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TITLE I. MARRIAGE Art. 1.

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law, for establishment of conjugal and family life; foundation of the family and an inviolable social institution; nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. Note: The article characterizes marriage as (a) a special contract between parties who must be man and a woman (no valid marriage being permissible between same sexes; (b) foundation of the family; and (c) an inviolable social institution. Note: Art. 27 of Muslim Code a Muslim can have as many as four wives at a time, provided, he can give them equal companionship and equal treatment. Note: Basic objective of marriage is to establish conjugal and family life in line with the constitutional proscriptions (see Sec. 12, Art. II and Art. XV). The need to maintain the marriage and protect it against undue termination is manifested by the employment of the words permanent union and inviolable social institution. Note: As a special contract (unlike ordinary contracts covered by freedom to stipulate), the law governs, (a) nature, (b) consequences, and (c) incidents of marriage relations, save only to the extent that parties may fix their property relations during their marriage. Note: Marriage vs. Ordinary Contracts - ordinary contracts are mere contracts, marriage is a contract and a social institution; in ordinary contracts, generally stipulations are fixed by the parties (so long as notthe agreements entered into usually depend on the contrary to law, customs, etc.), in marriage, generally the stipulations are fixed by law (except marriage settlement); ordinary contracts can be ended by mutual agreement and by other legal causes, marriage can be dissolved only by death or annulment and not by mutual agreement. Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. Note: This article sets forth the essential requisites of marriage, absence of any of which renders the contract of marriage VOID AB INITIO except as may be provided in Section 35(2)[solemnized by person not authorized with either or both parties believing in good faith that solemnizing officer had authority to do so]. Note; Contracting parties must be a man and a woman possessed of legal capacity to enter into a marriage contract; parties must be of marriageable age (both must be at least 18 years of age) and the law does not prohibit them from marrying. Note: There must be consent on both parties part. When consent is vitiated (therefore defective) the contract is voidable as in the cases of marriage where one of the parties is insane (NUFFIS).

Art. 3. Formal requisites of marriage are: (1) Authority of solemnizing officer; (2) valid marriage license except in cases provided for in Chapter 2 of this Title; and (3) marriage ceremony which takes place with appearance of contracting parties before solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. Note: The article sets the formal requirements of marriage. Marriage is void if the solemnizing authority is not legally authorized to solemnize marriage except when the marriage is contracted with either or both parties believing in good faith (at the time of marriage) that the solemnizing officer had legal authority to solemnize marriage (see Art. 35, FC). Note: A marriage license is valid in any part of the Philippines for 120 days from date of issuance. Absence of a marriage license, when required, renders a marriage void except in the following cases: (a) marriages in articulo mortis (Art. 27, FC), (b) remotre residence of either party where there are no means of transportation to the office of the LCR (Art. 28), (c) Marriages among Muslims or among members of ethnic cultural communities (Art. 33), (d) marriage of couples who have lived together as husband and wife for at least 5 years both not suffering from any legal impediment to marry each other (Art. 34), (e) Marriage performed abroad where no license is required by foreign law (Art. 26, FC). Note: Marriage ceremony must publicly take place (except in cases set forth in Art. 8, that is, articulo mortis marriages or written request by contracting parties to the marriage). Marriage by proxy is illegal as parties must freely declare their consent before the solemnizing officer, except if the marriage is celebrated abroad and such kind of proxy marriage is recognized by foreign law (lex loci celebrationis). Art. 4. ABSENCE of any of ESSENTIAL or FORMAL REQUISITES, marriage is VOID AB INITIO, except as stated in Article 35 (2). DEFECT in any of ESSENTIAL REQUISITES renders the marriage VOIDABLE as provided in Art. 45. IRREGULARITY in FORMAL REQUISITES shall not affect validity of marriage but party/parties responsible for irregularity shall be civilly, criminally and administratively liable. Note: Essential and formal requisites must be complied with, absence of at least one makes the marriage void, except (a) as provided by Art. 35[2] (good faith belief of one or both parties as to authority of solemnizing officer); (b)in case where no marriage license is required. Note: Defect in any of the essential requisites renders the marriage voidable and the defect may relate to lack of parental consent to the marriage or the consent of a party is vitiated (see Art. 45). Note: Absence of marriageable age will fall under the first paragraph because it is absence of an essential requisite of legal capacity of the contracting parties, thus, the marriage is void. Note: Irregularity in the formal requisites will not affect the validity of the marriage but will subject the party responsible to civil, criminal and administrative liability, such as in the following (a) presence of only one witness; (b) lack of legal age of witnesses; (c) failure to comply with the procedural requirements in Art. 12 (requirements of issuance of marriage license); (d) nonobservance of the 3month period in Art. 15 (in marriage where a party is between 21-25 and parental advice is not obtained or is unfavorable); (e) failure to comply with requirements of notice in Art. 17 (10-day publication of application for marriage license).

Art. 5. Any male/female, 18 years or upwards not under any of impediments mentioned in Articles 37 and 38, may contract marriage. Note: This article prescribed the marriageages of the contracting parties. Formerly the marriageable age was 14 for females and 16 for males. Aside from age, parties must not suffer from legal impediments of blood relations (under Art. 37) and certain relationships as to render the marriage void for reasons of public policy under Art. 38. Art. 6. No prescribed form or religious rite for solemnization of marriage is required. It shall be necessary, however, for contracting parties to appear personally before 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 contained in the marriage certificate which shall be signed by contracting parties and their witnesses and attested by solemnizing officer. In case of marriage in articulo mortis, when party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. Note: In the ceremony (which must be generally public) there are two basic requirements for the parties to fulfill, namely: (a) personal appearance (no proxy is allowed) before the solemnizing officer; and (b) their declaration, in the presence of at least two witnesses of legal age that they take each other as husband and wife (a confirmation of free consent to the marriage and this should appear in the marriage certificate which shall be signed by the parties and their witnesses and attested by the solemnizing officer). Note: If marriage by proxu is performed abroad, whether between Filipinos or foreigners or mixed, and considered valid there, it should be considered valid in the Philippines (art. 26, FC) AND LEX LOCI CELEBRATIONIS. Note: In articulo mortis marriage, where the dying party could not sign, one of the witnesses will write his/her name duly attested by the solemnizing officer. Note: Absence of parties formal declaration will not invalidate the marriage but will make the last par. of Art. 4 apply, that is, civil, administrative, criminal liability. Art. 7. Marriage may be solemnized by: (1) any incumbent MEMBER OF 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 by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; (3) Any ship captain or airplane chief only in the case mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; (5) Any consul-general, consul or vice-consul in the case provided in Article 10. Note: Inclusio unios exclusion est alterius (what the law does not include, it excludes). Note: Authority to solemnize marriage, the provision of any law to the contrary notwithstanding, is based upon Sec. 444, par. b(1)(xviiii) of RA7160 for MUNICIPAL MAYORS and Sec. 455, par. b(1)(xviii) for CITY MAYORS.

Note: A judge can solemnize marriage within his courts jurisdiction. In ZENAIDA BESO vs. JUDGE JUAN DAGUMAN, AM#MTJ-99-1211, 1/28/2000 Complainant charged Respondent with neglect of duty and abuse of authority for having solemnized her marriage outside his jurisdiction (in his residence in Calbayog City while being a municipal judge of Sta. Margarita, Samar). In imposing a fine and warning Respondent, SC HELD, a person presiding over a court of law must not only apply the law but must also live and abide by it and render justice at all times without resorting to shortcuts clearly uncalled for. A judge is not only bound by oath to apply the law; he must also be conscientious and thorough in doing so. Certainly, judges, by the very delicate nature of their office should be more circumspect in the performance of their duties. Considering that Respondents jurisdiction covers the municipality of Sta. Margarita-TaranganPagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in the City of Calbayog. Respondents reasons to justify his hurried solemnization of the marriage in this case only tends to degrade the revered position enjoyed by marriage in the hierarchy of social institutions in the country. They also betray Respondents cavalier proclivity on its significance in our culture which is more disposed towards an extended period of engagement prior to marriage and frowns upon hasty, ill-advised and ill-timed marital unions. Note: Priest, rabbi, imam or minister of any church/religious sect must comply with two conditions (a) he must be duly authorized to solemnize marriage by his church/sect; and (b) he must be duly registered with the civil registrar general. Note: If the marriage is celebrated before a priest, rabbi, imam or minister, at least one of the contracting parties must belong to the solemnizing officers church. However, failure to comply with this requirement is a mere irregularity in the marriage and should not, therefore, adversely affect the latters validity. Note: A ship captain/airplane chief can only celebrate a marriage in articulo mortis while the ship is at sea (in the case of a ship captain) or the plane is in flight (in the case of an airplane chief) under Art. 31, but the marriage in articulo mortis may also be solemnized during stop-overs at port of call. The law does not prohibit a priest, rabbi, imam or minister (duly authorized by his church or sect and duly registered) to perform marriages in articulo mortis in cases where a ship captain or airplane chief or military commander can celebrate such kind of marriage. Note: A military commander can also celebrate marriage in articulo mortis in the face of a military operation and within the zone of such military operation whether or not the contracting parties are members of the armed forces or civilian. If it is the military commander himself who is dying and to be married, the next in command designated by the dying commander or by the military rues may celebrate the marriage. Note: A consul-general or vice-consul is authorized to celebrate marriages between Filipinos abroad under this article in relation to Art. 10. Art. 8. Marriage to be solemnized publicly in judges chamber or in open court, in church, chapel/temple or in the office of consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted on the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. Note: Sound policy dictates that the marriage ceremony must be done publicly (States active interest in the marriage) (a) in the judges chamber; (b) in open court; (c) in the church, chapel or in a temple; (d) in the office of the consular official.

