the place where either
of them resides. The license serves as the authority
given by the state to the parties to enter into
marriage.
Marriage license issued by the LCR where neither of

the parties resides does not render the marriage
void. It is considered as a irregularity in the formal
requisites for which the LCR is liable for the
irregularity.
When both parties to the marriage are Filipinos and

they want the marriage to be solemnized by the
Philippine Consul in that country, they must secure
first the required marriage license from the Consul
himself. Thus, the Consul acts as the Local Civil
Registrar by issuing the license and at the same time
as the solemnizing officer.
Application for Marriage License:Art. 11- Where a

marriage licence 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 parties;
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 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 parties 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 certificate 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 certificates or, in default thereof, the
baptismal certificates of the contracting parties or
copies of such document duly attested by the persons
having custody of the original. These certificates or
certified 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 official
title of the person issuing the certificate shall be
sufficient proof of its authenticity.
If either of the contracting parties is unable to produce
his birth or baptismal certificate or a certified copy of
either because of the destruction or loss of the
original, or if it is shown by an affidavit of such party
or of any other persons that such birth or baptismal
certificate has not yet been received though the same
has been required of the person having custody
thereof at least fifteen days prior to the date of the
application, such party may furnish in lieu thereof his
current residence certificate or an instrument drawn
up and sworn to before the local civil registrar
concerned or any public official 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 the birth or baptismal certificate
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. 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
certificate required in the last preceding article, the
death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of
the annulment or declaration of the nullity of his or her
previous marriage. In case the death certificate cannot
be secured, the party shall make an affidavit setting
forth this circumstance and his or her actual 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 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 affidavit
made in the presence of the two witnesses and
attested before any official authorized by the law to
in verbatim.
administer oaths. The personal manifestation shall be
recorded in both applications for the marriage license,
and the affidavit, if one is executed instead, shall be
attached to said application. (61a)
certificate of legal capacity to marry issued by his diplomatic

or consular representative in the
Art. 15- Any contracting party between the ages 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 licence. Should the parents or
guardian refuse to give any advice this fact shall be
stated in the sworn statement. (62a)
3. Birth certificate or baptismal certificate is required in order

for the local civil registrar to determine whether the party is of
legal age and is legally capacitated to contract marriage. The
requirement of presenting the birth certificate, however, is no
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 certificate issued by a
priest, imam or minister authorized to solemnize
marriage under Article 7 of this Code or a marriage
counselor duly accredited by the proper government
agency to the effect that the contracting parties have
undergone marriage counselling. Failure to attach said
certificate of marriage counselling shall suspend the
issuance of the marriage license for a period of three
months from the completion of 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)
NOTES
1. The application for marriage shall contain the necessary
information enumerated in Article 11 and must be
accompanied by the following documents, to wit:
a.) Birth certificate or Baptismal certificate of the parties (Art.
12); b.) If either of the parties has been previously married,
the death
certificate of the deceased spouse or the judicial decree of the
absolute divorce, annulment of marriage or declaration of
nullity of marriage (Art. 13);
c.) In case the party is between the ages of eighteen and
twenty one, they must present parental consent (Art. 14);
d.) If the party is between the ages of twenty one and twenty
five, parental advice is required (Art. 15);
e.) Certificate of marriage counselling in cases where parental
consent or parental advice is required (Art. 16).
f.) If a party to the marriage is a foreigner, he must present a
Philippines (Art. 21 ).
NOTES
longer needed in the following instances: (1.) if the parents of
the party concerned will personally appear before the local
civil registrar and attest to the fact that said party is already
of legal age; (2.) When the local civil registrar shall, by merely
looking at the personal appearance of the party, be convinced
that he/she is already of legal age; (3.) When the party has
been previously married;
4. When the party is between the ages of eighteen and twenty
one, parental consent is required. Absence of parental consent
renders the marriage voidable, meaning it is valid until
annulled (Art. 45 par. 1). Preference is given to the father to
give consent, otherwise, the mother, surviving parent or
guardian or persons having legal charge of them in the order
mentioned shall give the consent.
5. Parental advice is required if a party is between the ages of
twenty one and twenty five. Absence of parental advice does
not affect the validity of marriage. Its only effect is that the
local civil registrar may withhold the issuance of the marriage
license till after three months following the completion of the
publication of the application (Art. 15).
6. In cases where parental consent or parental advice is
required, the parties must first undergo marriage counselling
and attach to their application for marriage license a
certification that they have already undergone marriage
counselling. This certificate shall be issued by the persons
authorized to solemnize marriage or by any marriage
counsellor duly accredited by the proper government agency.
Failure to attach said certificate shall cause the suspension of
the issuance of the marriage license for a period of three
months. Issuance of the license in violation of this provision
does not affect the validity of the marriage, but, the local civil
registrar may be held administratively liable (Art. 16).
Duty of the Local Civil Registrar:
Art. 17- The local civil registrar 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
in verbatim.
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 of the marriage license. No other
sum shall be collected in the nature of a fee or a 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 affidavit, or by their oath
before the local civil registrar. (65a)
1. Upon receipt of the application for marriage license, it is the
duty of the local civil registrar to immediately post a notice to
inform the public of the impending marriage. The notice shall
be posted in the bulletin board outside the office of the local
civil registrar for ten consecutive days. The notice shall
request all persons having knowledge of any impediment to
the marriage to inform the local civil registrar about it. The
marriage license shall be issued only after the lapse of the ten
day period of publication. Should the local civil registrar issue
the license before the lapse of the ten day period, he can be
held administratively liable but the marriage will remain valid.
2. If the local civil registrar is informed of any legal
impediment of a party applying for a marriage license he shall
note down the particulars thereof, but he could no longer
refuse the issuance of the license. Even if he is made aware of
the impediments he must still issue the license except if he is
restrained by the court at his own instance or of any
interested party.
3. The local civil registrar shall collect payment of fees for the
issuance of the marriage license in the amount of P300.00.
However, it shall be issued free of charge to indigent parties.
Life of the Marriage License:
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 at the
face of every license issued. (65a)
Certificate of Legal Capacity to Marry:
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.
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 capacity to contract marriage. (66a)
NOTES
1. When either or both parties to the marriage are foreigners,

marriage license is still required if they want the marriage to
be solemnized here in the Philippines. For the foreigner
spouse, it is not anymore necessary for him/her to present
birth certificate. Instead what the law requires is for the said
party to present a certificate of legal capacity to contract
marriage duly issued by their respective diplomatic or
consular official. This is so because a persons capacity to
marry is determined by his/her national law (Art. 15 Civil
Code). So, even if a foreigner is below eighteen years of age
he can contract marriage here in the Philippines if his national
law allows him to marry at that age.
2. However, if both parties are foreigners and they desire to
have their marriage solemnized by their countrys consulgeneral assigned here in the Philippines, the marriage can be
solemnized without a marriage license if their countrys law
allow the same. Such marriage is recognized as valid here in
the Philippines.
Marriage Certificate:
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
settlement, if any, attaching a copy thereof. (67a)
Art. 23- It shall be the duty of the person solemnizing
the marriage to furnish either of the contracting
parties the original of the marriage certificate referred
to in Article 6 and to send the duplicate and triplicate
copies of the certificate not later than fifteen days
after the marriage, to the local civil registrar of the
place where the marriage was solemnized. Proper
receipt shall be issued by the local civil registrar to the
solemnizing officer transmitting copies of the marriage
certificate. The solemnizing officer shall retain in his
file the quadruplicate copy of the marriage certificate,
the original of the marriage license and, in proper
cases, the affidavit 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
in verbatim.
prepare the documents required by this Title, and to
administer oaths to all interested parties without any
charge in both cases. The documents and affidavits
filed in connection with the 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 filed with him in a
registry book strictly in the order in which the same
are received. He shall record in the 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)
NOTES
1. The best evidence to establish or prove marriage is the

marriage
contract or the marriage certificate (Lim Tanhu vs. Ramolete,
66 SCRA 425). It is a certification issued by the solemnizing
officer that he performed or solemnized the marriage between
the parties. However, absence of a marriage certificate does
not invalidate the marriage as it is not even one of the
essential requisites for the validity of marriage. The rule is
that persons dwelling together in apparent matrimony are
presumed, in the absence of any counter- presumption or
evidence special to the case, to be in fact married (Perido vs.
Perido, 63 SCRA 97).
2. A man and a woman deporting themselves as husband and
wife are presumed to have entered into a lawful contract of
marriage. This presumption of marriage shall stand unless
contradicted or overcome by evidence to the contrary. The
reason for this presumption is that the law favors morality and
not immorality; marriage and not concubinage; legitimacy and
not bastardy.
3. A man and a woman living together for more than 50 years
are always presumed married even if no marriage license
could be shown. Under Rule 131, Sec. 3 of the Rules of Court,
a disputable presumption is created in favor of marriage, thus,
a man and a woman deporting themselves as husband and
wife are presumed to have entered into a lawful contract of
marriage. In this case, several circumstances give rise to the
presumption that a valid marriage existed between Guillermo
Rustia and Josefa Delgado. Once the presumption of marriage
arises, other evidences may be presented in support thereof.
In this jurisdiction, every intendment of the law leans towards
legitimizing matrimony. Persons dwelling together apparently
in marriage are presumed to be in fact married. This is the
usual order of things in society and, if the parties are not what
they hold themselves out to be, they would be living in
constant violation of the common rules of law and propriety.
Semper praesumitur pro patrimonio. Always presume
marriage (In the matter of the Intestate Estates of the
Deceased Josefa Delgado and Guillermo Rustia vs. Heirs of
Marciana Rustia Vda. de Damian et al., G.R. No. 155733,
January 27, 2006, 480 SCRA 334).
4. A marriage, like any other contract, may be proved by
evidence of any kind. It may be proved by parol evidence or
testimony by one of the parties or witnesses to the marriage,
or by the person who solemnized the same. Public and open
cohabitation as husband and wife after the alleged marriage,
birth and baptismal certificates of children borne by the

