FAMILY CODE E.O. No. 209 took effect on August 3, 1988 Chapter 1. Requisites of Marriage Art. 1.

Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a) Q: Why is marriage considered a special contract? A; Because as a rule, its nature, consequences, and incidents are governed by law and not subject to stipulation by parties. Q: What are the differences between the provisions of the NCC and the FC on marriage? A: The following are the differences: New Civil Code Negative statement (marriage is not an ordinary contract) Provides no express provision requiring difference in sex (implied for biological reasons) No express provision regarding the end or purpose of marriage Family Code Positive statement (marriage is a special contract) Contains an express provision requiring difference in sex (permanent union between a man and a woman) Contains an express provision regarding the end or purpose of marriage

Q; What kind of marriage does the law refer to? A: The law refers to: 1. Heterosexual In the civil code, difference in sex is implied by logical and pathological reasons while in the FC, it is expressly provided. Art. 5 constitutes what are needed to be capacitated to marry. The first one is difference in sex which is expressly required by the law. 2. There must be always a ceremony No specification as to what kind of ceremony. Note; in the case of Sylverio, the Court said that transsexual operation is not a ground to make changes in the birth certificate and it is not considered as a clerical error. However, the Court did not say that they dont have the capacity to get married. Under the Civil Code, the following are essential requisites: 1. Legal capacity 2. Consent freely given 3. Marriage license except for exceptional circumstances 4. Authority of solemnizing officer Ceremony is only a formal requirement. Before the Civil Code, the following are requisites: 1. Legal capacity 2. Consent freely givem Under the CC, as long as the parties are in good faith and the solemnizing officer had the authority to solemnize marriage. Marriage license is not essential, even after marriage, it can be obtained (however, this is abandoned in the CC) Family Code reduced that requirements of the Civil Code. 2 essential requisites: 1. Legal capacity by the contracting parties as determined by Art. 5 2. Consent freely given. Formal requisites: 1. Marriage license 2. Authority of the Solemnizing officer 3. Ceremony Under legal capacity, the following are required under Art. 5: 1. Difference in sex 2. Age- minimum requirement is 18 for both sexes (as provided by RA 6809) No minor can contract marriage 3. Absence of any impediment -

Note: the most important purpose of marriage is PROCREATION but the committe believes that marriage may also be only for companionship Q: What are the aspects of marriage? A; Marriage is a (1) contract and marriage as a (2) status. Ordinary Contract AS TO THE GENDER OF THE PARTIES AS TO DISSOLUTION Difference in gender is not required May be dissolved at will by parties Marriage as a Contract Only a man and woman can enter into marriage Permanent contract, can only be dissolved by death of either party, unless annulled or declared null and void for caused provided for by law Rights and duties are fixed by law except in the case of marriage settlements, where parties may fix their property relations Breach of obligation imposed by law doesnt give rise to damages. There may only be penal or civil sanctions.

AS TO WHAT GOVERNES THE PARTIES

The agreement of the parties have force and effect of law between them

AS TO BREACH IN THE OBLIGATION OF THE PARTIES

Breach of contract gives rise to an action for damages

MARRIAGE AS A STATUS 1. It is no longer just a contract but an inviolable social institution which is the foundation of a family which shold be protected by the StateArt. 15 Sec. 2. 2. It is an institution of public order or policy, it s nature, incidents, and consequences are governed by law and not subject to stipulation. 3. It carries with it implications in 2 fields: A. The realm of personal rights and obligations of the spouses Generally, personal matters between the husband and wife, ordinarily, will not be interfered with by the State B. The realm of property relations - several sanctions are applicable.

Q: Why is marriage a considered as a special contract? A: in an ordinary contract, the temrs and conditions are provided by the parties. In marriage, the law gives the terms and conditions. Q: What are things that cannot be stipulated by parties in marriage? A: the following cannot be stipulated: 1. Nature 2. Character 3. Effect Future spouses can stipulate property relations but such should not run counter the law.

Q; Can the future spouses stipulate on matters concerning their marriage? If yes, what are the matters which the future spouses can agree upon? A: Only with regard to the property regime which will govern their marriage. Their property relations may be fixed in a marriage settlement executed prior to the marriage ceremony. The marriage

settlements must not contravene the mandatory provisions of the FC. Q: What law governs the validity of marriage? A: the validity of marriage is determined by the law effective at the time of the celebration of the marriage. Furthermore, the nature of the marriage already celebrated cannot be changed by a subsequent amendment to the law.

A: The kind of marriage contemplated under the FC is a heterosexual and ceremonial. Q; What kind of ceremony is required. A: the law does not say what kind, BUT there must be a ceremony where the parties can give their consent in front of the solemnizing officer, Q: What is the minimum age for marriage? A: Under the FC, the parties must be at least 18 years of age. Under the NCC, 16 years old is the minimum for males and 14 years old is the minimum for females. Note: for purposes of determining the legal capacity of a person for marriage, we follow the nationality theory and NOT the domiciliary theory. Now, the Family Code uniformed the age for both male and female. The minimum age to marry is now 18 years old. Art. 5 must be read in conjunction with R.A. 6809 (An Act Lowering The Age Of Majority From Twenty-One To Eighteen Years, Amending For The Purpose Executive Order Numbered Two Hundred Nine, And For Other Purposes, December 13, 1989) R.A. 6809 also modified the provision on emancipation. Under the CC, there are 3 modes of emancipating: 1. By law (attaining the age of majority) 2. By marriage (minors are authorized by law to marry) 3. By concession - parents voluntarily release their children from their authority. Note: at present, there is only one mode of emancipationattaining the age of majority The following were changes introduced by R.A. 6809 1. Age of majority was lowered from 21 to 18 years old At present, anyone below 18 is considered as a minor, and in no case can they contract marriage. 2. Emancipation Release from parental authority Effect of emancipation: (Under FC and CC) General Rule: Once a person is emancipated, the principal effect is the person is qualified for all acts of civil life. Exception: Q: Can a minor contract a marriage? A: Qualify. Under the FC, Art. 14 a minor can get married with parental consent. In the light of RA6809. a minor can never contract marriage. The effect of this law is to lower the age of majority to 18. Art. 14 is modified by RA 6809 with respect to marriage Also, RA 6809 modified the effects of emancipation. Under the CC and the FC, and emancipated person is qualified for all acts of civil life. Q: Does it mean that a person can enter into any contract? A: General rule: upon reaching 18, a person can because he is emancipated and qualified for all acts of civil life. Exception: When it comes to marriage, as long as between the age of 18-21, PARENTAL consent is needed to be able to marry. When it comes to marriage, still, 1 parental authority is needed. For other purposes, a person is qualified already.

Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n) Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) ESSENTIAL REQUISITES OF MARRIAGE Q: What are the essential requisites of marriage? A; According to Art. 2 of the Fc, the essential requisites are: 1. Legal Capacity of the contracting parties who must be a male and a female 2. Consent freely given in the presence of the solemnizing officer. Note: these are qualifications that are very personal to the parties.

Q; What determines capacity? A: Article 5 provides that Any male or female, of the age o 18 years or upwards, not under any of the impediments mentioned in Art. 37 and 38, may contract marriage. Note the following: Difference in sex Age Absence of legal impediment to marry Q: what kind of marriage is contemplated under the FC?