Note: The marriage ceremony may be solemnized in a house or place (private place) designated by the parties in a sworn statement to that effect where both of them request the solemnizing officer in writing to solemnize the marriage in a private place. There need be no legal reason for the request as the reason may be too personal as when the woman is already pregnant or the parties and their relatives want the affair to be strictly private and thereby would save them from spending much, marriage being traditionally an expensive affair. Note: By way of exception, marriage ceremony may be solemnized elsewhere (a) in cases of marriages in articulo mortis; (b) in marriage in remote places (Art. 28). Art. 9. Marriage license to be issued by LCR of city/municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. Note: This article sets forth the place where the marriage license shall be applied for and issued and that place is the municipality or city where either contracting parties reside. This place is immaterial where no marriage license is required in cases set forth in Chapter 2 of the Title on Marriage. Note: Religious ratification of a valid marriage does not require a marriage license. Art. 10. Marriages between Filipino citizens abroad may be solemnized by Philippine consul-general, consul or vice-consul. Issuance of marriage license and duties of LCR and of solemnizing officer with regard to celebration of marriage shall be performed by said consular official. Note: Marriage between Filipino citizens performed abroad by the Filipino consular official as provided for in this article are governed b y the provisions of the Family Code, as if the marriage is performed in our country. Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper LCR to specify: (1) contracting partys full name; (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) contracting parties degree of relationship; (8) fathers full name, residence and citizenship; (9) mothers full name, residence and citizenship; and (10) full name, residence and citizenship of guardian or person having charge, in case the contracting party has neither father nor mother and is under 21 years of age. The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. Note: Parties are required to file SEPARATELY a sworn application for marriage license with the detailed data mentioned in this article although only one license is issued to them. Note: The last paragraph of this article does not require the exhibition of ones cedula except as may be required or necessary under the second paragraph of Art. 12. Note: Statement of full name is obviously to identify the contracting party that he is a man or she is a woman. His/her age and date of birth are important for purposes of applying the marriageable age or age requiring parental consent/advice. His civil status indicates whether he had been previously been married or how such marriage was dissolved/annulled. The residence is for the purpose of where the marriage license must be applied for/whether the same can be

dispensed with. Degree of relationship of contracting parties is designed to know whether there is legal impediment of relationship to the marriage. Citizenship is material with respect to divorce previously granted or as to what law no marriage may apply. Data with respect to father/mother/guardian may be relevant with respect to requirement on consent/advice to the marriage. Art. 12. LCR upon receipt of such application shall require presentation of the contracting parties original birth certificates (in default thereof, baptismal certificates) or copies of such documents duly attested by persons having custody of originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. Signature and official title of person issuing the certificate shall be sufficient proof of its authenticity. If either of contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of destruction or loss of original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of person having custody thereof at least 15 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 LCR concerned or any public official authorized to administer oaths. Such instrument shall contain sworn declaration of two witnesses of lawful age, setting forth 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. 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. Presentation of birth/baptismal certificate shall not be required if parents of contracting parties appear personally before LCR concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when LCR 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. Note: This article sets forth the rules by which the civil registrar shall determine whether the parties have the required age for marriage. The rules are liberal in nature as may be shown by the last paragraph (LCR by merely looking at the applicants appearing before him is convinced that either/both have the required age. Art. 13. In case either of contracting parties has been previously married, applicant shall be required to furnish, instead of birth or baptismal certificate required in the last preceding article, death certificate of the deceased spouse or judicial decree of absolute divorce, or judicial decree of annulment or declaration of nullity of his or her previous marriage. In case death certificate cannot be secured, party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. Note: This article substitutes for Art. 12 when either party had been previously married in which case the applicant/applicants (if both had been previously married) shall present in lieu of birth/baptismal certificate any of the documents required in this article. Art. 14. In case either or both of contracting parties, not having been emancipated by a previous marriage, are between ages of 18 and 21, they shall, in addition to the requirements of preceding articles, exhibit to LCR, 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 LCR, or in the form of an affidavit made in the presence of 2 witnesses and attested before any official authorized by law to administer oaths. Personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said applications.

Note: Under this article, if a contracting party is between 18-21 and he/she has not been previously emancipated by marriage, there is need of parental consent (by the father/mother/surviving parent/guardian/person having legal charge (in the order mentioned), thus, even if the mother consents but the father objects to the marriage, there is no valid consent to the marriage. If a party becomes a widow/widower at 19/20, there is no need of parental consent should she/he remarry. Note: Consent is given either (a) personal manifestation in writing; or (b) execution of affidavit in the presence of two witnesses. Note: Marriage celebrated without the required consent is voidable. Art. 15. Any contracting party between age of 21 and 25 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 3 months following completion of publication of the application therefor. A sworn statement by contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. Note: Advice, not consent, is required where any contracting party is between 21 and 25 years old. The article does not employ the words, in the order mentioned used in Art. 14, instead the words, their parents or guardian are used. Hence, both father and mother must give the advice or the guardian gives the advice in the absence of the parents. Note: If the parties do not obtain such advice (as when parent/guardian refuses to give advice) or such advice is unfavorable, no marriage license shall issued till after three months following completion of publication of the application for marriage license. Note: Marriage celebrated within 3-month period because the marriage license was issued in violation of the prohibitory period, there is a mere irregularity in the marriage, validity of which is not adversely affected without prejudice to appropriate responsibility of the erring party/parties. Art. 16. In cases where parental consent or parental advice is needed, 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 counseling. Failure to attach said certificates of marriage counseling shall suspend issuance of marriage license for a period of 3months from completion of publication of the application. Issuance of marriage license within the prohibited period shall subject issuing officer to administrative sanctions but shall not affect validity of the marriage. Should only one of contracting parties need parental consent or parental advice, the other party must be present at the counseling referred to in the preceding paragraph. Note: Either/both contracting parties between 18-25 years old, marriage counseling is required. Even if only one party requires parental consent/advice, the other party is required to be present at the counseling. Note: Failure to attach the required certificate on marriage counseling will suspend the issuance of a marriage license for a period of 3 months from completion of publication of the application for marriage license. However, issuance of the marriage licesne during the prohibited period and

the subsequent marriage contracted under such license will not invalidate the marriage, without prejudice to the responsibility of the issued officer. Art. 17. LCR to prepare a notice which shall contain full names and residences of applicants for a marriage license and other data given in the applications. Notice to be posted for 10 consecutive days on a bulletin board outside LCRs office located in conspicuous place within the building and accessible to general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise LCR thereof. Marriage license shall be issued after completion of period of publication. Note: 10-day publication of application for marriage license is merely by notice posted in the bulletin board conspicuously located and accessible to the public. Art. 18. In case of any impediment known to LCR or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after completion of publication period, unless ordered otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. Note: Issuing of marriage license is a ministerial act. Notice to the civil registrar of any impediment to the marriage shall not prevent the issuance of the marriage license after the publication period unless otherwise ordered by court upon petition of the civil registrar himself or any interested party. Note: If the impediment is well-grounded as found by the civil registrar, the latter should ask the court to order the non-issuance of the marriage license. At any rate, the law does not fix a period during which license shall issue after completion of publication. It is thus understood that the license shall issue within a reasonable time after completion of publication. Note: The law does not prohibit the civil registrar from conducting further investigation should a legal impediment to marriage is made known or appears to him. He may delay his going to court for the latter to prevent issuance of the license. His delay may prompt a contracting party to go to court to order the issuance of the license in which case the registrar may explain the said delay; the court may sustain/overrule his defense. The registrar may, on his own findings, decide to issue the license without going to court even in the face of the information that there was an impediment to the marriage. Art. 19. LCR to require payment of fees prescribed by law/regulations before issuance of marriage license. No other sum shall be collected in the nature of a fee/tax of any kind for 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 LCR. Note: Minimal fees required only to encourage parties to contract marriage. Exemption from fees for issuance of license extended to indigent parties (those who have no visible means of income or whose income is insufficient for their subsistence), a fact to be proven by affidavit or oath.