alleged spouses, and a statement of such marriage in
subsequent documents are competent evidence to prove the
fact of marriage. (Pugeda vs. Trias, 4 SCRA 849).
5. It is incumbent upon the person who attacked the validity
of marriage to present a strong and satisfactory evidence to
rebut the presumption of validity. The evidence to prove the
invalidity of the marriage may even be presented for the first
time on appeal. Thus, even if the petitioner failed to assert the
absence of a marriage license as a ground for nullity of
marriage as her petition was anchored solely on the ground of
psychological incapacity under Article 36, the Supreme Court
declared the marriage void on the ground of absence of a
license. The Court made an exception to the general rule that
a party cannot raise an issue for the first time on appeal
because the marriage contract itself, which was presented as
evidence, clearly showed that the marriage was solemnized
on November 15, 1973 while the marriage license was issued
only on September 17, 1974. Thus, it is quite glaring that at
the time of the celebration of the marriage, the license was
not yet issued (Sy vs. Court of Appeals, G.R. No. 127263, April
12, 2000).
6. It is the duty of the local civil registrar to prepare the
documents required in this Title without charge. Then, he shall
enter all applications for marriage licenses in the registry book
in the order in which the same are received.
Lex Loci Celebraciones Rule in Marriage:
Art. 26- All marriages solemnized outside the
Philippines, in accordance with the laws in force in the
country where they are 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.
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. (n) (As amended by Executive Order
NOTES
Number 227, July 17, 1987.)
1. The lex loci celebraciones rule in marriage simply means
that if the marriage is celebrated abroad and it is considered
as valid there, it shall also be considered as valid here. The
recognition by our law of the validity of the marriage
celebrated abroad is a matter of international comity.
However, when the marriage celebrated abroad is repugnant
to our countrys laws and policy, our court is not bound by
comity to give effect to it. This is because a state is the
conservator of its own moral and good order of society. Thus,
it has the right to declare what marriages it will or will not
recognize within its border.
2. The Family Code, however, provides that even if the
marriage is valid in the country where it was celebrated, the
same cannot be recognized as valid here if it is one of the void
marriages under Articles 35(1), (4), (5) and (6), 36, 37 and 38.
In the light of the foregoing exceptions, the following
marriages, even if considered as valid in the country where it
in verbatim.
was solemnized, can never be considered as valid in the
Philippines, to wit:
Art. 41;
declared judicial
a.) If the party who is a Filipino is below 18 years old;b.) If the
marriage is bigamous or polygamous not falling under
c.) If contracted through mistake of identity of the other party;
d.) If the party whose previous marriage has been annulled or
void, contracts a second marriage but failed to record the
71
and 53);
36);
decree with the LCR, to partition their conjugal properties,
deliver the presumptive legitime of their children (Art.
e.) Where one of the party is psychologically incapacitated
(Art.
f.) Marriages considered incestuous (Art. 37);g.) Marriages
that are against public policy (Art. 38);
3. A marriage validly solemnized abroad shall always be
considered as valid here for as long as it does not fall under
the exceptions mentioned in Article 26 par. 1 of the Family
Code. Thus, a marriage without a license, a marriage
solemnized by a person not authorized to solemnize marriage
under Art. 7 of the Family Code, or a marriage by proxy, if
considered valid in the country where it was celebrated, shall
also be considered as valid here in the Philippines. This is so
because these marriages are not among the void marriages
mentioned in the exceptions to the lex loci celebraciones rule;
4. Some countries recognize common law marriages as valid.
This kind of marriage between Filipinos, however, cannot be
considered as valid here because Article 26 speaks of
marriages
solemnized
abroad.
The
word
solemnize
presupposes the performance of a marriage ceremony which
is wanting in a common law marriage.
5. As a general rule, absolute divorce obtained by a Filipino
spouse abroad is not recognized as valid here because we
adhere to the nationality theory under Article 15 of the Civil
Code. A person is governed by his national law wherever he
may go when it comes to family rights and duties, status,
conditions and legal capacity is concerned. This is true even if
the other spouse is not a Filipino;
6. In case of marriage between a Filipino and a foreigner
(mixed marriage), and it is the foreigner spouse who obtained
a divorce abroad against the Filipino spouse, capacitating him
to remarry, the said divorce will be recognized here to
capacitate the Filipino spouse to remarry (see: Article 26 par.
2 as amended). The recognition of the divorce obtained by the
foreigner spouse was intended to correct the very unfair
situation created by the former law wherein even if the alien
spouse has already divorced his Filipino spouse and is already
married to another woman the Filipino spouse is still

considered married to him. However, for the foregoing rule to
apply, it is important that it is the foreigner spouse who filed
the divorce and that after it is granted he must be capacitated
to marry again according to his national law.
7. However, in the case of Republic vs. Cipriano Orbecido III,
G.R. No. 154380, Oct. 5, 2005, the Supreme Court ruled that a
divorce decree obtained by the wife who is now a U.S. citizen,
against her Filipino husband who continued to live here in the
Philippines, is considered valid. Thus, it will capacitate the
husband to marry again here. The Court said that Article 26
par.
2 applies not only to foreigners divorcing their Filipino spouse
but also to former Filipinos who obtained foreign citizenship
and thereafter filed a divorce against the other spouse.
8. The divorce obtained by the foreigner spouse abroad does
not ipso facto entitle the Filipino spouse to remarry. Before the
Filipino spouse could remarry, he/she must first prove in court
the fact of divorce obtained by the foreigner spouse and also
the fact that said spouse is capacitated by his national law to
remarry after the divorce (Garcia-Recio vs. Recio, G.R. No.
138322, Oct. 2, 2001). The action to be filed in court is
Declaratory Relief as ruled by the Supreme Court in the
Orbecido case;
9. Prior to the Orbecido ruling, it was said that a Filipino
spouse who filed a divorce against her foreigner spouse is not
capacitated to remarry as said divorce is not recognized here
in the Philippines. The Filipino spouse is still governed by her
national law. But, if the Filipino spouse has already acquired
the citizenship of her husband by virtue of the marriage and
thereafter obtained a divorce against him, such divorce is
considered as valid here not because of Article 26 but
because of our adherence to the nationality principle in so far
as the status of the person is concerned (Quita vs. Court of
Appeals, 300 SCRA 406; Llorente vs. Court of Appeals, G.R.
No. 124371, Nov. 23, 2000).
10. However, even if the divorce obtained by the Filipina wife
against her alien husband abroad is not recognized as valid
here, the husband cannot anymore claim that he still has an
interest in the property acquired by his Filipina wife after the
divorce on the ground that under the Philippine law their
marriage is still subsisting. Since the foreigner husband is
already considered divorced under his national law then he
has no more interest in the properties acquired by his former
wife after the divorce (Van Dorn vs. Romillo, 139 SCRA 139). In
another case, the Supreme Court also ruled that a Filipina wife
who divorced her foreigner husband and thereafter had sexual
intercourse with another man cannot be charged by her
former husband of adultery because although she is still
considered married to him by our law, such foreigner is no
longer considered married by his law to his Filipina wife and,
therefore, he does not have a legal standing anymore to file
the adultery case. Considering that he is already considered
divorced by his national law, then he is no longer considered a
spouse who can file the criminal case for adultery (Pilapil vs.
Ibay Somera, 174 SCRA 653).
10. Article 26 provides that marriages validly celebrated
abroad shall as a rule be considered also as valid here.
Therefore, if the marriage of a Filipino abroad is considered as
void or voidable under the law of the country where it was
celebrated, the marriage can also be annulled or declared
void here by our court. For example, if the marriage is
in verbatim.
solemnized without the presence of witnesses who are of legal
age and such marriage is considered null and void in the
country where it was celebrated, then it is also considered
void here and a case to declare the marriage void may be
filed in our court. This is true even if the said kind of marriage
would have been valid here.
11. A divorce decree obtained by a former Filipina citizen who
has now acquired American citizenship is recognized as valid
here in the Philippines if sufficiently proven or established as a
fact. Her filing an action to declare the nullity of her marriage
to her husband on the ground of the latters psychological
incapacity under Article 36 of the Family Code is no longer
tenable. Given the validity and efficacy of divorce secured by
her, the same shall be given a res judicata effect in this
jurisdiction. As an obvious result of the divorce decree
obtained, the marital vinculum between Rebecca and Vicente
is considered severed and they are both freed from the bond
of matrimony. Therefore, the petition under Article 36 is
dismissible for lack of cause of action (Bayot vs. Court of
Appeals, G.R. No. 155635/163979, November 7, 2008).
Chapter
2MARRIAGES
REQUIREMENT
EXEMPT
FROM
A.
Marriage under Articulo Mortis:
B.
Art. 27- In
contracting
case
either
or
both
LICENSE
of
the
parties are at the point of death, the marriage may be

solemnized without 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 transportation to enable such
party to appear personally before the local civil
registrar, the marriage may be solemnized without
necessity of a marriage license.
Art. 29- In the cases provided for in the two preceding
articles, the solemnizing officer 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 necessary steps to ascertain the ages and
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 flight, 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)
1. A marriage in articulo mortis is a marriage where
one of the parties
is at the point of death. This kind of marriage can be
solemnized even without a marriage license because of
necessity and practicability. The marriage can be
solemnized by the ship captain or airplane chief if the
parties are passengers or crew of the vessel or
airplane and the same is in transit (Art. 31). It can also
be solemnized by a military commander within the
zone of military operation provided the assigned
chaplain is absent and the parties are members of the
armed forces or civilians. Of course, the priest, judge
and other persons authorized to solemnize marriage
under Article 7 of this Code can also solemnize
marriage under articulo mortis.
2. The person who solemnized the marriage under
articulo mortis must execute an affidavit before the
local civil registrar stating that he solemnized the
marriage under articulo mortis and that he took all the
necessary steps to ascertain the age and relationship
of the contracting parties and that he is convinced that
they have no legal impediment to marry.
3. The original copy of the affidavit shall be submitted
by the solemnizing officer to the local civil registrar of
the municipality or city where the marriage was
performed within the period of thirty (30) days.
B. Marriage in a far and remote place:Art. 28- If the
residence of either party is so located that there is no
means of transportation to enable
registrar, the marriage may be solemnized without
necessity of a marriage license. (72a)
NOTES
1. If the parties are residing in a far and remote place that it is
difficult for them to secure the required marriage license
because their place has no means of transportation, they will
be exempted from the said license requirement. The
solemnizing officer must, however, execute an affidavit after
the celebration of the marriage stating that he solemnized the
marriage in a far and remote place and that he ascertained
the age and relationship of the parties and the absence of any
legal impediment to marry. The reason for allowing this kind of
marriage to proceed without a license is to encourage the
parties to marry and legalize their relationship instead of
cohabiting in an illicit relationship.
Marriages among Muslims
cultural communities:
or
members
of
ethnic
Art. 33- Marriages among Muslims or among members

