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(Articles 1 to 54 follows Prof.

Ruben Balane's Outline)

MARRIAGE

Definition

Tolentino: Definitions of Marriage.-- The term marriage has 2 distinct meanings. In one sense, it is
limited to the procedure by w/c a man and a woman become husband and wife. In this concept, it is
defined as "that act by which a man and a woman unite for life, with the intent to discharge towards
society and one another those duties which result from the relation of husband and wife."
In the second sense, marriage is a status involving duties and responsibilities w/c are no longer
matter for private regulations, but the concern of the State. xxx As such, it is defined as "the civil
status of one man and one woman, legally united for life, with rights and duties which, for the
establishment of families and the multiplication of the species, are, from time to time may thereafter
be, assigned by law to matrimony." (Balane quoted Tolentino on the meaning of marriage.)

Purposes of Marriage.-- In general: (1) reproduction, (2) education of the offspring, and (3)
mutual help. The immediate purpose is the constitution of a complete and perfect community bet. 2
individuals of different sexes; the remote purpose is the preservation of the human race.

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.

Tolentino: Marriage a Social Institution.-- Marriage is a contract only in form, but in essence it is
an institution of public order, founded on custom and morality. It is a contract sui generis w/c cannot
be compared to any other contract.

Characteristics: (1) It is civil in character, bec. it is established by the State independently of its
religious aspect; (2) it is an institution of public order or policy, governed by rules established by law
w/c cannot be made inoperative by the stipulation of the parties; (3) it is an institution of natural
character, bec. one of its objects is the satisfaction of the intimate sentiments and needs of human
beings for the organic perpetuation of man.

Balane: Marriage is a contract. Art. 52, NCC provides that M is not a mere contract. Art. 1, FC, on the
other hand provides that M is a special contract. Both emphasize that M is not just a contract.

Tolentino: Differentiated from Ordinary Contracts: (1) As to parties: Ordinary contracts (0C)
may be entered into by any no. of persons, whether of the same or different sex, while marriage (M)
can be entered into only by one man and one woman; (2) As to contractual rights and obligations: In
OC, the agreement of the parties have the force of law bet. them while in M, the law fixes the duties
and rights of the parties; (3) As to termination: OC can be terminated by mutual agreement of the
parties, while M cannot be so terminated; neither can it be terminated even though one of the parties
subsequently becomes incapable of performing his part; and (4) As to breach: Breach of OC gives rise
to an action for damages, while breach of the obligations of a husband or a wife does not give rise to
such an action; the law provides penal and civil sanctions, such as prosecution for adultery or
concubinage, and proc. for legal sep.; (5) As to effect: OC do not create status, M does. (no. 5 was
added by Balane.)

Balane: Quite logically, marriage is the starting point of any family relation bec. in our legal system,
the family is the keystone of society, the basic unit of society. And marriage is the keystone of the
family. This is a value judgement. Marriage does not have to be the keystone of the family. But we
choose it to be that way.
xxx Much arguments have been raised regarding the status of children on the distinction of
legitimate from illegitimate children. There are those who propose the abolition of the distinction as it
is not the fault of the illegitimate child that he is such. But one of the uninentended consequence of
abolishing the distinction is to erode the institution of marriage. Are we ready to take that path?

Tolentino: Principal Effects of Marriage: (1) personal and economic relations bet. the sps., w/c
become sources of impt. rights and duties; (2) the legitimacy of sexual union and of the family; (3)
the personal and economic relations bet. parents and children, w/c gives rise to considerable rights
and duties; (4) the family rel'p, from w/ flow various juridical consequences, such as impediments to
marriage, right to support, and rights to inheritance; (5) incapacity of the sps. to make donations to
each other; (6) disqualification of the sps. to testify against each other; (7) modification of crim. liab.,
such as by way of exemption when one spouse defends the other from unlawful aggression or is his
accessory after the fact, or mitigation when the crime is committed in vindication of a grave offense to
the spouse, or aggravation when the injured is the spouse of the offender, such as in parricide.

Contract to Marry.-- Where parties mutually agree to marry each other at some future time, there is
a contract to marry. xxx It can be distinguished from an ordinary contract in that the promise of either
party cannot be enforced by court action, bec. the consent to the actual marriage must be purely
voluntary.

Breach of Promise.-- There is repudiation where before the time set for the performance of
the marriage, one party declares that he will not carry it out, or refuses to further communicate w/ or
maintain a suitor's relation w/ the other party, or puts himself in a position where he cannot execute
the contract, as when he marries another.