Art. 20. License shall be valid in any part of the Philippines for a period of 120 days from date of issue, and shall be deemed automatically canceled at the expiration of said period if contracting parties have not made use of it. Expiry date shall be stamped in bold characters on face of every license issued. Note: Life of a marriage license is 120 days from date of issue with the expiry date stamped in bold character on the face of every license and any solemnizing officer who solemnizes a marriage as well as the parties thereto after the license expired may be held criminally liable under Art. 3550, RPC (unlawful marriages). Art. 21. When either or both contracting parties are citizens of a foreign country, it shall be necessary for them before 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 certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. Note: For aliens, they have to produce a certificate of capacity to contract marriage from their diplomatic or consular officials. This is in accordance with the nationality principle with which under Art. 15CC (by implication) we adhere. Thus, legal capacity of aliens to enter into marriage shall be determined by the law of their country. Note: With respect to stateless person, refugees from other countries, mere affidavit showing their legal capacity will suffice. As to refugees (nationality principle), law of their country may still govern them, as to stateless persons, the law of the last country of which they were nationals may govern them. Note: This article qualifies the principle of lex loci celebrationis which will then pertain to the formal requisites of marriage in light of the first paragraph of this article which clearly enunciates the nationality principle. Art. 22. Marriage certificate, in which parties shall declare that they take each other as husband and wife, shall also state: (1) contracting parties full name, sex and age; (2) their citizenship, religion and habitual residence; (3) date and precise time of celebration of marriage; (4) that proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title; (5) that either/both contracting parties have secured parental consent in appropriate cases; (6) that either/both contracting parties have complied with legal requirement regarding parental advice in appropriate cases; and (7) that parties have entered into marriage settlement, if any, attaching a copy thereof. Note: This article enumerates the contents of the marriage certificate. The certificate is categorized as the very contract of marriage in which the contracting parties declare that they freely and voluntarily take each other as husband and wife, and thereby they assume their fundamental obligations to each other, aware of the concomitant rights that pertain to both of them. Note: FERNACULLO VS. FERNANCULLO 509 SCRA 1, SC declared that, persons dwelling together apparently in marriage are presumed to be married. Note: BARTOLOME V. BARTOLOME L-23661, 12/20/1967 Despite the absence of a marriage record with the Office of the Manila Civil Registry, a man and woman who lived together as husband and wife for many years are presumed married. Lack of a marriage record in Manila

does not rebut the presumption of marriage, for marriage could have been celebrated elsewhere. Note: ORFILA VS. ARRELLANO 482 SCRA 280, SC held that, a marriage contract is a public document that needs no authentication, it cannot be overcome by testimony of one of the contracting parties. Note: The marriage settlement (on property relations) which is also a contract is attached to the certificate, the main contract. These contracts are, of course, governed/regulated by law. Note: The marriage certificate is the best evidence of the existence of a marriage, but it is not the only evidence that can be admitted to prove the existence of a marriage. Testimony of witnesses may be admitted on this point. The declaration of one of the parties to the marriage as well as of the people who attended the ceremony, is regarded as competent proof of the marriage. Note: Legal presumption is that a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage (Rule 131, Sec. 5 (bb) of the Rules of Court). Art. 23. Solemnizing officers duty to furnish either of contracting parties original of marriage certificate referred to in Article 6 and to send duplicate and triplicate copies of the certificate not later than 15 days after the marriage to LCR of the place where marriage was solemnized. Proper receipts shall be issued by LCR to solemnizing officer transmitting copies of marriage certificate. Solemnizing officer shall retain in his file quadruplicate copy of marriage certificate, copy of marriage certificate, original of marriage license and, in proper cases, affidavit of contracting party regarding solemnization of marriage in place other than those mentioned in Article 8. Note: There are at least 4 copies of the marriage certificate prepared and distributed (a) original is given to one of the spouses, usually the wife; (b) 2 copies (duplicate and triplicate) are sent to LCR of the place where the marriage was solemnized; (c) quadruplicate copy is retained by solemnizing officer (along with original of marriage license and affidavits, if any). 24. LCRs duty to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. Note: Basic duties of LCR relative to marriage (a) accept applications for marriage license and required affidavits; (b) collect required fees; (c) publish said applications; (d) issue the marriage license after completion of publication; (e) prepare the documents required by Title I of Family Code); (f) administer oaths to all interested parties; (g) receive copies of the marriage certificate and issue receipts thereof; (h) keep a registry book of marriages; (i) issue certified copies of entries in such book upon payment of required fees. Art. 25. LCR 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 said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. Note: Keeping of registry book of applications for marriages is provided for above. Necessarily, the registrar must also keep a compilation of marriages actually celebrated by recording marriage certificates sent to him as can be implied from this article.

Note: REPUBLIC V. CA & ANGELINA CASTRO, GR#103047, 9/12/1994 Angelina filed for declaration of nullity of her marriage to Edwin Cardenas on the ground that no marriage license was issued to Cardenas prior to the celebration of the marriage as proven by a certification from the Civil Register that no record or entry of a marriage license existed in the records of said office. SC held that Art. 26. All marriages solemnized outside the Philippines, in accordance with laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. 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 have capacity to remarry under Philippine law. (As amended by Executive Order 227) Note: First part of article applies LEX LOCI CELEBRATIONIS. For a foreign marriage to be recognized in our country, 3 requisites must be met (a) marriage is solemnized in accordance with the law in force in the foreign country where the marriage was solemnized; (b) said marriage is valid n that foreign country; (c) marriage is not prohibited under Art. 35(1, 4, 5, 6), Art. 36, 37 and 38 of the Family Code. Note: Non-compliance with authority of solemnizing officer or absence of marriage license in a foreign marriage will not adversely affect the latter assuming existence of the first two requirements. Note: This article is more pertinent with respect to marriages between Filipinos or between aliens and Filipinos. Thus, a marriage celebrated in a foreign country, complying with its laws and valid there as such shall also be valid in our country, except (a) marriages contracted by any party below 18 even with parental consent; (b) bigamous/polygamous marriages not falling under Art. 41 (subsequent marriages following decree of presumptive death); (c) marriages contracted through mistake of one contracting spouse as to the identity of the other; (d) marriage under Art. 36; (e) subsequent marriages void under Art 53 (failure to register decree with LCR); (f) incestuous marriages under Art. 37; (g) marriages barred by public policy under Art. 38. Note: Common-law marriages obtained abroad by Filipinos are not recognized here. Filipinos, insofar as family rights, duties and status are concerned, subject to the nationality law (Art. 15, CC). Thus, two Filipiinos who married abroad (a) married without a license considered valid abroad, considered valid here; (b) one/both under 18, valid abroad, not valid here; (c) both of legal age but are4th civil degree relatives, valid abroad, not valid here. Note: Absolute divorce between two citizens of the Philippines is not recognized in the Philippines (following nationality principle). Foreigners who obtained divorce abroad, considered valid there, may remarry here (present certificate of legal capacity to remarry). NOW, the second paragraph of Art. 26 provides for the recognition in the Philippines of a particular absolute divorce obtained in another country which will allow the divorced Filipino to remarry. Ergo, where a valid marriage is celebrated, either here or abroad between a Filipino citizen and a foreigner, and subsequently, the alien spouse obtains a valid divorce obtaining him/her to remarry, Filipino spouse is likewise capacitated to remarry. Note: REPUBLIC VS. ORBECIDO, GR154380, 10/5/05 2 paragraph of Art. 26 applies to a situation where originally, at the time of marriage, both parties were Filipinos, but at the time of divorce, the petitioner was already a citizen of a foreign country that allows absolute divorce. For purposes of Art. 26, the determinative point when the foreigner who procured the divorce should be a foreigner is at the time of the divorce and not at the time of the marriage ceremony.
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Note: The Filipino spouse, who did not procure the divorce, must be a Filipino also at the time of the issuance of the divorce decree for Art. 26 to apply. If the Filipino spouse subsequently acquired his/her foreign spouses citizenship before the divorce ad he/she initiate the divorce proceeding, the eventual divorce decree will be recognized in the Philippine not because of Art. 26 but due to nationality principle with respect to status of a person (in this case, no longer a Filipina). Note: If party seeking divorce abroad is the Filipino, such divorce is not recognized her due to nationality principle. However, divorce in so far as the alien spouse is concerned may be recognized here due to the nationality rule. Note: GARCIA VS. RECIO 366 SCRA 437, the Court laid down the specific guidelines for pleading and proving foreign law and divorce judgments. It held that presentation solely of a divorce decree is insufficient and that proof of its authenticity and due execution must be presented. Note: Conversely, even if marriage abroad would be valid here, however, considered invalid abroad for non-compliance with requirements set by the foreign country, the marriage is considered invalid here. (LEX LOCI CELEBRACIONIS). Chapter 2. Marriages Exempted from License Requirement Art. 27. Either/both contracting parties are at the point of death, marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. Note: Provisions on marriages at the point of death are based on the recognition of the purity and sincerity of love relationship forged by the mutual desire to join loving couple in spirit even if not in flesh under the belief that spiritual love is more essential and intense than physical love. Note; Marriage remains valid and there is no need of a new marriage ceremony even if the ailing party survives. Note: There can be a valid marriage in articulo mortis even if both parties are at the point of death, provided, of course, that all the essential requirements are present. It is clear that the parties concerned must be conscious of what they are doing. Note: Danger of Death vs. Point of Death a solider going to war may be in danger of death, but not at the point of death. Art. 28. Residence of either party is so located that there is no means of transportation to enable such party to appear personally before LCR, marriage may be solemnized without necessity of a marriage license. Note: Residence is a remote place in the contemplation of this article if there is no means of transportation, meaning, it is not accessible as to enable the party to leave for the office of the civil registrar. However, even if there is no means of transportation, if the place to the office of the LCR is walkable or accessible by foot without difficulty, as when it is located only about 3 to 4 kilometers away, this article will not apply. Art. 29. In cases provided for in the 2 preceding articles, solemnizing officer shall state in an affidavit executed before LCR/any other person legally authorized to administer oaths