of ethnic cultural communities may be performed
validly without the necessity of a marriage license,
provided they are solemnized in accordance with their
customs, rites or practices. (78a)
in verbatim.
1. The Code of Muslim Personal Laws of the Philippines which
was signed into law on February 4, 1977 is the governing law
on persons and family relations among Muslims. Under the
said law, marriage license is not required for the validity of the
marriage among Muslims. However, the Family Code qualified
it by saying that marriages among Muslims do not need a
marriage license provided it is done in accordance with their
customs, rites or practices. This rule also applies to marriages
among members of the ethnic cultural communities. It is
necessary, however, that the parties to the marriage must be
both Muslims or both members of the ethnic cultural
communities because of the use of the word among. If it is a
mixed marriage, then the requirement of a marriage license
cannot be dispensed with.
5. The marriage solemnized without a marriage license on the

basis of an affidavit executed by the parties that they have
already been living together as husband and wife for at least
five years is null and void if it turns out that the affidavit is
falsified as the allegations therein are not true. If the truth is
that the parties did not live together for at least five years,
then the marriage will not fall under the exception and
therefore there is a need for a marriage license. The falsified
affidavit does not exempt the parties and their marriage is
considered to be one without a license, hence, void. The
falsity of the affidavit cannot be considered to be a mere
irregularity considering that the 5-year period is a substantial
requirement of the law to be exempted from obtaining a
marriage license (De Castro vs. Assidao-De Castro, G.R. No.
160172, February 13, 2008).
Ratification of Marital Cohabitation:

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 parties and found no legal
impediment to the marriage. (76a)
NOTES
1. When the parties have already been living together as
husband and wife for at least five years without any legal
impediments to marry each other, the requirement of a
marriage license is no longer needed. What the parties will do
is to execute a joint affidavit stating the foregoing fact and
have it notarized by a person duly authorized to administer
oath. This affidavit will take the place of the marriage license.
2. Before the solemnizing officer will solemnize the marriage,
he must first ascertain the qualifications of the contracting
parties and must find no legal impediment. Failure of the
solemnizing officer, however, to perform that duty does not
invalidate the marriage.
3. There are two conditions that the parties must meet and
they are: (1.) they must live together as husband and wife for
at least five years; and (2.) there must be no legal
impediments for them to marry each other. The question now
is whether these two conditions should concur and qualify
each other. Under the previous law, which is the Civil Code of
the Philippines, these conditions must qualify each other.
Meaning, during the entire five- year period of cohabitation
either party must not have any legal impediment to marry
each other. This is evident from Article 76 of the Civil Code
which requires that the parties must be unmarried during the
period of cohabitation. Thus, a married man who is living with
his paramour during the time that his legal wife is still alive
cannot avail of the exception in case he decides to marry his
live-in partner after his wifes death (Ninal vs. Bayadog,
G.R.No. 133778, March 14, 2000, 328 SCRA 122).
4. Under Article 34 of the Family Code, these two conditions
must concur, but they do not qualify each other. This means
that during the five year cohabitation period, it is not
necessary that they must have no legal impediment to marry
each other. It is enough that they have no legal impediment
at the time they decide to marry each other. In other words,
the absence or presence of legal impediments should only be
considered at the time of the celebration of the marriage
(Manzano vs. Sanchez, AM No. MTJ 00- 1329, March 8, 2001).
6. The falsity of an affidavit of marital cohabitation, where the

parties have in truth fallen short of the minimum five-year
requirement, effectively renders the marriage void ab initio for
lack of marriage license. The marriage performed without the
corresponding marriage license is void. The rationale for the
compulsory character of a marriage license under the Civil
Code is that it is the authority granted by the State to the
contracting parties, after the proper government official has
inquired into their capacity to contract marriage. The reason
for the law on ratification of marital cohabitation, whereby no
marriage license is required, is that the publicity attending a
marriage license may discourage such persons who have lived
in a state of cohabitation from legalizing their status.
Jurisprudence has laid down the rule that the five-year
common law cohabitation period under Article 76 of the Civil
Code means a five-year period computed back from the date
of celebration of marriage, and refers to a period of legal
union had it not been for the absence of a marriage (Republic
vs. Dayot, 550 SCRA 435).
7. It must be noted, however, that the Dayot case was
decided by the Supreme Court in the light of the provision of
Article 76 of the Civil Code as the alleged live-in relationship
and the marriage occurred before the effectivity of the Family
Code. Thus, it could not be safely said that the Manzano ruling
has already abandoned by the Dayot ruling;
Chapter 3VOID AND VOIDABLE MARRIAGES
A. Void Ab Initio Marriages:
Art. 35- The following marriages shall be void from the
beginning:
1) Those contracted by any party below eighteen years
of age even with the consent of parents or guardians;
2) Those solemnized by any person not legally
authorized
to
perform
marriages
unless
such
marriages were contracted with either or both parties
believing in good faith that the solemnizing officer had
the legal authority to do so;
3) Those solemnized without a license, except those
covered by the preceding Chapter;
4) Those bigamous or polygamous
falling under Article 41;
marriages
not
5) Those contracted through mistake of one

contracting party as to the identity of the other; and
in verbatim.
6) Those subsequent marriages that are void under
Article 53.
NOTES
1. There are two kinds of defective marriages, and these are
the Void and the Voidable Marriages. The basic distinction
between these two types of defective marriages are the
following: (1.) Void marriages are defective from the very
beginning and cannot be ratified unlike Voidable marriages
which are ratifiable; (2.) A void marriage can be attacked
collaterally while a voidable marriage can only be attacked
directly. This means that the nullity of a void marriage can be
raised even after the death of the parties while a voidable
marriage can only be questioned during the lifetime of the
parties; (3.) The action to declare the nullity of a void
marriage is imprescriptible while the action to annul a
voidable marriage prescribes; and (4.) As a general rule, a
void marriage can only be assailed by the parties to the
marriage ( See: A.M. No. 02-11-10 S.C., Sec. 2(a)) while a
voidable marriage can be questioned by other persons like the
parents of a party as in the case of a marriage without
parental consent.
2. Void marriages under Article 35 are those marriages which
are defective because they fail to comply with the essential
and formal requisites of marriage under Articles 2 and 3. A
marriage contracted by a party below 18 years of age is void
because of the absence of legal capacity which is one of the
essential requisites for the validity of the marriage. Those
solemnized by a person not authorized to solemnize marriage
and those marriages solemnized without a license are also
st
nd
void because of the absence of the 1 and the 2
formal
requisites of marriage. Likewise, bigamous and polygamous
marriages, those contracted by mistake, and subsequent
marriages under Article 53 are considered void.
3. Collateral attack of a void marriage simply means that
the nullity of the marriage is not the principal or main issue of
the case but it is necessary to the resolution of the main case.
For example, in a case for the settlement of the estate of a
deceased person where there are several claimants and one
claimant claims that the other group of claimants are not
legitimate children because the marriage of their mother to
the deceased is not valid, the court may pass upon the issue
of nullity of the marriage to determine whether or not said
claimants are really illegitimate. This is necessary because if
the court finds that these claimants are illegitimate because
the marriage of their mother to the deceased is void, then,
they will receive less than the legitimate children. There is no
need here to produce proof of a prior judicial declaration of
nullity of marriage because evidence other than judicial
decision of nullity of marriage can be presented to establish
the illegitimacy of some claimants (Domingo vs. Court of
Appeals, 226 SCRA 572).
4. The validity of a void marriage may be collaterally attacked
in an action for support. Thus, the alleged father of the child
demanding support may raise the issue that there is no valid
marriage between the defendant and the mother of the child,
and that the child is not his to avoid giving support to the
child. Other than for purposes of remarriage, no judicial action
is necessary to declare a marriage an absolute nullity. In the
case of Ninal vs. Bayadog, the Court ruled that for other
purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that
matter, the Court may pass upon the validity of marriage
even in a suit not directly instituted to question the same so