Damages for Breach.-- [T]he action for breach of promise to marry has no standing in the
civil law, apart from t he right to recover money or property advanced by the plaintiff upon the faith of
such promise." (De Jesus v. Syquia, 58 P 866.)
We believe that an action based purely on breach of the contract to marry, will not lie. xxx It is
true that she may suffer from wounded feelings and mental anguish, and these are recognized as
elements of moral damages under article 2217; but before such damages can be recovered, there
must first be a right of action, and there is no law granting a right of action on breach of contract to
marry. However, we believe that if the action for damages is based on tort or quasi-delict, or on
articles 19, 21, or 22 of the present Code, there would be a sufficient legal basis or right of action for
damages.

Effect of Seduction.-- xxx [I]t is possible legally to base an action upon the carnal
knowledge of the pltff. by the def., or upon the seduction, as a fact separate from the contract to
marry. The promise to marry would only be the means of accomplishing the seduction. If the
offended woman has been led to submit to carnal intercourse by the promise of marriage, she should
be entitled to damages, not only on the basis of tort or quasi-delict, but under the provisions of art. 21.
xxx The essence of the action would not be the breach of the contract, but the tortious or
wrongful act or seduction accomplished through the deceitful promise.

Abuse of right.-- Even when there has been no seduction, we believe that under art. 19,
damages, may under certain circumstances, be recovered against a party who repudiates a contract to
marry; but the basis of the action cannot be the mere breach of contract itself, but some act
constituting an abuse of right.

Unjust enrichment.-- Another legal basis in connection w/ a breach of contract to marry is


art. 22 on unjust enrichment. xxx Gifts to the person to whom the donor is engaged to be married are
considered legally as conditional, and upon breach of the engagement by the donee, may be
recovered by the donor. (see Domalagan v. Bolifer, 33 P 471.)

Oral Agreement.-- Under 1403 "an agreement made in consideration of marriage, other a
mutual promise to marry," shall be unenforceable by action, unless the same, or some note or
memorandum thereof, be in writing, and subscribed the party sought to be charged. (Statute of
Frauds.)
It seems to us that the writing is not necessary in an action for damages for breach of a
contract to marry. First, where the party who sues for damages has already given the consideration
for the promise of the def., it is unjust to deny the action on the plea of the Statute of Frauds. Second,
the Statute should apply only when the action is to enforce the contract; but not when it is for
damages for breach.

Goitia v. Campos Rueda [35 P 252] -- F: This is an action for support by G (wife) against R
(husband). After 1 mo. of marriage, R repeatedly demanded from G to perform "unchaste and
lascivious acts on R's genitals." Bec. of G's refusal, R maltreated G by word and deed, inflicting bodily
injuries on G. To escape R's lewd designs and avoid further harm, G left the conjugal home and took
refuge in her parent's house. G filed an action for support w/ the trial court. this was dismissed on the
ground that R could not be compelled to give support if G lived outside of the conjugal home, unless
there was legal sep. G appealed.

HELD: Marriage is something more than a mere contract. It is a new relation, the rights, duties, and
obligations of w/c rest not upon the agreement of the parties but upon the general law w/c defines and
prescribes those rights, duties, and obligations. Marriage is an institution, in the maintenance of w/c in
its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at
any shorter period by virtue of any contract they may make. The reciprocal rights arising from this
relation, so long as it continues, are such as the law determines from time to time and none other.
When the legal existence of the parties is merged into one by marriage, the new relation is regulated
and controlled by the state or govt upon principles of public policy for the benefit of society as well as
the parties. And when the object of a marriage is defeated by rendering its continuance intolerable to
one of the parties and productive of no possible good to the community, relief in some way should be
obtainable.
The law provides that the H, who is obliged to support the wife, may fulfill this obligation either
by paying her a fixed pension or by maintaining her in his own home at his option. However, the
option given by law is not absolute. The law will not permit the H to evade or terminate his obligation
to support his wife if the wife is driven away from the conjugal home bec. of the H's own wrongful acts.
In this case, where the wife was forced to leave the conjugal abode bec. of the lewd designs and
physical assaults of the H, the W may claim support from the H for separate maintenance even outside
of the conjugal home.

I. REQUISITES OF A VALID MARRIAGE

Balane: There are two kinds of requisites, the essential and the formal. There are three essential
requisites: (1) legal capacity of the contracting parties, (2) consent freely given and (3) difference in
sex (other commentators opine that this third is already included in legal capacity.)
On the other hand, there are also 3 formal requisites: (1) authority of the solemnizing officer,
(2) a valid marriage license and (3) some form of cermeony.

Distinction.-- Absence, Defect, Irregularity of Requisites:


(1) Absence of a requisite, whether essential or formal, renders the M void
Absence means a total want of a requisite. E.g., the total absence of a marriage license
(absence of a formal requisite) w/c renders the M void.
(2) A defect in the essential requisite makes the M voidable
E.g., where the consent of either party was vitiated by intimidation.
(3) An irregularity in the formal requisite does not affect the validity of the marriage but this is
w/o prejudice to the criminal, civil or administrative liab. of erring officials.
E.g., where the marriage license was issued w/o complying w/ the 10-day posting requirement.
(Art. 17, FC.)