that marriage was performed in articulo mortis/residence of either party, specifying barrio/barangay, is so located that there is no means of transportation to enable such party to appear personally before LCR and that the officer took necessary steps to ascertain ages and relationship of contracting parties and absence of legal impediment to marriage. Note: It is the solemnizing officer and not the contracting parties who will execute the required affidavit. Note: The affidavit required above is to prove the basis for exemption from marriage license. Failure on solemnizing officers part to execute the required affidavit is a mere irregularity and will not invalidate the marriage. Art. 30. Original of affidavit required in the last preceding article, together with legible copy of marriage contract, shall be sent by person solemnizing the marriage to LCR of municipality where it was performed within 30 days after performance of the marriage. Note: Civil registrar who keeps the records of marriages should be given the original of the affidavit which logically takes the place of a marriage license. Failure to comply with the required set by this article however does not invalidate the marriage. Art. 31. Marriage in articulo mortis between passengers/crew members may also be solemnized by ship captain or by airplane pilot not only while ship is at sea or plane is in flight, but also during stopovers at ports of call. Note: Articulo mortis marriages between passengers or crew members may be solemnized (a) while ship is at sea by ship captain; (b) while plane is in flight by an airplane pilot; (c) during stopovers at ports of call. Note: If there is a priest/minister in the ship/plane, he may celebrate the marriage assuming his authority is recognized by his church and he is duly registered pursuant to Art. 7. Art. 32. Military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within zone of military operation, whether members of the armed forces/civilians. Note: The contracting parties in marriages in articulo mortis within the zone of military operation may be members of the armed forces or civilians. Note: The law refers to the commissioned officer with respect to his military status or position, not specifically with respect to the power to celebrate marriage in articulo mortis. Art. 33. Marriages among Muslims/among members of ethnic cultural communities may be performed validly without necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. Note: This article favors not only Muslims but other ethnic cultural minorities like the Igorots, Tagbanuas, Tasadays, etc. There is a basic condition for doing away with the marriage license and that is, the marriage must abide with the customs, rites or practices of the members of the cultural communities.

Note: This provision is consistent with and implements Sec. 17, Art. XIV of the Constitution which provides that the State shall recognize, respect and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies. Art. 34. No license shall be necessary for marriage of a man and a woman who have lived together as husband and wife for at least 5 years and without any legal impediment to marry each other. Contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. Solemnizing officer shall also state under oath that he ascertained qualifications of contracting parties and found no legal impediment to the marriage. Note: For this article to apply (a) parties must have been in live-in relationship as husband and wife for at least 5 years; and (b) no legal impediment for them to marry each other. These conditions are to be proved by affidavit as required in the second sentence. As to the question of legal impediment, the last sentence requires verification by the solemnizing officer to be proved also by affidavit. Chapter 3. Void and Voidable Marriages Note: VOID vs. VOIDABLE MARRIAGES Void can never be ratified, Voidable can generally be ratified by free cohabitation; VOID always void, Voidable is valid till annulled; Void can be attacked directly or collaterally, Voidable cannot be assailed collaterally, there must be a direct proceeding; Void there is no conjugal partnership, Voidable there is a conjugal partnership. Art. 35. Marriages void from the beginning: (1) contracted by any party below 18 years of age even with parents/guardians consent; (2) solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either/ both parties believing in good faith that solemnizing officer had legal authority to do so; (3) solemnized without license, except those covered by the preceding Chapter; (4) bigamous/polygamous marriages not falling under Article 41; (5) contracted through mistake of one contracting party as to the others identity; and (6) subsequent marriages are void under Article 53. Note: In No. 1, the minimum marriageable age for both contracting parties is 18. When a contracting party to the marriage is less than 18, consent of the parents/guardian will not cure the defect. Note: In No. 2, the authority of the solemnizing officer is a formal requisite absence of which shall invalidate the marriage, except marriage celebrated abroad (under Art. 26 unless either/both contracting parties believed (before and during the time of the marriage) in good faith (that is, there are no circumstances that should make the party/parties suspicious of the absence of authority of the solemnizing officer) that he had legal authority to celebrate the marriage. Note: In No. 3, absence of a marriage license except those in Chapter 2, Title 1 of the Code (marriages of exceptional character) will render such marriage void except if the marriage, without a license is performed abroad and valid there despite the absence of said license. Note: In No. 4, Bigamous/polygamous marriages are void except in the case of subsequent marriage by reason of absence of a spouse as provided under Art. 41 and subject to termination of such subsequent marriage under Art. 42.

Note: Section 27, PD1083, Code of Muslim Personal Laws, Notwithstanding the rule of Islamic Law permitting a Muslim to have more than one wife, he shall have but one wife unless he can deal with them with equal companionship and just treatment as enjoined by Islamic Law and only in exceptional cases. Note: In No. 5, mistake here is very substantial and serious because it refers to the very person of one of the contracting parties and therefore destroys the need for free consent and voluntariness in marriage. Note: In No. 6, Art. 52 requires recording/registration in the civil registry of the judgment of annulment/absolute nullity of marriage and this requirement is made a condition precedent to the validity of a subsequent marriage. Subsequent marriage celebrated without complying with aforesaid requirement on registration of judgment in the civil registry is declared by law under Sec. 53 as null and void. Art. 36. Marriage contracted by any party who, at the time of celebration, was psychologically incapacitated to comply with essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. Note; Psychological incapacity to comply with the essential marital obligations is a ground that will render the marriage void. It is not necessary that this incapacity be manifested before It is not necessary that this incapacity be manifested before or during the marriage although it is fundamentally required that the psychological defect be existing during the marriage. Note: Essential marital obligations are principally set forth in Art. 68 that, the husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. Note: LEOUEL SANTOS VS. CA, GR112019, 1/5/95 1ST Lt. Santos married Julia (no offsprings) who went to work in the US. When she did not return, Leouel who underwent a training in the US when to look for her but to no avail. His petition for nullity of marriage was dismissed by the trial court as affirmed by the Court of Appeals. SC held that, in no measure at all can the factual settings in the case come close to the standards required to decree a nullity of marriage. Undeniably and understandably, Leouel stands aggrieved even desperate in his present situation. Regrettably, neither law nor society itself can always provide all the specific answer to every individual problem. Respondents mere failure to return to Petitioner is not psychological incapacity. Psychological Incapacity must be characterized by (a) gravity, (b) juridical antecedence and (c) incurability. Art. 36 of the Code has not been meant to comprehend all such possible cases of psychoses. It should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriages as expressed by Art. 68. 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 which condition must exist at the time the marriage is celebrated. The other forms of psychoses, if existing at the inception of marriage (unsound mind, concealment of drug addition, habitual alcoholism, homosexuality or lesbianism) merely renders the marriage contract voidable (Art. 46). If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Art. 55.

Note: REPUBLIC V. CA (RORIDEL MOLINA), GR108763, 2/13/1997 Plaintiff Roridel Molina married Reynaldo Molina which union bore a son. After a year of marriage Reynaldo showed signs of immaturity and irresponsibility as a husband and father as he preferred to spend more time with his friends, depended on his parents for assistance, and was never honest with his wife in regard to their finances resulting in frequent quarrels between them. RTC granted Roridel nullity of her marriage which was affirmed by the CA. Solicitor General petitioned the SC insisting that the CA made an erroneous and incorrect interpretation of the phrase psychological incapacity and made an incorrect application thereof to the facts of the case adding that the appealed decision tended to establish in effect the most liberal divorce procedure in the world which is anathema to our culture. SC held that, there is no clear showing that the psychological defect spoken of is an incapacity. It appears to be more of a difficulty if not outright refusal or neglect in the performance of some marital obligation. MERE SHOWING OF IRRECONCILABLE DIFFERENCES AND CONFLICTING PERSONALITIES IN NO WISE CONSTITUTES PSYCHOLOGICAL INCAPACITY. It is not enough to prove that the parties failed to meet their responsibilities and duties as married persons; it is essential that they must be shown to be incapable of doing so, due to some psychological (not physical) illness. Note: Molina case, GUIDELINES IN THE INTERPRESTATION AND APPLICATION OF ART. 36: (1) Burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity; (2) root cause of the psychological incapacity must be (i) medically or clinically identified, (ii) alleged in the complaint, (ii) sufficiently proven by experts and (iv) clearly explained in the decision, Art. 36 requires that the incapacity must be psychological not physical, although its manifestations and/or symptoms may be physical; (3) incapacity must be proven to be existing at the time of the celebration of the marriage; (4) such incapacity must also be shown to be medically or clinically permanent or incurable, such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex; (5) such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage, thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes; (6) essential obligations must be those embraced by Art. 68-71 as regard the husband and wife as well as Art. 220, 221 and 225 of the same Code in regard to parents and their children, such non-complied martial obligations also must be stated in the petition, proven by evidence and included in the text of the decision; (7) 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, it is clear that Art. 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law which became effective in 1983; (8) trial court must order the prosecuting attorney or fiscal and the SOLGEN to appear as counsel for the sate. No decision shall be handed down unless the SOLGEN 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. Note: BRENDA MARCOS V. WILSON MARCOS, GR136490, 10/19/2000 Petitioner met Respondent both AFP personnel, met in 1980 when both were assigned at Malacanang Place, she as escort of Imee Marcos and he as a Presidential Guard of the President, through phone calls they became acquainted and eventually became sweethearts. After they got married and President Marcos feel from power, Respondent left the military service and engaged in various business ventures which did not proper. She on the other hand, stayed on in the service while at the same time had business success till she left the service to concentrate in her trading and construction company. Respondent. Due to his failure to engage in gainful employ, Respondent became quarrelsome, physically violent (even ran after Petitioner with a samurai) toward her and their children, forced her to have sex and eventually abandoned them. CA reversed trial courts decision granting her petition holding that psychological incapacity had not been established (defendant had not submitted himself to psychological examination). SC held that, personal medical or psychological examination of respondent is not a requirement for declaration of psychological incapacity, provided there be the presence of evidence that can adequately establish the partys psychological condition. For indeed, if the totality of the evidence presented