long as it is essential to the determination of the case. This
rule was reiterated in the case of Nicdao Carino vs. Yee Carino
where the main case is a claim for death benefits (De Castro
vs. De Castro, G.R. No. 160172, February 13, 2008).
5. Direct attack, however, is necessary if the purpose is to
remarry. Article 40 of the Family Code provides that the
absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment
declaring such marriage void. In other words, if a persons
first marriage is void, and he wants to marry again, he must
first file a civil action for the declaration of nullity of such first
marriage before he can remarry. Another instance where
direct attack is necessary is in the case of Article 50 in relation
to Article 43(3) which speaks of the revocation of a donation
propter nuptias because the marriage is void. Thus, before the
donor can revoke the donation propter nuptias, it is important
that a judicial declaration of nullity of marriage must first be
obtained.
6. A void marriage is defective from the very beginning and
cannot be ratified. This is the reason why an action to declare
the marriage void is imprescriptible. However, in a case where
the petitioner, after his petition to declare his marriage void
on the ground of psychological inacapacity was denied by the
court, subsequently filed another petition for nullity of
marriage, this time on the ground of absence of a valid
marriage license, the Supreme Court ordered the dismissal of
the second case on the ground that petitioner violated the
rule on splitting-a-cause of action and the rule on res judicata.
It said that a case for nullity of marriage involved only one
cause of action which was to declare the marriage void. The
different grounds for nullity of marriage did not mean different
causes of action. Hence, by failing to invoke the ground of
absence of a valid marriage license in the first case, the
petitioner is deemed to have impliedly admitted the validity of
the celebration of the marriage and he had therefore waived
all the defects. Accordingly, the petitioner was considered to
have been barred by res judicata. (Mallion vs. Alcantara, G.R.
No. 141528, October 31, 2006);
6. Good faith of the parties in entering the marriage is
immaterial and it does not validate an otherwise void
marriage. Thus, when one married his spouse believing that
she is already of legal age, the marriage is still void. There is,
however, one instance where good faith can validate the
marriage, and this is the marriage where either party believes
in good faith that the person who solemnized the marriage is
authorized by law to solemnize the marriage (Article 35(2)).
Void because of Psychological Incapacity:
Art. 36- A marriage contracted by any party who, at
the time of the celebration, is 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 Execurive Order
Number 227 dated July 17, 1987)
1. This article was introduced by Executive Order No. 227 on
July 17, 1987 as an amendment to the Family Code. No clear
definition of psychological incapacity, however, was provided
by the law as it was its intention to leave the determination of
psychological incapacity with the courts on a case-to-case
basis. The presence of psychological incapacity depends upon
the facts of the case and it can be clearly deduced that the
in verbatim.
absence of definition was deliberately done because the
situations contemplated by the law vary from one case to
another. In the words of Justice Caguioa, the code should not
have so many definitions, because a definition straight-jackets
the concept and, therefore, many cases that should go under
it are excluded by the definition.
2. Psychological incapacity is not insanity or mental illness. It
refers to the inability of a party to the marriage to comply with
the essential marital obligations because of psychological
reason. It is neither a physical defect because a person who is
psychologically incapacitated is one who cannot perform the
essential marital obligations as he/she simply refuses to
perform these obligations although physically capable of
doing so due to psychological causes. It refers to lack of
appreciation of ones marital obligation and has nothing to
do with consent. An insane person does not know what he is
doing while a psychologically incapacitated person is aware of
what he is doing but he simply cannot perform his/her
essential marital obligations because of psychological
reasons. Psychological incapacity simply refers to the lack of
appreciation of ones marital obligation.
3. Psychological Incapacity has three essential characteristics
and they are: (1.) Juridical antecedent, (2.) Gravity, and (3.)
Incurability. For the defect of a party to the marriage to be
considered a form of psychological incapacity, it must already
be existing at the time of the celebration of the marriage
(Juridical antecedent). It must be a very serious defect
(Gravity), and it is not curable (Incurability). Thus, from the
foregoing elements it is quite clear that the intendment of the
law has been to confine the meaning of psychological
incapacity to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage.
4. This provision was lifted from Canon 1095 of the Canon
Law. Thus, the decisions of the matrimonial tribunal of the
Catholic Church involving psychological incapacity as a
ground to annul the marriage is greatly helpful and persuasive
to our civil courts. Although our courts are not bound by the
decisions of the matrimonial tribunal, said decision can be
used by our civil courts as a guide in the determination of the
existence of psychological incapacity.
5. A wife who turns out to be a nymphomaniac or a husband
who is homosexual is a good example of psychological
incapacity. Any form of inability of a party to perform the
essential marital obligations because of some psychological
causes is a ground to nullify the marriage under Article 36.
6. The action to declare the marriage void on the ground of
psychological incapacity can be filed even by the
incapacitated party. The law does not prohibit the guilty party
from bringing the action in court as a void marriage is not
ratifiable and the pari delicto rule will not apply here.
Moreover, a party who is declared psychologically
incapacitated by the court may still contract a second
marriage as this ground is a very personal and limited one. It
does not mean that just because a person is psychologically
incapacitated to perform his or her marital obligations with his
or her present spouse, he/she will also be psychologically
incapacitated with any other partner. This rule is best
illustrated in the case of Halili vs. Halili and Republic, G.R. No.
165424, June 9, 2009, where it was the petitioner who claims
that he is the one who is psychologically incapacitated. The
trial court granted the petition on the ground that petitioner is
suffering from a mixed personality disorder, particularly
dependent and self -defeating personality disorder. On appeal,

the Court of Appeals reversed the trial courts decision on the
ground that the totality of the evidence presented failed to
establish petitioners psychological incapacity. When the case
was elevated to the Supreme Court on certiorari under Rule
45, the Court affirmed the decision of the Court of Appeals
declaring the validity of the marriage. However, upon motion
for reconsideration filed, the Court reconsidered its previous
judgment and granted the motion. The Court gave much
weight to the testimony of the expert witness in granting the
petition.
7. During the trial of the case for declaration of nullity of
marriage on the ground of psychological incapacity, expert
testimonies of a psychologist or psychiatrist is not a
requirement for a declaration of psychological incapacity and
that it is not a condition sine qua non for such declaration
(Marcos vs. Marcos, G.R. no. 136490, October 19, 2000). The
Court may or may not accept the testimony of the
psychologist or psychiatrist. It may base its decision on the
totality of the evidence other than the findings of such expert
witness. However, in the case of Matias vs. Dagdag, G.R. No.
109975, February 9, 2001, the Supreme Court that expert
testimonies evaluating the behavioural pattern of the person
alleged to be psychologically incapacitated are extremely
helpful. Thus, although expert testimony is not required for
the court to decide the case, it will help the court a lot in the
resolution of the case.
8. So far, there are only few cases granted by the Supreme
Court under Article 36 of the Family Code. The first case is the
case of Chi Ming Tsoi vs. Court of Appeals, 266 SCRA 325,
where the Supreme Court said that the refusal of the husband
to have sex with his wife even if he is physically capable of
doing so is a manifestation of psychological incapacity to
warrant the declaration of nullity of marriage. The contention
of the husband that it was instead his wife who refuses to
have sex with him is of no moment, for even if it is true, the
action to declare the marriage void on the ground of
psychological incapacity can be brought by the party at fault.
The second is the case of Antonio vs. Reyes, G.R. No. 155800,
March 10, 2006, where the wifes defect of being a congenital
liar was considered by the Court as a form of psychological
incapacity. In this case, the Court also gave much weight to
the findings of the Matrimonial Tribunal of Manila, as affirmed
by the Roman Rota in Vatican, that the marriage is annullable
on the ground of psychological incapacity of a party. The more
recent case is the case of Te vs. Te, G.R. No. 161793, February
13, 2009, where the petitioner was found to be suffering from
dependent personality disorder while the respondent was also
suffering from narcissistic and anti-social personality disorder.
9. Moral damages cannot be recovered from a guilty
party in an action for declaration of nullity of marriage
on the ground of psychological incapacity. This is
because a psychologically incapacitated person is not aware
of his incapacity and therefore cannot be held answerable for
moral damages (Buenaventura vs. Court of Appeals, G.R.No.
127358, March 31, 2005).
10. A person who has been declared psychologically
incapacitated may still remarry. The reason is that, there
is no such thing as absolute psychological incapacity. It is
only relative, in the sense that one may be incapacitated with
respect to one partner, but not necessarily with respect to all.
11. In the following cases the Supreme Court ruled that there
is no psychological incapacity, to wit:
in verbatim.
- The first case was decided by the Supreme Court involving
Article 36, the case of Santos vs. Court of Appeals, G.R. No.
112019, Jan. 4, 1995, where the Supreme Court ruled that
failure of the wife to return home and communicate does not
constitute psychological incapacity.
- A mere showing of irreconcilable differences and
conflicting
personalities
in
no wise constitute
psychological incapacity. (Choa vs. Choa, G.R. No. 143376,
November 26, 2002) .
- Disordered personality is not a ground for declaring a
marriage void. Sexual Infidelity or perversion and
abandonment do not constitute psychological incapacity
(Dedel vs. Court of Appeals, G.R. No. 151867, January 29,
2004).
- An unsatisfactory marriage is not a null and void
marriage. Whether or not psychological incapacity exists
depends crucially on the facts of the case (Siayngco vs.
Siayngco, G.R. No. 158896, October 27, 2004).
- The rule on psychological incapacity applies even if
the spouse is a foreigner. The foreigner husbands act of
abandonment is doubtlessly irresponsible but it was never
alleged nor proven to be due to some kind of psychological
illness (Republic vs. Lolita Quintero-Hamano, G.R. No. 149498,
May 20, 2004).
12. The jurisprudential guidelines in determining the existence
of psychological incapacity was laid down by the Supreme
Court in the case of Republic vs. CA and Molina, G.R. No.
108763, Feb. 13, 1997, and they are as follows:
a.) The burden of proof to show the nullity of marriage
belongs to the plaintiff.
b.) The root cause of psychological incapacity must be
medically or clinically identified, alleged in the complaint,
sufficiently proven by experts, clearly explained in the
decision.
c.) The incapacity must be proven to be existing at the time of
the celebration of the marriage, although it becomes manifest
only after the celebration ofmarriage.
d.) The incapacity must be shown to be medically or clinically
permanent or incurable.
e.) The illness must also be grave enough to prevent the party
from assuming the essential marital obligations.
f.) The essential marital obligations must be those mentioned
in Title III (Articles 68 to 71) of the Family Code, as well as
Articles 220, 221 and 225.
g.) The interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines,
while not controlling or decisive should be given great respect
by our courts.
h.) The trial court must order the prosecuting attorney or
fiscal and the solicitor General to appear as counsel for the
State. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement
or opposition, as the case may be, to the petition. The

Solicitor General, along with the prosecuting attorney, shall
submit to the court such certification within fifteen (15) days
from the date the case is deemed submitted for resolution of
the court. The Solicitor General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon
1095.
13. The decision of the National Appellate Matrimonial
Tribunal, to be given weight and respect by our courts,
must be anchored on Canon 1095, par. 3 which is the
basis of Article 36. Thus, if the decision of the said
tribunal is based on paragraph 2 of Canon 1095, the
Court should not give weight to it (Najera vs. Najera, G.R.
No. 164817, July 3, 2009).
14. The requirement found in paragraph h of the guidelines in
the Molina doctrine relative to the certification of the OSG
before a decision can be handed down has already been
dispensed with by A.M. No. 02-11-10-SC. The said rule, as a
remedial measure, removed the mandatory nature of an OSG
certification and may be applied retroactively to pending
matters. Thus, cases pending at the time of the passage of
A.M. No. 02-11-10-SC on March 15, 2003, need not have the
required certification from the OSG before the court will
decide (Rumbaua vs. Rumbaua, G.R. No. 166738, August 14,
2009).
15. In the very recent case of Edward Kenneth Ngo-Te vs.
Rowena Yu- Te, G.R. No. 161793, February 13, 2009, the
Supreme Court revisited the origin of Article 36 and the
concept of Psychological Incapacity as lifted from the canon
law. The Court finds that the resiliency with which the concept
should be applied and the case-to-case basis by which the
provision should be interpreted, as so intended by the
framers, had, somehow, been rendered ineffectual by the
imposition of a set of strict standards in the Molina case. The
Court re-examined the Molina doctrine and said: In hindsight,
it may have been inappropriate for the Court to impose a rigid
set of rules, as the one in Molina, in resolving all cases of
psychological incapacity. Understandably, the Court was then
alarmed by the deluge of petitions for the dissolution of
marital bonds, and was sensitive to the OSGs exaggeration of
Article 36 as the most liberal divorce procedure in the world.
The unintended consequences of Molina, however, has taken
its toll on the people who have to live with the deviant
behaviour, moral insanity and sociopathic personality
anomaly, which, like termites, consume little by little the very
foundation of their families, our basic institutions. Far from
what was intended by the Court, Molina doctrine has become
a strait-jacket, forcing all sizes to fit into and be bound by it.
Wittingly or unwittingly, the Court, in conveniently applying
Molina, has allowed diagnosed sociopaths, schizophrenics,
nymphomaniacs, narcissists and the like, to continuously
debase and pervert the sanctity of marriage. Ironically, the
Roman Rota has annulled marriages on account of the
personality disorders of the said individuals. Thus, in the said
case, the Supreme Court declared both parties psychologically
incapacitated. Petitioner is suffering from dependent
personality disorder, and respondents, that of the narcissistic
and antisocial personality disorder. Both parties being afflicted
with grave, severe and incurable psychological incapacity,
their marriage is thus null and void.
16. Taken from the decisions of the Roman Rota, applying
Canon 1095, the following are considered as various cases of
psychological disorders, to wit:
in verbatim.
a.) Hypersexuality-Nymphomania
b.) Hypersexuality-Satyriasis
c.) Homosexuality
d.) Lesbianism
f.) Schizophrenia
g.) Affective Immaturity
h.) Anti-Social Personality Disorder
i.) Dependent Personality Disorder
j.) Vaginismus or Psychic impotence
k.) Sexual Disorder
l.) Psychoneurosis
m.) Lack of Interpersonal Integration
n.) Immature Personality
o.) Obsessive-Compulsive Personality
p.) Frigidity
q.) Alcoholism and Gambling
r.) Liar, cheat and swindler
s.) Sexual Neurosis
t.) Hysterical Personality
u.) Psychic Immaturity
17. The Court in Te vs. Te clarified, thus, no case is on all
fours with another case as far as psychological incapacity as
a ground for declaring the nullity of marriage is concerned.
Lest it be misunderstood, we are not suggesting the
abandonment of Molina in this case. We simply declare that,
as aptly stated by Justice Dante O. Tinga in Antonio vs. Reyes ,
there is need to emphasize other perspectives as well which
should govern the disposition of petitions for declaration of
nullity of marriage under Article 36. At the risk of being
redundant, we reiterate once more the principle that each
case must be judged, not on the basis of a priori assumptions,
predilictions or generalizations but according to its own facts.
And, to repeat for emphasis, court should interpret the
provision on a case-to-case basis; guided by experience, the
findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals.
18. Although in Marcos vs. Marcos, G.R. No. 136490, Oct. 19,
2000, the Supreme Court ruled that it is not necessary to
present an expert witness, the Court ruled in Te vs. Te that the
presentation of an expert testimony is very important. It
added that, by the very nature of cases involving the
application of Article 36, it is logical and understandable to
give weight to the expert opinions furnished by psychologists
regarding the psychological temperament of parties in order
to determine the root cause, juridical antecedence, gravity
and incurability of the psychological incapacity. Courts must
not discount but, instead, must consider as decisive evidence
the expert opinion on the psychological and mental
temperaments of the parties. The Supreme Court even finds it
fitting to suggest the inclusion in the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, an option for the trial judge to refer the case to a
court-appointed psychologist/expert for an independent
assessment and evaluation of the psychological state of the
parties. This will assist the courts, who are no experts in the
field of psychology, to arrive at an intelligent and judicious
determination of the case.
19. The application of the Molina Doctrine to cases that were
filed before the said doctrine was promulgated by the
Supreme Court in 1997 is not contrary to the principle of stare
decisis. Citing the cases of Pesca vs. Pesca and Antonio vs.
Reyes, the Court ruled that the interpretation or construction
of a law by courts constitutes a part of the law as of the date
the statute is enacted. It is only when a prior ruling of this
court is overruled, and a different view is adopted, that the
new doctrine may have to be applied prospectively in favor of
parties who have relied on the old doctrine and have acted in
good faith, in accordance therewith under the familiar rule of
lex prospicit, non respicit. The Court clarified that the Molina
doctrine was not abandoned by the Ting vs. Ting case as it
merely declared in the said case that, in hindsight, it is
inappropriate for the Court to impose a rigid set of rules, as
the one in Molina, in resolving all cases of psychological
incapacity. We said that instead of serving as a guideline,
Molina unintentionally became a straightjacket, forcing all
cases involving psychological incapacity to fit into and be
bound by it, which is not only contrary to the intention of the
law but unrealistic as well, because with respect to
psychological incapacity, no case can be considered as on all
fours with another. Coming now to the main issue, the Court
finds the totality of evidence adduced by respondent
insufficient to prove that petitioner is psychologically unfit to
discharge the duties expected of him as a husband. In this
case, respondent failed to prove that petitioners defects were
present at the time of the celebration of their marriage.
(Benjamin Ting vs. Carmen Velez-Ting, G.R. No. 166562, March
31, 2009).
20. In the case of Azcueta vs. Republic and C.A., G.R. No.
180668, May 26, 2009, the Supreme Court declared the
respondent husband psychologically incapacitated because of
his Dependent Personality Disorder. The Court reinstated
the ruling of the RTC finding the respondent psychologically
incapacitated considering the totality of evidence presented
clearly show that respondent failed to comply with his marital
obligation. Citing the case of Te vs Te, the Court reiterated its
pronouncement that: in dissolving marital bonds on account
of either partys psychological incapacity, the Court is not
demolishing the foundation of families, but it is actually
protecting the sanctity of marriage, because it refuses to
allow a person afflicted with a psychological disorder, who
cannot comply with or assume essential marital obligations,
from remaining in that sacred bond. Xxx. Let it be noted that
in Article 36, there is no marriage to speak of in the first
place, as the same is void from the very beginning. To indulge
in imagery, the declaration of nullity under Article 36 will
simply provide a decent burial to a stillborn marriage.
(emphasis ours)
21. In Renato Reyes So vs. Valera, G.R. No. 150667, June 5,
2009, the Court denied the petition and stated that: Our own
examination of the psychologists testimony and conclusions
leads us to conclude that they are not sufficiently in-depth
and comprehensive to warrant the conclusion that a
psychological incapacity existed that prevented the
respondent from complying with the essential marital
obligations of marriage. The facts on which the psychologist
based her conclusions were all derived from statements by
the petitioner whose bias in favor of his cause cannot be
doubted.
22. In the following recent decisions, the Supreme Court did
not consider the presence of psychological incapacity, to wit:
The testimony of the psychologist that one of the parties was
suffering from borderline personality disorder as manifested
by his being a Mamas Boy did not constitute sufficient
evidence of that partys condition. The diagnosis was only
based on interviews with petitioning spouse and that the
psychologist did not actually hear, see and evaluate the
respondent. Her testimony constituted hearsay. Furthermore,
the psychologist failed to explain how such a personality
disorder made Jordan psychologically incapacitated and to
prove that the same is so grave and permanent. In any case,
the alleged incapacity was not shown to be so grave and
permanent (Jordan Chan Paz vs. Jeanice Paz, G.R. No. 166579,
in verbatim.
(Feb.18, 2010).The witness global conclusion was not
supported by psychological tests properly administered by
clinical psychologists specifically trained in the tests use and
interpretation. The supposed personality disorders of the
parties, considering that such diagnosis were made, could
have been fully established by psychometric and neurological
tests which are designed to measure specific aspects of
peoples intelligence, thinking, or personality (Edward Lim vs.
Ma. Cheryl Lim, G.R. No. 176464, (Feb. 24, 2010).
Respondents alleged sexual infidelity, emotional immaturity
and irresponsibility do not constitute psychological incapacity
within the contemplation of the Family Code as the
psychologist failed to identify and prove the root cause
thereof or that the incapacity was medically or clinically
permanent or incurable (Ligeralde vs. Patalinghug, G.R. No.
168796, April 15, 2010). Failure to manage the familys
finances resulting in the loss of the house and lot intended to
be their family residences is not psychological incapacity. It is
still essential although from sources other than the
respondent spouse to show his or her personality profile, or
its approximation, at the time of marriage; the root cause of
the inability to appreciate the essential obligations of
marriage; and the gravity, permanence and incurability of the
condition (Ricardo Toring vs.Teresita Toring, G.R. No. 165321,
August 3, 2010).
23. However, in the case of Ma. Socorro C. Reyes vs. Ramon
Reyes, G.R. No. 185286, August 18, 2010, the Supreme Court
ruled that lack of personal examination and interview of the
respondent, or any person diagnosed with personality
disorder, does not per se invalidate the testimonies of the
doctors. Neither do their findings automatically constitute
hearsay that would result in their exclusion as evidence. The
two clinical psychologists and a psychiatrists assessment
were not based solely on the narration or personal interview
of the petitioner but also on other informants such as
respondents own son, siblings and in-laws, and sister-in-law
who all testified on their own observations of respondents
behavior and interactions with them. In the instant case,
respondents pattern of behavior manifests an inability, nay, a
psychological incapacity to perform the essential marital
obligations as shown by his: (1.) sporadic financial support;
(2.) extra-marital affairs; (3.) substance abuse; (4.) failed
business attempts; (5.) unpaid money obligations; (6.)
inability to keep a job that is not connected with the family
business; and (7.) criminal charges of estafa. In fine, we find
ample basis to conclude that respondent was psychologically
incapacitated to perform the essential marital obligations at
the time of his marriage to petitioner.
24. Quarrels, financial difficulties, womanizing of petitioner are
not psychological incapacities. The testimony of the
psychiatrist is found to be general, not in-depth, does not
establish link between actions of party and his supposed
psychological incapacity (Rosalino Marable vs. Myrna Marable,
G.R. No. 178741, January 17, 2011). Also, sexual infidelity of
the wife does not per se constitute psychological incapacity if
it is not shown that it already existed before the marriage
(Jose Ochoa vs. Bona Alano, G.R. No.167459, January 26,
2011).
25. For psychological incapacity of a spouse to serve as a
ground for annulling a marriage, the incapacity must consist
of the following: (a.) a true inability to commit oneself to the
essentials of marriage; (b.) this inability to commit oneself
must refer to the essential obligations of marriage: the
conjugal act, the community of life and love, the rendering of
mutual help, the procreation and education of offspring; and
(c.) the inability must be tantamount to a psychological
abnormality. It is not enough to prove that a spouse failed to