is enough to sustain a finding of psychological incapacity then actual medical examination of the person concerned need not be resorted to. Note: CHI MING TSOI VS. CA, GR119190, 1/16/97 One of the essential marital obligations under the Family Code is to procreate children based on the universal principle that procreation of children thru sexual cooperation is the basic end of marriage. Constant non-fulfillment of this obligation will finally destroy the integrity, or wholeness of the marriage. xxx The senseless and protracted refusal of one of the parties of sexual cooperation for the procreation of children is equivalent to psychological in capacity. In this case, there was no sexual contact between the parties since their marriage on May 22, 1988 up to March 15, 1989 or for almost a year. Likewise, either spouse may file the action to declare the marriage void, even the psychologically incapacitated. Art. 37. Incestuous marriage void from the beginning, whether relationship between parties be legitimate/illegitimate: (1) between ascendants and descendants of any degree; and (2) between brothers and sisters, whether of the full or half blood. Note: An incestuous marriage, in a general concept, is a marriage between close relatives by blood. Under this article only two close relations are considered incestuous and the law considers marriages between collateral blood relatives up to the 4 th civil degree as merely prohibited by reason of public policy. Note: Prohibiting an incestuous marriage is based not only on morals (being revolting to the conscience of man as well as decency and traditions of our people) but also on scientific ground that children of very close blood relatives end up as low in intelligence if not retardates per se. Note: In incestuous marriage the question of whether the relationship is legitmate/illegitimate is immaterial. Note: Computing Degrees of Generation (a) In the direct line, count ALL who are included, then minus one, hence, a granddaugther is two degrees away from the grandfather (GF-FGD=3-1=2 degrees); (b) in the collateral line go up to the nearest common ancestor, then go down minus one, hence, brothers are 2 degrees apart (B1-F-B2=3-1=2). Art. 38. Marriages void from the beginning for reasons of public policy between: (1) collateral blood relatives whether legitimate/illegitimate, up to 4th civil degree; (2) stepparents and step-children; (3) parents-in-law and children-in-law; (4) adopting parent and adopted child; (5) surviving spouse of adopting parent and adopted child; (6) surviving spouse of adopted child and adopter; (7) adopted child and adopters legitimate child; (8) adopted children of same adopter; and (9) parties where one, with intention to marry the other, killed that other persons spouse, or his/her own spouse. Note: The marriages covered by this article are prohibited by law and therefore legally categorized as void by reason of public policy. The relationship are (a) by blood under No. 1, (b) by marriage under Nos. 2 and 3, (c) by adoption under Nos. 4, 5, 6, 7 and 8, and (d) by criminal act under No. 9. Note: In No. 9, the first situation is when a contracting party (single) kills the spouse of his or her sweetheart and the second situation is when to marry a single individual, one kills his or her spouse. A third situation is deemed covered that is, both parties are married and they kill their respective spouses or each of them kills the spouse of the other.

Note: A step-brother is not prohibited from marrying a step-sister. A brother-in-law is not legally prohibited from marrying a sister-in-law. An adopted child may marry an illegitimate child of the adopter. Note: A Roman Catholic priest can legally get married for his being a priest is not, under our law, a disqualification. Hence, a priest can have legitimate children. Art. 39. Action/defense for declaration of absolute nullity of a marriage shall not prescribe. Note: Art. 256 gives retroactive effect to the provisions of the Family Code. Significantly, as amended by Executive Order 227 and Republic Act No. 8533, the phrase However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect has been deleted by Republic Act No. 8533 [Approved February 23, 1998]). Hence, no prescription as NULLITY can never be validated. Art. 40. Absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. Note: While it was a previous rule that if the marriage was null and void, there was no need to go to court for a declaration of nullity, it is now provided For purposes of remarriage, the absolute nullity of a previous marriage may be invoked on the basis solely of a final judgment declaring the previous marriage void and, as required by Art. 53, such final judgment must be duly registered in the civil registry as provided for in Art. 52, and without such registration/recording, the subsequent marriage shall be considered null and void. Such final judgment, needless to say, is by a civil court, not a Church tribunal. Note: Judicial declaration of nullity is required for purposes of remarriage and not for other purposes like questions on paternity or filiation or prosecution for bigamy. However, for purposes of prosecution for bigamy, in order that the defense of nullity of the first marriage may prosper, there must be a judicial declaration of nullity of such first marriage. Art. 41. Marriage contracted by any person during subsistence of a previous marriage shall be null and void unless before celebration of subsequent marriage, prior spouse had been absent for 4 consecutive years and present spouse has well-founded belief that absent spouse was already dead. In case of disappearance where there is danger of death under circumstances set forth in Article 391 of the Civil Code, absence of only 2 years shall be sufficient. For purpose of contracting subsequent marriage under the preceding paragraph present spouse must institute a summary proceeding as provided in this Code for declaration of absentees presumptive death, without prejudice to effect of reappearance of absent spouse. Note: This article states the general rule that a marriage contracted during the subsistence of a previous marriage is null and void with exception that prior to the subsequent marriage, the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the absent spouse was already dead. Note: Validity of a subsequent marriage based on absence of a spouse requires (1) spouse has been absent for a period of four years or two years as the case may be, it being understood that in either case (even if the above article apparently refers only to the 4-year absence, the present spouse has a well-founded belief that the absent spouse was already deed (this belief is seemingly presumed in the second instance where the absent spouse disappeared under circumstances showing danger of death; and (2) present spouse must institute a summary

proceeding for declaration of presumptive death of the absentee, without prejudice to the effect in Art. 42 of reappearance. Note: The rule under the Civil Code (art. 391), presumed dead for all purposes including division of the estate among the heirs the rule is (a) person on board a vessel lost during a sea voyage or missing aeroplane not heard of for 4 years since loss of the vessel or aeroplane; (b) a person in the armed forces who has taken part in war, and has been missing for 4 years; (c) a person who has been in danger of death under other circumstances and his existence has not been known for 4 years. For purposes of subsequent marriage due to presumption of death, 2 years not 4 years. Art. 42. Subsequent marriage referred to in preceding article shall be automatically terminated by absent spouses recording of affidavit of reappearance, 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 civil registry of residence of parties to 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. Note: It is not the fact of reappearance by the absent spouse but rather the execution of an affidavit of reappearance of the absent spouse (executed by him or anyone else who is an interested party), duly recorded with the civil registry that will terminate ipso facto the subsequent marriage unless the previous marriage (which is supposed to be reinstated) has been annulled or declared void ab initio by final judgment. Note: Required affidavit of reappearance of the absent spouse (a) must state the fact and circumstances of reappearance; and (b) must be registered in the civil registry of the resident of the parties to the subsequent marriage. There must be due notice of such affidavit of reappearance to the spouses of the subsequent marriage. These spouses or any one of them may dispute the fact of reappearance in which case such fact shall be judicially determined. Note: When the question of reappearance of the absent spouse is appropriately presented for judicial determination, the automatic termination of the subsequent marriage does not take place. The termination takes place only in case of final judgment declaring and affirming such fact of reappearance. Art. 43. Termination of subsequent marriage referred to in the preceding article shall produce the following effects: (1) children of subsequent marriage conceived prior to its termination shall be considered legitimate; (2) absolute community of property/conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his/her share of the net profits of such property shall be forfeited in favor of common children or, if there are none, guilty spouses children by a previous marriage or in default of children, the innocent spouse; (3) donations by reason of marriage shall remain valid, except that if donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) innocent spouse may revoke designation of other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) spouse who contracted subsequent marriage in bad faith shall be disqualified to inherit from innocent spouse by testate and intestate succession. Note: In No. 1, the termination date is as mentioned and explained in Art. 41, that is automatically terminated upon recording of the affidavit of reappearance (executed by the absent spouse or any interested person).

Note: In No. 2, the share of the guilty spouse in the net profits of the community/conjugal property is forfeited in the order given (a) common children, if none (b) children of the guilty spouse by a previous marriage, but in default of a and b, (c) innocent spouse. The provision uses net profits which should be correlated with Art. 102, FC. Such net profits shall refer to the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution. Net profits cannot refer to the capital contributed by each spouse who retains his/her right thereto regardless of bad faith or good faith. Note: In No. 3, donations by reason of marriage (donation propter nuptias) made in favor of a done spouse who acted in bad faith shall be revoked by operation of law and revert back to the donor. Note: In No. 4, The revocation is not automatic or by operation of law. The revocation, if made, is valid even if the spouse in bad faith was appointed as irrevocable beneficiary in the insurance policy. Note: In No. 5, the disqualification of the present spouse who acted in bad faith from inheriting from the innocent spouse is by mandate (operation) of law and the succession covers both testate and intestate. Note: Nos. 2, 3, 4 and 5(Art. 43) and Art. 44 applies to marriages declared void ab initio or annulled by final judgment under Art. 40 and 45. Note: Spouse in bad faith he/she knew the whereabouts of the absent spouse, therefore, there is no well-founded belief that the absent spouse is dead, or when there is no danger of death under the circumstances, or when the 4-year or 2-year period had not been knowingly completed at the time of the celebration of the subsequent marriage. These issues may be litigated in a summary proceeding for declaration of absence of the missing spouse but the court can be misled by misrepresentation. Art. 44. If both spouses of subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. Note: The article provides another instance of a void marriage, when both spouses in the subsequent marriage acted in bad faith. But just like other void marriages, there must be a judicial declaration of nullity as required under Art. 40 and registration of such judgment in the civil registry under Art. 52. Note: Void marriages are therefore found in ART. 35, 36, 37, 38, 44 AND 53 OF THE FAMILY CODE. Art. 45. Marriage may be annulled for any of the following causes, existing at the time of marriage: (1) party in whose behalf it is sought to have marriage annulled was 18 years old but below 21, and marriage was solemnized without consent of parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining age of 21, such party freely cohabited with the other and both lived together as husband and wife; (2) either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife; (3) either partys consent was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting fraud, freely cohabited with the other as husband and wife; (4) t either partys consent 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) either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. Note: The article lists the grounds for annulment of marriage or grounds that render a marriage voidable (VALID UNTIL SET ASIDE BY A COMPETENT COURT). Note: Freely cohabiting with the other party as husband and wife is a ratifying act in case of absence of consent (where a party has reached the age of 21, in case of insanity (after the insane party has come to reason), in case of fraud (where the party had full knowledge thereof and therefore condoned the same) and in case of force, intimidation or undue influence (after the same has ceased). Note: Comparatively speaking, in No. 6 it is the affliction with a serious and incurable STD that makes the marriage voidable. In Art. 46 concealment of STD regardless of nature constitutes FRAUD making the marriage voidable. Note: A voidable marriage is valid until annulled by a court of competent jurisdiction. Thus, a second marriage contracted by a party to a previous marriage not yet annulled is null and void. Note: There are basic distinctions between a void marriage and voidable marriage. A void marriage is based on absence of essential requisites or requisites like non-age, absence of marriage license when required or marriage is void because of public policy like incestuous marriages and marriages between certain relatives while voidable marriage is based principally on vitiated consent. A void marriage is not subject to ratification while avoidable marriage is subject to ratification by cohabitation. The action or defense for declaration of nullity of marriage does not prescribe while the right to annul a marriage generally prescribes in five years. A judicial declaration is necessary for annulment of voidable marriage while no such decree is necessary except as required by Art. 40 (for purposes of remarriage). The effects on status of children in void marriage can be differentiated from those born of a voidable marriage (art. 54). Note: Marriages where one or both are between 18 and 21 without parental consent is voidable and cannot be ratified by the parents (only by the spouses themselves). Note: Parties must possess the mental capacity the law requires for makig a will. The true test is whether the party concerned could intelligently consent, i.e., that he knew what contract he was entering into. Intoxication which results in lack of mental capacity to give consent is equal to unsoundness of mind, so is somnambulism at the time of the wedding or unsound mind due to drug addiction. Note: Fraud, employment insidious words and machinations which induce a person to enter into a contract, without which, he would not have agreed to (Art. 1338CC). Note: Force/Violence is when in order to wrest consent, serious or irresistible force is employed. Intimidation is when one of the contracting parties is compelled by a reasonable and wellgrounded fear of an imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or ascendants, to give his consent (Art. 1335CC). Note: A threat to enforce ones claim through competent authority, if the claim is just or legal, does not vitiate consent (Art. 1335).

Note: Impotence (impotentia copulandi) refers to lack of power of copulation and not to mere sterility (impotentia generandi). Although impotency carries with it sterility, a sterile person is not necessarily impotent. The test is not the capacity to reproduce but the capacity to copulate. Burden of proof of impotency is upon the complainant to prove that the impotency existed at the time of the wedding, that it still existed, and that it is incurable, this is due to the presumption in favor of the marriage. Impotency being an abnormal condition, it should not be presumed. Presumption is in favor of potency. A man may be impotent insofar as his wife is concerned, but potent insofar as other women are concerned. In this case, it has been held that the woman can still have the marriage annulled, for her husbands impotency with her was as prejudicial as universal impotency. Note: Doctrine of Triennial Cohabitation if the wife still remains a virgin after living together with her husband for three years, the presumption is that the husband is impotent, and he will have to overcome this presumption (disputable presumption). Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) non-disclosure of previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) wifes concealment of fact that, at time of marriage, she was pregnant by a man other than her husband; (3) concealment of sexually transmissible disease, regardless of its nature, existing at time of marriage; or (4) concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at 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 the action for annulment of marriage. Note: This article must be read in connection with Art. 45, No. 3 (regarding fraud. The enumerated instances of fraud are exclusive. Note: Under NO. 1, moral turpitude refers to an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen or to society in general contrary to the accepted and customary rule of right and duty between man and man; conduct contrary to justice, honesty modesty or good morals includes murder, robbery, estafa, falsification, seduction, acts of lasciviousness, rape, etc. Note: Under No. 2, pregnancy exists at the time of the marriage and was caused by another man. If pregnancy existed after the marriage, not voidable. Husband must not have known of the pregnancy at the time of the marriage. It is the concealment and not mere pregnancy that is the thrust of the fraud. Note: BACCAT VS. BACCAT 72 PHIL 19, Six months after the marriage, the wife gave birth to a child developed during the full 9-month period. Wifes pregnancy was noticeable at the time of the marriage and it could be reasonably presumed that the husband knew it, making him in estoppel to annul the marriage. Note: AQUINO VS. DELIZO, L-15853, July 27, 1960 Where the defendant-wife was only more than 4 months pregnant at the time of marriage, it could not be said that her pregnancy was then readily apparent, especially if she was naturally pulmp or fat. It is only on the 6th month of pregnancy that the enlargement of the womans abdomen reaches a height above the umbilicus making the roundness of the abdomen more general and apparent. Note: Concealment of a child by another man already born before the marriage is not fraud. Concealment of pre-marital relations with another person is not fraud.

Note: In No. 3, the gravity of the disease is of no moment due to the employ of the words, regardless of its nature, as compared to the word serious in No. 6 of Art. 45. Note: In No. 4, the drug addiction, habitual alcoholism or homosexuality/lesbianism existed already at the time of the marriage because if developed in the course of marriage, such is only a ground for legal separation. It is the fact of concealment which constitutes fraud. Art. 47. Action for annulment of marriage must be filed by the following persons and within periods indicated herein: (1) for causes mentioned in no. 1 of Art. 45 by party whose parent or guardian did not give his or her consent, within 5 years after attaining age of 21, or by parent or guardian or person having legal charge of minor, at any time before such party has reached age of 21; (2) for causes mentioned in no. 2 of Art. 45, by same spouse, who had no knowledge of others insanity; or by any relative or guardian or person having legal charge of the insane, at any time before death of either party, or by the insane spouse during a lucid interval or after regaining sanity; (3) for causes mentioned in no. 3 of Art. 45, by the injured party, within 5 years after discovery of fraud; (4) for causes mentioned in no. 4 of Art. 45, by the injured party, within 5 years from the time force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in no. 5 and 6 of Art. 45, by the injured party, within 5 years after the marriage. Note: The prescriptive period to bring an action to annul a voidable marriage is FIVE (5) years as provided for above except under No. 2 which indicates a different period, which is at any time before the death of either party subject, however, to the basic condition that there is no ratification which takes place when the party with unsound mind after coming to reason, freely cohabited with the other as husband and wife. Note: if a man marries an insane girl knowing her to be insane, the marriage may still be annulled but not on the mans part (because of his prior knowledge), but on the part of the relatives of the insane party. Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between parties and to take care that evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon stipulation of facts or confession of judgment. Note: Two basic rules governing cases of annulment of marriage or declaration of nullity of marriage (even legal separation) (a) there must be no collusion between the parties nor fabrication or suppression of evidence; and (b) no judgment issued based on stipulation of facts or confession of judgment. Note: The State being concerned about the importance of marriage (Art.XV, Sec. 2), there must be a bonafide litigation of the issues and proof of factual conditions that justify such annulment, declaration or decree. Note: AM#02-11-11-SC, Sec. 5(4) It shall be filed in 6 copies. The petitioner shall serve a copy of the petition on the office of the Solicitor General and the Office of the City/Provincial Prosecutor, withn 5 days from the date of its filing and submit to the court proof of such service within the same period (failure to comply with nay of the preceding requirements may be a ground for immediate dismissal of the petition). Sec. 8 (2) If respondent fails to file an answer, the court shall not declare him/her in default. (3)Where no answer is filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties.