meet his responsibility and duty as a married person; it is
essential that he must be shown to be incapable of doing so
due to some psychological illness. Moreover, even assuming
that respondents fault is psychological incapacity, it has not
been established that the same existed at the time of the
celebration of the marriage (Cynthia E. Yambao vs. Republic of
the Philippines and Patricio E. Yambao, G.R. No. 184063,
VOID MARRIAGES - INCESTUOUS

January 24, 2005
C. Void because Incestuous:
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
degree; and
ascendants
and
descendants
of
any
2) Between brothers and sisters, whether of full or

half-blood. (81a)
NOTES
1. The reasons why a marriage between parties who are
closely related by
blood is prohibited by law are (1.) It would tend to create
confusion of rights and duties incident to family relations; (2.)
It is abhorrent to the nature, not only of civilized men, but of
barbarous and semi-civilized people; and (3.) Such
intermarriages very often result in deficient and degenerate
offspring, which, if occurring to any great extent, would
amount to a serious deterioration of the race.
VOID MARRIAGES AGAINST PUBLIC POLICY

2. Marriages of persons who are closely related by blood in
the direct line, whether legitimate or illegitimate, is
incestuous. Thus, a marriage between grandfather and
granddaughter, between parents and child and, between
brothers and sisters, is void. Marriage between uncles and
niece or aunties and nephews is not incestuous but it is still
prohibited under the next article.
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; Between
parents-in-law and children-in-law;
3) Between the adopting parent and the adopted child;
4) Between the surviving spouse of the adopting
parents and the adopted child;
5) Between the surviving spouse of the adopted child
and the adopter;
6) Between an adopted child and a legitimate child of
in verbatim.
the adopter;
7) Between the adopted children of the same adopter;
8) Between parties where one, with the intention to
marry the other, killed that other person s spouse, or
his or her own spouse.
1. The nullity of the marriage under this article hinges

primarily on the relationship of the parties to the marriage.
These marriages are considered against public policy because
they do not serve the fundamental objective of the state
which is to nurture a stable family unit that can effectively be
the foundation of society.
2. Marriage between first degree cousins is no longer
considered incestuous now but they are against public policy.
A first degree cousin is your relative up to the fourth civil
degree and is clearly prohibited by paragraph 1 of this article.
3. The prohibition under this article hinges on the affinity
relation, adoptive relation, and the criminal motive to dispose
of a spouse in order to enable the surviving spouse to marry.
Marriages between step-parents and step-children and those
between parents-in-law and children-in-law are prohibited
because the parties here should treat each other as real
parents and children even if their relationship is only by
affinity. It is said that once you get married, you and your
spouse become one, such that the close relatives of your
spouse should be treated by you as your own. These are the
only marriages by affinity prohibited by the Family Code.
Marriage between step-brother and step-sister is not
prohibited and is therefore valid.
4. Adoption creates an artificial relation of parent and child
between the adopter and the adoptee. Thus, an adopted child
cannot marry his adopter, the surviving spouse of his adopter,
the legitimate children of his adopter, and the adopted
children of his adopter. The adopter cannot also marry the
surviving spouse of his adopted.
5. The enumeration of void marriages under Article 38 is
exclusive, such that those that do not fall under the said
enumeration are considered valid. The following marriages are
valid:
a.) Between adopted and the parents of his adopterb.)
Between adopted and the illegitimate children of his adopter
c.) Between adopter and the relatives of his adopted.d.)
Between the adopted and the former spouse of his adopter
OR
between the adopter and the former spouse of his adopted.
e.) Between step-brother and step-sister.
6. A marriage between the killer and the surviving spouse of
his victim or between the spouse who killed his or her own
spouse in order to marry another is prohibited by law. The
killing must be animated by the intention to marry another
person. No prior criminal conviction by the court is required by
the law. Mere preponderance of evidence is required to prove
the killing.
Prescriptive period:
Art. 39- The action or defense for the declaration of

absolute nullity of a marriage shall not prescribe. (n)
(Amended by Executive Order Number 227 dated July
17, 1987 and further amended by Republic Act No.
8533 dated February 23, 1998)
NOTES
1. There is no prescriptive period for an action to declare the
marriage void because a null and void marriage produces no
legal effect, it being non-existent. In fact, the judicial decree
merely confirms the voidness, non-existence, or incipient
invalidity of the marriage.
2. However, if the ground for the voidness of the marriage is
psychological incapacity under Article 36 of the Family Code,
there used to be a prescriptive period of ten years from the
effectivity of the Code or until August 1, 1998, but only if the
marriage was solemnized before the Family Code took effect.
If the marriage was celebrated after August 3, 1988, there is
no prescriptive period. This provision, however, was amended
by Republic Act 8533 by deleting the 10 year prescriptive
period for marriages solemnized before the effectivity of the
Family Code. So, now there is no more prescriptive period to
declare the marriage void on the ground of psychological
incapacity even if the marriage is solemnized before August 3,
1988.
3. Only the husband or the wife can file an action to declare
their marriage void (see: Supreme Court Resolution A.M. No.
00-11-01-SC). Even the party who is at fault may bring the
action to nullify the marriage as the pari delicto rule will not
apply to nullity cases. The rule enunciated in the case of
Cojuangco vs. Romillo, 167 SCRA 751, that a father can file a
case to declare the nullity of the bigamous marriage entered
into by his daughter with a married man, is no longer
controlling in the light of the provision of SCR A.M. No. 02-1110-SC which took effect on March 15, 2003, a copy of which is
hereto attached as Appendix A.
Void subsequent marriage:
Art. 40- The absolute nullity of a previous marriage
may be invoked for purposes of remarriage on the
basis solely of a final judgement declaring such
previous marriage void. (n)
NOTES
1. When a marriage is void, a party to that marriage can
contract a
subsequent marriage only after he/she has the previous
marriage judicially declared null and void. A subsequent
marriage contracted without having the first marriage
declared by the court as null and void is also void ab initio
under Article 40 of the Family Code. It is generally expedient
that the nullity of the marriage should be ascertained and
declared by the court of competent jurisdiction for the sake of
good order of society and for the peace of mind of all persons
concerned. One should not put the law in his hands and
decide for himself the nullity of his marriage. He should let the
court declare the nullity of his marriage before he can
contract another marriage.
2. The rule on whether or not there is a need for a judicial
declaration of nullity of a void marriage before one can
in verbatim.
contract another marriage has been swinging like a
pendulum. At one time the Supreme Court ruled that there is
no need but in another time the Court said there is a need. In
the case of People vs. Mendoza and the case of People vs.
Aragon decided in 1954 and 1957 respectively, the Supreme
Court ruled that there was no need for a judicial declaration of
nullity of a void marriage. Later on, in the case of Gomez vs.
Lipana (33 SCRA 614) and Consuegra vs. GSIS (37 SCRA 315)
decided in 1970 and 1971 respectively, the Court changed its
stand and ruled that judicial declaration of nullity of marriage
is necessary before one can contract a subsequent marriage.
However, in the case of Odayat vs. Amante (77 SCRA 338)
decided in 1977, the Supreme Court returned to the old rule
enunciated in the Mendoza and Aragon cases that judicial
declaration of nullity is not necessary. But, in the case of
Wiegel vs. Sempio Diy (143 SCRA 499) decided in August 19,
1986, the Court went back to the rule in Gomez vs. Lipana
and Consuegra vs. GSIS, only to be abandoned later by the
case of Yap vs. Court of Appeals ( 145 SCRA 229) decided on
October 28, 1986. This flip- flopping of the Supreme Court has
prompted the framers of the Family Code to incorporate
Article 40 in order to put to rest the controversy brought
about by the conflicting decisions of the Supreme Court. So,
now it is settled that if the marriage is void, the only way that
the parties to that void marriage can marry again is to have it
declared void by the court first.
3. Article 40 of the Family Code restated the rule that even if
the marriage is void, there is a need to have it declared void
by the court, for it is solely on the basis of that final judgment
that a party can remarry. In the case of Roberto Domingo vs.
Court of Appeals, et al., G.R. No. 104818, September 17,
1993, the Supreme Court clarified the meaning of Article 40
by saying that the judicial declaration of nullity of marriage is
not solely for the purpose of remarriage as it can also be
invoked for other purposes such as in case of an action for
liquidation, partition, distribution and separation of property
between the spouses, as well as an action for the custody and
support of their common children and the delivery of the
latters presumptive legitime. The word solely qualifies the
term judgment. Thus, it means that for purposes of
remarriage, the nullity of a previous marriage can only or
solely be established by a final judgment of the court
declaring such marriage void.
4. When the first marriage is void and a party to that marriage
contracted a second marriage without obtaining a judicial
declaration of nullity of the first marriage, there is no doubt
that the second marriage is null and void under Article 40.
But, is the said party guilty of bigamy? The Court of Appeals in
the case of People vs. Cobar, CA-G.R. No. 19344, November
10, 1997, answered this question in the negative. According to
the Court of Appeals, there is no bigamy because of the
absence of the first and fourth element of bigamy, which are
that the first marriage must be valid and that the second
marriage must have all the essential requisites for validity. A
void bigamous marriage therefore contemplates of a situation
where the second marriage was contracted at the time when
the first marriage , which is valid in all respects, was still
subsisting. Hence, the first marriage must not be void but
valid or at least annulable.
5. However, in the case of Vincent Paul Mercado vs. Consuelo
Tan, G.R. No. 137110, August 1, 2000 , and Nicdao Carino vs.
Carino, G.R. No. 132529, February 2, 2001, the Supreme Court
ruled that a person who contracts a subsequent marriage
without having his first marriage judicially declared void is
guilty of bigamy. This ruling is consistent with the
pronouncement in Terre vs. Terre, 211 SCRA 6, where the
Court ruled that for the purpose of determining whether a