Sec. 9- (1) Within 1 month after receipt of the court order mentioned in par. 3 of Section 8, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any; (2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within 10 days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition. (3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 11- A pre-trial is mandatory. Sec. 13 (a) If the petitioner fails to appear personally the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner; (b) if respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within 15 days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Art. 49. During pendency of action and in absence of adequate provisions in a written agreement between spouses, the Court shall provide for support of spouses and custody and support of their common children. The Court shall give paramount consideration to moral and material welfare of said children and their choice of parent with whom they wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the other parent. Note: This article applies while the action of annulment of marriage (or for declaration of nullity) is pending and it seems clear that judicial measures above will be resorted to by the courts intervention only in the absence of adequate provisions in a written agreement between the spouses. Questions/issues to be resolved cover: (a) support of the spouses and children; (b) custody of children; (c) visitation rights. Art. 213 provides that, in case of separation of parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the child over 7 years of age, unless the parent chosen is unfit. Art. 50. Effects provided for by pars. (2), (3), (4) and (5) of Art. 43 and by Art. 44 shall also apply in proper cases to marriages which are declared ab initio or annulled by final judgment under Art. 40 and 45. The final judgment in such cases shall provide for liquidation, partition and distribution of the properties of the spouses, custody and support of common children, and delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings. All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Arts. 102 and 129. Note: The effects of termination of subsequent marriage set forth in Nos. 2 to 5 in Art. 43 (subsequent marriages due to decree of presumptive death) shall also apply to final judgment annulling a voidable marriage or declaring the latters nullity. Note: Unless previously adjudicated in a judicial proceeding, the final judgment of annulment or declaration of nullity shall dispose of the following issues: (a) liquidation, partition and distribution of the properties of the spouses; (b) custody and support of the children; (3) delivery of

presumptive legitimes of children; (d) such other matters like measures to protect the valid claims of creditors. Note: With respect to partition, the rule set forth in Articles 102 and 129 with respect to adjudication of conjugal dwelling and lot shall be followed, that is, unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of 7 are deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said children. Note: After the marriage is annulled, the obligation of mutual support between the spouses ceases but the children should still be supported by them. Note: Who Pays for Attorneys Fees If the action prospers and the annulment is granted, the Absolute Community Property shall be liable. If the marriage is not annulled, whoever brought the action shall pay for attorneys fees and other litigation expenses. Note: Instances when damages may be awarded when marriage is judicially annulled or declared void (a) if there has been fraud, force or intimidation in obtaining consent of one of the contracting parties; (b) if either party was, at the time of marriage, impotent and the other party did not know this; (c) if one party was insane, and the other was aware thereof at the time of the marriage; (d) if person solemnizing marriage was not legally authorized to perform marriage, and that fact was known to one of the contracting parties, but he or she concealed it from the other; (e) if a bigamous or polygamous marriage was celebrated and the impediment was concealed from plaintiff by the party disqualified; (f) if, in an incestuous marriage, or other marriage prohibited by Art. 32, the relationship was known to only one of the contracting parties, but was not disclosed to the other. Art. 51. In said partition, value of presumptive legitimes of all common children, computed as of date of final judgment of the trial court, shall be delivered in cash, property or sound securities, unless parties, by mutual agreement judicially approved, had already provided for such matters. The children or their guardian or trustee of their property may ask for enforcement of judgment. Delivery of presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional rights of the children accruing upon death of either of both parents; but value of properties already received under decree of annulment or absolute nullity shall be considered as advances on their legitime. Note: The presumptive legitimes of the children (a) are computed as of the date of the final judgment of the trial court; (b) shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement approved by the court, have already determined the above matters; (c) are considered as advances on their legitimes; and (d) will not prejudice the ultimate successional rights of the children. Art. 52. Judgment of annulment/absolute nullity of marriage, partition and distribution of the properties of the spouses and delivery of childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. Note: The final judgment of annulment or of absolute nullity of the marriage must be duly recoded in the civil registry. The partition and distribution of the properties of the spouses and delivery of childrens presumptive legitimes must be registered in the registries of property to

affect or bind third persons. As to the effect of the failure to record the final judgment of annulment or declaration of nullity, refer to Art. 53. Note: AM#02-11-11-SC, Sec. 23, The prevailing party shall cause the registration of the decree in the civil registry where the marriage was registered, the civil registry of the place where the family court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within 30 days from receipt of the copy of the decree. Note: Under AM#02-11-11-SC, the registered decree shall be the best evidence to provide the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of the petition and respondent as well as the properties or presumptive legitimes delivered to their common children. Art. 53. Either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. Note: If the final judgment of annulment or declaration of nullity of marriage is not recorded in the civil registry as required in Art. 52, the subsequent marriage of either of the former spouses shall be null and void as declared in the above article, clearly showing the legal importance of the registration in the civil registry. Art. 54. Children conceived or born before judgment of annulment or absolute nullity of marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. Note: Under Art. 89 of the Civil Code, children conceived or born of void marriages had the same status and rights as acknowledged natural children and are called natural children by legal fiction while those conceived of voidable legitimate before decree of annulment were considered legitimate and those conceived after such decree were also called natural children by legal fiction. The present article has changed Art. 89, CC. The reckoning date is the date the judgment of annulment or declaration has become final and executor. Children conceived or born before such date shall be considered legitimate. Necessarily, those conceived after that date are illegitimate. But those conceived before the reckoning date but born after said date are still considered legitimate. Take note of reference to Art. 36 and 53. Note: It can be said in light of Art. 165 that children born of void marriages are illegitimate and the exception to this is Section 36, where the rule is the same as governing voidable marriage. The last sentence of Art. 54 above assumes that the subsequent marriage complied with the registration requirement of Art. 53. Note: AS a rule, children born of void marriages are illegitimate. TITLE II. LEGAL SEPARATION Art. 55. Grounds for legal separation: (1) repeated physical violence/grossly abusive conduct directed against petitioner, a common child or petitioners child; (2) physical violence/moral pressure to compel petitioner to change religious/political affiliation; (3) respondents attempt to corrupt/induce petitioner or petitioners child to engage in prostitution or connivance in such corruption or inducement; (4) final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned; (5) respondents drug addiction or habitual alcoholism; (6) respondents lesbianism or

homosexuality; (7) respondents contracting of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) sexual infidelity or perversion; (9) respondents attempt against petitioners life; or (10) respondents abandonment of petitioner. Note: During Spanish regime, we had no absolute divorce in the Philippines, there was only legal separation governed by the Siete Partidas, the provisions on absolute divorce in the old Spanish Civil Code were never enforced in the Philippines. Before RA386(New Civil Code) we had a law on absolute divorce, it was Act 2710 which became effective on March 11, 1917 authorizing absolute divorce only on grounds of concubinage on the husbands part and adultery on the wifes party (which in either case required a criminal conviction before a divorce could be issued. Note: During Japanese regime, EO141 authorized divorces based on many grounds including unexplained absence of 3 years, loathsome disease and contagious disease, slander by deed and gross insult. Note: Act 2710 was repealed by the New Civil Code which took effect on Aug30, 1950 which merely recognizes relative divorce or legal separation on any of three grounds (1) adultery of the wife; (b) concubinage of the husband; and (c) attempt by one spouse upon the others life, needing no previous criminal conviction. Many new grounds for legal separation have been added by the Family Code. Note: Mere preponderance of evidence, not guilt beyond reasonable doubt will suffice to prove the existence of any of the ground save for No. 4). Note: For this articles purpose, child includes child by nature or by adoption. In No. 1, physical violence which connotes use of force, flogging, boxing, etc. must be repeated, meaning habitually done. abusive conduct which may negate violence but can certainly cause mental anguish and moral suffering, must be grossly manifested like continuous tongue-lashing, insults, coming home late in the evening everyday, etc. Note: In No. 2, even in the family, the spirit of democracy and freedom, particularly freedom of religion must prevail. Using physical violence or moral pressure (intimidation like withholding of support) to compel a spouse to change his religious or political affiliation gives rise to a ground to petition for the decree of legal separation. Note: In No. 3, basically this deals with prostitution. The acts are attempt or inducement or connivance. A family is supposed to be composed of members who are morally upright and when a spouse attempts to destroy the moral fiber that binds the family, separation can be a remedy. Note: In No. 4, the penalty must be imprisonment of more than six years and there must be final judgment of conviction. Pardon by the President will not erase the ground for legal separation. Note: In No. 5, note that the word addiction already connotes habituality. The SC said that drug addiction is one of the most pernicious evils that has crept into our society. Alcoholism, to be a ground for legal separation must be habitual. An alcoholic may suffer from mental imbalance and may endanger family love and solidarity because of frequent gallivanting of the erring spouse and the subsequent irrational conduct on his part, becoming a burden rather than a source of support for the family. Note: In No. 6, concealment of lesbianism or homosexuality is fraud that makes marriage voidable, but the offended spouse who ratifies the voidable marriage by not going to court to

annul the same within the prescriptive period of five years or by freely cohabiting with the offending spouse after knowing the fraud, may opt to continue with the marriage. It may turn out that the erring spouse continues to practice acts of lesbianism/homosexuality, thereby causing anguish and mental sufferings on the part of the offended spouse, in which case, the latter may sue for a decree of legal separation under this article. Note: In No. 7, note that not every subsequent marriage is bigamous as in the case of subsequent marriage based on absence of ones spouse under Art. 41. Thus, only a bigamous subsequent marriage is a ground for legal separation. Note: In No 8, sexual infidelity includes adultery on the part of the wife and concubinage on the part of the husband. Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married (Art. 333, RPC). Every sexual act is a crime in itself. Thus, if the husband pardons the wife, the pardon cannot extend to subsequent carnal acts. Adultery can be proved by circumstantial evidence as when the married woman goes to a motel room with the man, staying therein for considerable length of time, even allegedly for a conference for what else will they do there? CONCUBINAGE is committed by the husband who shall keep a mistress in the conjugal dwelling or shall have sexual intercourse under scandalous circumstances with a woman not his wife or shall cohabit with her in any other place (Art. 334, RPC). Only preponderance of evidence, not proof beyond reasonable doubt is required to prove adultery/concubinage for purposes of legal separation. Note: The term sexual infidelity need not be confined with the legal definition of adultery and concubinage. Perversion may well refer to sexual practices or acts tat are abnormal like sodomy, habits of pedophiles, belief in propriety of oral sex or sexual intercourse through the anus, etc. Sexual infidelity may involve also practices of sexual contacts between persons of the same sex, thus practices of married homosexuals and lesbians or even heterosexuals with persons even of the same sexes other than their spouses may constitute ground for legal separation. An imbalanced (even normal or heterosexual) or bisexual husband may carry sexual relationship with a homosexual and this is sexual infidelity, a ground for legal separation. Note: A decree of legal separation on ground of concubinage may issue upon proof by preponderance of evidence in an action for legal separation. Thus, no criminal proceedings or conviction is necessary. Note: In No. 9, mere attempt upon the life of the offended spouse, without physical injury may constitute a ground for legal separation. It may include attempted or frustrated parricide. Note: In No. 10, abandonment must be without justifiable cause and must be for more than 1 year. A justifiable cause of leaving the conjugal home may be avoiding repeated violence upon the abandoning spouse. Note: Legal Separation (LS)vs. Annulment of Marriage (AM) (1) grounds for LS are different from causes of AM, except with respect to homosexuality, lesbianism, drug addiction and habitual alcoholism; (2) LS does not destroy the marriage bond but in AM, once annulled the marriage bond is dissolved; (3) grounds for LS exist after the marriage while the grounds for AM take place at the time the marriage is celebrated; (4) there exists a valid marriage in LS while a marriage is being annulled because of its defect in AM. Note: Rules for Absolute Divorce at Present (a) Action brought HERE in the Philippines, will not prosper between Filipinos or between foreigners or between a Filipino and a foreigner;

(b) Action brought in a foreign court, will not be recognized here if between Filipinos even if allowed by said foreign court, will be recognized here if between foreigners provided (i) foreign court has jurisdiction to grant absolute divorce and (ii) said divorce is recognized as valid by their personal law (national or law of their domicile); and (c) If between a Filipino and a foreigner valid for both if obtained by the foreigner and valid according to his personal law. Note: Legal Separation vs. Separation of Property (a) LS must be done thru the court, SP may be done thru marriage settlement if there be one or through the courts if done during the existence of the marriage; (b) LS always involves separation of property, SP may exist with or without legal separation; (c) LS may be considered as a cause of separation of property, SP may be considered as one of the effects of legal separation (Art. 63, FC), (d) in LS, the spouses are necessarily separated, in SP, the spouses are not necessarily separated. Art. 56. Grounds for denial of petition for legal separation: (1) aggrieved party has condoned offense/act complained of; (2) aggrieved party consented to commission of offense/act complained of; (3) connivance between parties in commission of offense/act constituting ground for legal separation; (4) both parties have given ground for legal separation; (5) collusion between parties to obtain decree of legal separation; or (6) action is barred by prescription. Note: Condonation means forgiveness, express or implied (like sleeping together) and comes after, not before the offense; each sexual intercourse of the wife outside marriage is a separate act of adultery. Therefore, condonation of one act does not necessarily imply condonation of the others; the fact that the husband did not actively search for the wife after he discovered her adultery and her leaving the home is not condonation, it being the wifes duty to return to the conjugal home. Note: Consent may be express or implied and unlike condonation, consent comes before the act; is not entrapment to purposely catch the spouse; but it is not entrapment if the husband hires a person to have sex with hs wife in order for him to have evidence, this will be connivance (rule of equity). Note: Mutual guilt (recrimination)both spouses are in pari delicto, hence, there is no offended spouse who deserves to bring the action, even if one has been pardoned but the other has not. Note: Collusion refers to agreement whereby one will pretend to have committed the ground relied upon. Note: A & B agreed to separate from each other stipulating in writing that each one of them could get a mate without any interference by the other. B cohabited with C as a result of which A brought an action against B for legal separation. By the contract between A and B, A consented to the commission of concubinage by B. Note: Death of either spouses during pendency of petition will terminate the petition, because of action personalis moritur cum persona even if the petition has issues involving property, such will be resolved via rules on succession. Art. 57. Action for legal separation shall be filed within 5 years from time of occurrence of the cause.

Note: Prescriptive period for filing is 5 years from date of occurrence and not from discovery thereof. Five years is a long period of time for the offended spouse to discover the cause failure in which will certainly speak ill of him/her, that he/she must be a person who is inept, one who sleeps in his rights, lacking in alertness or just simply with intelligence below par unless he/she must have impliedly consented to the acts of the offending spouse. Art. 58. Action for legal separation shall in no case be tried before 6 months shall have elapsed since filing of petition. Note: This along with Art. 59 and 60 clearly indicate that the law discourages legal separation. Thus, a long cooling-off period of 6 months is provided to give a chance for the spouses to reconcile or for the petition to rethink his/her position (remembering the marital vows). The solidarity of the family is a statutory as well as constitutional concern of the State. After all, legal separation does not severe the marriage bond, it may generate or promote immorality. Note: The cooling off period does not mean the overruling of such other provisions as custody, alimony, and support pendent lite. Within the cooling off period, a hearing on an application for writ of preliminary injunction for the return of the wifes paraphernal property can be conducted. Art. 59. No legal separation may be decreed unless Court has taken steps toward reconciliation of spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. Note: The court must take steps and exert efforts to reconcile the spouses and even if the evidence so warrants, the court, before rendering judgment, must be fully satisfied that reconciliation is improbable. The steps towards reconciliation should carefully avoid discussion of the merits of the evidence on either side for that would make the trial of the case academic. The court should exert efforts that resolve around advice or counsel on the need for family solidarity and respect for family duties and obligations. Art. 60. No decree of legal separation shall be based upon stipulation of facts or a confession of judgment. In any case, Court shall order prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between parties and to take care that evidence is not fabricated or suppressed. Note: Law requires proof, not a mere stipulation of facts or confession of judgment. There must be a trial. An admission or confession made by the defendant outside the court may however may be used as evidence. Art. 61. After filing of petition for legal separation, spouses shall be entitled to live separately from each other. Court, in absence of written agreement between spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. Administrator appointed by the court shall have same powers and duties as those of a guardian under the Rules of Court. Note: Mere filing of the petition for legal separation shall give the spouses the right to live separately from each other. While there is a cooling-off period and the court is given the power to reconcile the spouses, the court cannot order the spouses to live together upon the filing or pendency of the petition for legal separation for this order will violate the first paragraph of Art. 61. Art. 62. During pendency of action for legal separation, provisions of Art. 49 shall likewise apply to the support of spouses and custody and support of common children.

Note: Art. 49 is to apply during the pendency of the action for legal separation. Thus, in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the support of the spouses and their common children and shall order to who custody of the children shall be given considering that under Art. 61, the mere filing of the petition for legal separation will entitle the spouses to live separately. Visitation rights may also be granted by the Court. Art. 63. Decree of legal separation shall have following effects: (1) spouses shall be entitled to live separately from each other, but marriage bonds shall not be severed; (2) absolute community/ conjugal partnership shall be dissolved and liquidated but offending spouse shall have no right to any share of net profits earned by absolute community/ conjugal partnership, which shall be forfeited in accordance with the provisions of Art. 43(2); (3) custody of minor children shall be awarded to the innocent spouse, subject to the provisions of Art. 213 of this Code; and (4) offending spouse shall be disqualified from inheriting from innocent spouse by intestate succession. Moreover, provisions in favor of offending spouse made in the will of the innocent spouse shall be revoked by operation of law. Note: The effects of the decree of legal separation are provided in this article while the effects upon acts of the offended spouses are provided for in Art. 64. Thus, the dissolution and liquidation of the conjugal partnership upon issuance of the decree of legal separation shall be automatic. Note: Continued existence of marriage after grant of legal separation means, neither party can have a paramour, spouse cannot insist on sexual intercourse with the other, even if the wife be the one guilty, she may continue using her maiden name. Art. 64. After finality of decree of legal separation, innocent spouse may revoke donations made by him or by her in favor of offending spouse, as well as designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. Revocation of donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before recording of the complaint for revocation in the registries of property shall be respected. Revocation of or change in designation of insurance beneficiary shall take effect upon written notification thereof to the insured. Action to revoke donation under this Article must be brought within five years from the time decree of legal separation become final. Note: The other effects of decree of legal separation are set forth in this article, that is, revocation of donations made in favor of offending spouse and designation of the offending spouse as beneficiary in the insurance contracts of the innocent spouse need positive act on the part of the offended spouse. Art. 65. If spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. Note: Reconciliation may be during pendency of the petition or after final decree has been issued. The manifestation must be joint and under oath. This is so because reconciliation requires mutual decision between the spouses. The manifestation is filed in the same case (the action filed by the offended party to secure the decree of legal separation). Art. 66. Reconciliation referred to in the preceding Articles shall have the following consequences: (1) legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) final decree of legal separation shall be set aside,

but separation of property and any forfeiture of the share of guilty spouse already effected shall subsist, unless spouses agree to revive their former property regime. Courts order containing the foregoing shall be recorded in the proper civil registries. Note: After the joint manifestation required by Art. 65, the effects of reconciliation are set forth in this article. Reconciliation stops and terminates the pending case for legal separation at whatever state it may be. A court renders an order to this effect after receiving the joint manifestation proving reconciliation to be duly recorded in the registry of property. Reconciliation sets aside the final decree of legal separation and unless the spouses agree to revive their former property regime in the manner set forth in Art. 67, the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist. The court likewise issues an order to this effect to be duly recorded in the registry of property. Art. 67. Agreement to revive former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) properties to be contributed anew to the restored regime; (2) to be retained as separated properties of each spouse; and (3) names of all their known creditors, their addresses and the amounts owing to each. Agreement of revival and motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, Court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties. Recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditors claim. Note: The agreement of revival must be approved by the court. Forfeiture in favor of common children or children of the guilty spouse by prior marriage if already effected shall be respected under Art. 66, subject to Art. 67.