person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio
is essential. The reason behind the rule that even if the
marriage is void, there is a need to have it declared void is the
fact that the parties to the marriage cannot decide for
themselves the invalidity of their marriage. This is especially
so that no less than the Constitution seeks to preserve the
sanctity of the marriage, it being the foundation of the family.
This rule was reiterated in the more recent case of Myrna
Antone vs. Leo Beronilla, G.R. No. 183824, Dec. 8, 2010, when
the Court ruled that declaration of nullity of marriage on the
ground of psychological incapacity under Article 36 will not
save the respondent from the crime of bigamy if the second
marriage was contracted before the declaration of nullity of
the first marriage.
6. In the case of Morigo vs. People, the petitioner was found
by the trial court guilty of bigamy for contracting a second
marriage without having his first marriage judicially declared
void. During the pendency of the bigamy case, petitioner (Mr.
Lucio Morigo) filed a case for declaration of nullity of his first
marriage on the ground of absence of marriage ceremony.
While the appeal of his conviction in the bigamy case was
pending in the Court of Appeals, the Family Court declared his
first marriage null and void due to the absence of marriage
ceremony. The decision became final as no appeal was
interposed by the State. The Court of Appeals eventually
affirmed his conviction for bigamy prompting him to raise the
matter to the Supreme Court by way of Certiorari. In reversing
the decision of the Court of Appeals, the Court ruled that no
bigamy was committed as not all the elements of the crime of
bigamy is present. Citing the case of Bobis vs. Bobis, the
Court ruled that there are four elements of bigamy, and they
are as follows: (1.) the offender has been legally married, (2.)
the first marriage has not been legally dissolved, (3.) he
contracts a subsequent marriage, and (4.) the subsequent
marriage would have been valid had it not been for the
existence of the first. In the instant case of Morigo, the Court
finds no bigamy because there was no first marriage to speak
of.The declaration of nullity of the first marriage by the Family
Court, retroacts to the time of the celebration of the said
marriage. Thus, when petitioner contracted the second
marriage, there was no prior valid subsisting marriage.
Petitioner, legally speaking, was never married to his first wife
as no marriage really took place due to the absence of
marriage ceremony (Lucio Morigo vs. People of the
Philippines, G.R. No. 145226, February 6, 2004).
7. In Mercado vs. Tan, the first marriage was void because of
the absence of a marriage license. In the Morigo case, the first
marriage was void because of the absence of marriage
ceremony. However, in the Mercado case the Court ruled that
there is a need for the judicial declaration of nullity of the first
marriage; otherwise, the accused may be convicted of
bigamy. But, in the Morigo case, the Court said there is no
need to have the first marriage declared void as in the eyes of
the law, the marriage never existed. What then is the
difference between the two? The observation of this author is
that if the nullity of marriage is anchored on the absence of
marriage ceremony, then it is as if no marriage took place or
that there is no marriage at all. However, if the nullity is based
on absence of a valid marriage license, there exists a
marriage but it is void. In other words, what is contemplated
by Article 40 of the Family Code as the void marriage that
must be declared void first before one can contract a
subsequent marriage is one that must exist although it is void.
Declaration of Presumptive Death:Art. 41- A marriage
in verbatim.
contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the
absent spouse was already dead. In case of
disappearance where there is danger of death under
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 purposes of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided for in this Code for the declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
(83a)
Art. 42- The subsequent marriage referred to in the
preceding Article shall be automatically terminated by
the recording of the affidavit 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 net
profits of the community property shall be forfeited in
favour 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 disqualified 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 favour of the
other are revoked by operation of law. (n)
NOTES
1. If a spouse had been absent for four consecutive years and
the present spouse had a reasonable and well founded belief
that the absent spouse was already dead, he/she may
contract a second marriage provided that he/she first obtain a
judicial declaration of presumptive death of the absent
spouse. The four year period before one can file the petition
for judicial declaration of presumptive death is shortened to
two years if the disappearance of the spouse is under any of
the circumstances of great danger of death as set forth in
Article 391 of the Civil Code. These circumstances are as
follows: (1.) when the absent spouse was on a vessel and the
same was lost during a sea voyage and he has not been heard
of for two years since the loss or when the absent spouse was
on an airplane which was missing and such spouse was not
heard of for two years since the loss of the airplane; (2.) when
the absent spouse who was in the armed forces has taken
part in the war and has been missing for two years; and (3.)
when the absent spouse has been in danger of death under
other circumstances.
2. If the absent spouse turns out to be alive, then the
subsequent marriage contracted by the present spouse will be
terminated but only upon the execution of the affidavit of
reappearance by the reappearing spouse or any of the
interested party. The said affidavit of reappearance shall be
recorded in the Office of the Local Civil Registrar of the place
where the present and the subsequent spouse resides. The
fact that the absent spouse is still alive renders the
subsequent marriage a bigamous but valid marriage. It is
bigamous because the first marriage is still subsisting but
valid because of the judicial declaration of presumptive death.
Thus, if a spouse had been absent for many years (4 or 2
years as the case may be), the only way by which the present
spouse can marry again legally is to have him/her declared
presumptively dead by the court; otherwise, the subsequent
marriage will be void.
3. The presumption that the absent spouse must have already
been dead must be anchored on well founded belief. In the
case of Republic of the Philippines vs. Gregorio Nolasco, 220
SCRA 20, the Supreme Court discussed the meaning of the
term well founded belief as the exercise of that degree of due
diligence required in searching for a missing spouse. In that
case, the Court denied the petition of a Filipino seaman to
declare his wife presumptively dead for his failure to conduct
a search for his missing wife with such diligence to give rise to
a well- founded belief that she was dead. In the other case
of Republic vs. Court of Appeals, G.R. No. 159614, December
9, 2005, the Supreme Court denied the petition because the
person seeking a judicial declaration presented only the
Barangay Captain, but did not present the persons from whom
he allegedly made inquiries, and did not even make inquiries
with his parents-in-law who knew of his wifes abandonment
of the conjugal abode. The Court ruled that petitioner failed to
prove a well-founded belief that the wife was already dead.
4. The Civil Code of the Philippines provides the general rule
that no judicial declaration of presumptive death is required
as such presumption arises from law. Article 390 and 391 of
the Civil Code has already created the presumption of death
in verbatim.
when a person has been absent for seven years, it being
unknown whether or not the absentee still lives. The said
absentee shall be presumed dead for all purposes except for
those of succession, in which case, the absentee shall not be
presumed dead till after an absence of ten years. The period
is shortened to four years (now two years in the Family Code)
if the disappearance is in danger of death as stated in Article
391; or to five years if the disappearing spouse is already 75
years of age. The judicial declaration of presumptive death
under Article 41 of this Code is mandatorily required by law
only for the purpose of capacitating the present spouse to
remarry. Thus, the judicial declaration of presumptive death
will protect the spouse from being charged of bigamy in case
the absent spouse will reappear.
5. The requirement that a petition for judicial declaration of
presumptive death of a spouse must be anchored on a well
founded belief that the absence spouse must have already
been dead will apply only if the marriage took place after the
effectivity of the Family Code on August 3, 1988. When the
marriage of the present and disappearing spouse was
celebrated before the effectivity of the Family Code and the
disappearance also happened before 1988, the Civil Code will
apply. Under Article 390 of the Civil Code, judicial declaration
of presumptive death is not required for purposes of
remarriage. The declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose to
enable the taking of the necessary precautions for the
administration of the estate of the absentee. For celebration
of civil marriage, however, the law only requires that the
former spouse has been absent for seven consecutive years
at the time of the second marriage, that the spouse present
does not know his or her former spouse to be living, that such
former spouse is generally reputed to be dead and the spouse
present so believes at the time of the celebration of the
marriage.
6. When the husband and the wife were married in 1971,
then, the husband disappeared in 1975, and the wife did not
anymore hear any news from him, the subsequent marriage of
the wife with another man in 1985 is valid. In fact, there is no
more need for the wife to file a petition to declare her first
husband presumptively dead before contracting the second
marriage as that is not required under the Civil Code. The
validity of the subsequent marriage is determined by the law
prevailing at the time of the marriage. The Family Code,
particularly Article 41 thereof, cannot be applied retroactively
by requiring the spouse to first obtain a judicial declaration of
presumptive death before contracting the subsequent
marriage. To do so would be to impair a vested right already
acquired by a party under the former law. Considering that it
is the Civil Code and not the Family Code that will apply here,
proof of well founded belief is not required (Angelita Valdez
vs. Republic, G.R. No. 180863, Sept. 8, 2009).
7. The decision of the court declaring a spouse presumptively
dead under Article 41 of the Family Code is unappealable and
immediately executory as it falls under the Summary Judicial
Proceedings in the Family Law (Republic vs. Bermudez-Lorino,
G.R. No. 160258, Jan. 19, 2005). There is no reglementary
period to perfect an appeal, precisely because judgment
rendered thereunder, by express provision of the law (Art.
247), are immediately final and executory. As a matter of
course, it follows that no appeal can be had of the trial courts
judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of
the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question
abuse of discretion amounting to lack of jurisdiction. Such
petition should be filed in the Court of Appeals in accordance

with the Doctrine of Hierarchy of Courts. From the decision of
the Court of Appeals, the losing party may then file a petition
for review on certiorari under Rule 45 of the Rules of Court
with the Supreme Court. This is because the errors which the
court may commit in the exercise of jurisdiction are merely
errors of judgment which are the proper subject of an appeal
(Republic of the Philippines vs. Ferventino Tango, G.R. No.
161062, July 31, 2009).
8. The recording of the affidavit of reappearance is the
operative act that terminates the subsequent marriage. The
affidavit shall be executed by the reappearing spouse or any
interested party such as the parents of both spouses, their
children, the present spouse and even the subsequent spouse
of the present spouse. If no affidavit of reappearance is filed
then the subsequent marriage remains validly subsisting. If an
affidavit of reappearance is filed then the subsequent
marriage is automatically terminated but this is without
prejudice to the outcome of any judicial proceeding
questioning such reappearance.
9. When the subsequent marriage is terminated by the
reappearance of the absent spouse, the conjugal partnership
or the absolute community of property regime that governs
the said marriage shall also be terminated and dissolved.
Article 43 enumerates the effects of the termination of such
marriage as follows: (1.) the children of the subsequent
marriage conceived prior to its termination shall be
considered legitimate; (2.) the property relation of the parties,
be it absolute community or conjugal partnership, shall be
dissolved and liquidated. The party who contracted the
marriage in bad faith shall forfeit his/her share in the net
profits community property in favor of their common children,
or if there are none, the children of the guilty spouse by a
previous marriage or in default thereof, the innocent spouse.
(3.) donations by reason of marriage made by the innocent
spouse in favour of the guilty spouse are revoked by operation
of law; (4.) the designation of the guilty spouse as the
beneficiary of the insurance policy of the innocent spouse
may be revoked by the latter even if the designation be
stipulated as irrevocable; (5.) the party who contracted the
subsequent marriage in bad faith shall be disqualified to
inherit from the innocent spouse.
10. If both parties to the subsequent marriage are in bad faith,
the said marriage shall be void ab initio and all donations
propter nuptias and testamentary disposition made by one in
favour of the other are revoked by operation of law. Since the
marriage is void, then there is no dissolution and liquidation of
the conjugal partnership or absolute community as the
property relation of the parties will be governed by coownership under Article 147 or 148 of the Family Code.
11. Declaration of presumptive death by the Regional Trial
Court cannot be overturned or disregarded by the Social
Security Commission on the ground that the first wife is still
alive and the deceased husband, whose death benefit is in
issue, is aware of the fact that his first wife is still alive when
he filed the petition for judicial declaration of presumptive
death. The subsequent marriage entered into after the judicial
declaration of presumptive death can only be terminated
when the first spouse files an affidavit of reappearance which
did not happen here (SSS vs. Jarque Vda. De Bailon, G.R. No.
165545, March 24, 2006).
VOIDABLE MARRIAGE H. Grounds for Annulment of
Marriage:
in verbatim.
Art. 45- A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
marriage it cannot be used as a ground to annul the marriage.

These grounds are as follows:
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;
a.) Absence of parental consentb.) Unsoundness of the mind

of a partyc.) Consent was obtained by fraudd.) Consent was
obtained by force, intimidation or undue influence e.) Physical
Incapacity to consummate the marriage
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 influence, 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 incurable; or
6) That either party was afflicted with a sexually
transmissible disease found to be serious and appears
to be incurable. (85a)
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
judgement 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
her husband;
3) Concealment of sexually transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
4) Concealment of drug addiction, habitual alcoholism,
or homosexuality or lesbianism existing at the time of
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. (86a)
f.) Sexually transmissible disease that is both serious and

incurable
2. Not all kinds of fraud or deceit can invalidate the marriage.
It must only refer to the four types of fraud enumerated in
Article 46 of the Code. To constitute fraud, there must be
concealment at the time of the marriage of the following
facts:
a.) Previous conviction of a crime involving moral turpitude;b.)
Pregnancy of the wife by a man other than her husband;c.)
Sexually transmissible disease regardless of its nature;d.)
Drug addiction, habitual alcoholism, homosexuality, or
lesbianism;
3. No other misrepresentation or deceit can be a ground for
the annulment of marriage. The ground for annulment of
marriage is exclusive, thus, only those specified in Articles 45
and 46 of the Family Code shall be considered.
4. Non-disclosure of previous conviction must refer to crimes
involving moral turpitude. It is not necessary for a spouse to
verify first before the marriage whether or not the other
spouse has a previous conviction as the burden is on the
convicted party to divulge his criminal record. Concealment
by the wife of her pregnancy by a man other than her
husband could be appreciated as fraud only when
concealment of the pregnancy is still very possible. Thus, a
husband could no longer claim concealment of pregnancy if
his wife was already seven months pregnant at the time of the
marriage as her physical condition is already apparent to the
man during marriage (Buccat vs. Buccat, 72 Phil. 19).
However, if the wife is only four months pregnant at the time
of the marriage, and that she is naturally plump or fat,
concealment is still very much possible as at that stage her
pregnancy is not yet readily apparent (Aquino vs. Delizo, 109
Phil. 21).
5. Vitiated consent, as a ground to annul the marriage, must
be proven by preponderance of evidence which may include
the actuation of the parties previous to the marriage. There is
intimidation when one of the contracting parties is compelled
by a reasonable and well-founded fear of an imminent and
grave evil upon his person and property, or upon the person
or property of his spouse, descendants or ascendants, to give
his consent. To determine the degree of intimidation, the age,
sex and condition of the person shall be borne in mind (Article
1335 of the Civil Code).
NOTES
6. The claim of the petitioner, who is a security guard, that his

consent to the marriage was vitiated because of fear that he
may be harmed by an NPA Commander if he will not marry his
wife is unfounded and of no basis (Villanueva vs. Court of
Appeals, G.R. No. 132955, October 27, 2006).
1. The grounds for the annulment of a voidable marriage

enumerated under Article 45 of the Family Code must already
be existing at the time of the celebration of the marriage.
Thus, if the grounds occurred only after the celebration of the
7. Sexually transmissible disease (STD) is a ground to annul

the marriage if it is both serious and incurable. If it is not
serious and incurable, it can only be a ground if it already
existed at the time of the marriage and it was concealed by a
in verbatim.
spouse from the other. This is because the concealment of the
STD here becomes fraud.
8. Drug addiction, habitual alcoholism, homosexuality and
lesbianism can be a ground to annul the marriage only when it
already exist at the time of the marriage and it was concealed
by said party from the other. If it occurred only after the
marriage, it is not a ground for annulment but it could be a
ground for legal separation.
9. Physical incapacity to consummate the marriage refers to
impotency and not sterility. The impotency must already be
existing at the time of the marriage and such incapacity
continues and appears to be incurable. If the impotency
happened only after the marriage it is not a ground for the
annulment of the marriage. Potency is always presumed, thus,
whoever claims that his/her spouse is impotent has the
burden of proving. However, the presumption of potency is
rebutted if the wife remains a virgin after three years from the
time of their cohabitation. This is called the Doctrine of
triennial cohabitation.
in verbatim.

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PERSONS AND FAMILY RELATIONS REVIEWER l XYRUS ALAN R.

BUCAO LLB 1 EH 306

HISTORY OF THE FAMILY CODE

-right to marry is a fundamental human right under the

Legal capacity of the contracting parties who

Consent freely given in the presence of a

solemnizing officer to scrutinize the marriage license was duly

Article 5. Any male or female of the age of eighteen

Authority of the solemnizing officer;

Article 6. No prescribed form or religious rites for the

-Under the new Local Government Code of 1992 empowered

Articles 4. Absence of any of the essential or formal

-Defect in the essential requisites of marriage makes the

Example: Marriage license issued without tcomplying the 10

-Judges of quasi-judicial bodies do not have authority to

3.) A priest of the Roman Catholic Church, an Imam of the

contracting parties should secure a marriage license

Marriage license issued by the LCR where neither of

When both parties to the marriage are Filipinos and

Application for Marriage License:Art. 11- Where a

Art. 12- The local civil registrar, upon receiving such

certificate of legal capacity to marry issued by his diplomatic

Art. 15- Any contracting party between the ages of

3. Birth certificate or baptismal certificate is required in order

Art. 16- In the cases where parental consent or

1. When either or both parties to the marriage are foreigners,

1. The best evidence to establish or prove marriage is the

birth and baptismal certificates of children borne by the

married to another woman the Filipino spouse is still

Marriage under Articulo Mortis:

parties are at the point of death, the marriage may be

Art. 32- A military commander of a unit, who is a

Art. 33- Marriages among Muslims or among members

5. The marriage solemnized without a marriage license on the

Ratification of Marital Cohabitation:

6. The falsity of an affidavit of marital cohabitation, where the

5) Those contracted through mistake of one

even in a suit not directly instituted to question the same so

dependent and self -defeating personality disorder. On appeal,

or opposition, as the case may be, to the petition. The

abnormality. It is not enough to prove that a spouse failed to

VOID MARRIAGES - INCESTUOUS

2) Between brothers and sisters, whether of full or

VOID MARRIAGES AGAINST PUBLIC POLICY

1. The nullity of the marriage under this article hinges

Art. 39- The action or defense for the declaration of

Court ruled that for the purpose of determining whether a

Art. 44- If both spouses of the subsequent marriage

petition should be filed in the Court of Appeals in accordance

marriage it cannot be used as a ground to annul the marriage.

1) That the party in whose behalf it is sought to have

a.) Absence of parental consentb.) Unsoundness of the mind

2) That either party was of unsound mind, unless such

f.) Sexually transmissible disease that is both serious and

6. The claim of the petitioner, who is a security guard, that his

1. The grounds for the annulment of a voidable marriage

7. Sexually transmissible disease (STD) is a ground to annul

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