1. Difference in Sex (an essential requisite)-- Articles 2 par. 1, 4 par. 1, 39

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; xxx
xxx

Balane: The phrase "who must be a male and a female" was not found in the NCC.
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).
xxx

Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx

2. Some Form of Ceremony (a formal requisite.)-- Articles 3 par. 3, 4 par. 1, 6

Art. 3. The formal requisites of marriage are:


xxx
(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.

Tolentino: Ceremony of Marriage.-- The requirement of a marriage ceremony prevents the


recognition in the Phils. of what are known as "common law marriages." A common law marriage is a
present agreement bet. a man and a woman w/ capacity to enter into such rel'p, to take ea. other as H
and W, followed by cohabitation.

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).
xxx

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.

Balane: Requisites of some form of ceremony:


(1) Personal appearance of the contracting parties in the presence of the solemnizing officer.
This rules out proxy marriages.
(2) The declaration that they declare in some manner that they take each other as H & W.
This provision is worded broadly. There is no set formula for the declaration, no particular words are
required. It does not even have to be oral provided that there is sufficient manifiestation of their will
that they take each other as H & W.
(3) Presence of at least 2 witnesses of legal age. Some say that the absence of this 3rd
requisite renders the marriage void. Others say it is only an irregularity.

Tolentino: It is not necessary to the validity of the marriage that the contracting parties should recite
precisely the words of the statute. It is enough that the words employed evidence mutual consent.

Failure to Sign or Issue Certificate.-- The certificate is merely of evidentiary value, and failure to
sign the same does not render the marriage a nullity. The consent can be proved by other competent
evidence, such as the testimony of the solemnizing officer, of the parties themselves, of the witnesses
to the marriage, and of others present at the wedding.

Martinez v. Tan [12 P 731] -- F: Pltff. Rosalia Martinez commenced this action for the cancellation
of the cert. of marriage and for damages. Pltff. claimed that what took place before the justice of the
peace did not constitute a legal marriage under Gen. Orders No. 68, Sec. 6, "No particular form for the
ceremony of marriage is required, but the parties must declare, in the presence of the person
solemnizing the marriage, that they take each other as husband and wife." CFI found for def.

HELD: The parties addressed a signed petition to the justice of the peace stating that they had agreed
to marry, and asking the justice of the peace to marry them. Before the justice of the peace, they
stated under oath that they ratified the contents of their petition and insisted on what they asked for.
This statement was signed by them, in the presence of witnesses that they produced. A certificate
was then made out by the justice of the peace, signed by him and the witnesses, stating the parties
had been married by him. Both the parties knew the contents of the document w/c they signed.
Under the circumstances, what took place before the justice of the peace amounted to a marriage.

(not in Balane's outline)

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in
open court, in the church, chapel or temple, or in the office of the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in cases of marriages con-
tracted at the point of death or in remote places in accordance with Article 29 of this Code,
or where both of the parties request the solemnizing officer in writing in which case the
marriage may be solemnized at a house or place designated by them in a sworn statement
of that effect.

Sempio-Dy: This provision is only directory, not mandatory, so that non-compliance therewith will not
invalidate the marriage.

SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 (1960)] - The mere fact that the marriage took
place on a Sunday also would not necessarily vitiate the marriage on the ground that it constitutes a
violation of the requirement that the marriage shall be solemnized publicly in the office of the judge in
open court.

3. Legal Capacity (an essential requisite.)-- Art. 2 par. 1

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; xxx

a. Age.-- Articles 5, 35 par. 1, 45 par. 1, 47 par. 1, 39

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.

Tolentino: Age of Consent.-- The age for each party provided in Art. 5 is generally known as the
"age of consent." for marriage. Eighteen yrs is the "age of consent" bec. below this age, a party to a
marriage cannot give a binding valid consent.

Balane: 18 yrs. old is an absolute minimum.

Tolentino: Age of Legal Capacity.-- For a perfect consent that would result in a valid binding
marriage, the parties should be 21 yrs. of age. The age of 21 is, thus, the "age of legal capacity" to
marry.

Effect of Penal Law.-- Under Art. 344, RPC, the marriage of the offender w/ the offended party shall
extinguish the criminal action or remit the penalty already imposed upon him.
Q: If the victim of the crimes of rape, seduction, adbuction, and acts of lasciviousness
happens to be a girl less than 18 yrs. old, can she validly marry the offender?
A: We believe that she can. It is submitted that the circumstances contemplated by the RPC
are of an exceptional character, and shld be considered as an exception to the provisions of the FC on
the legal capacity to marry. xxx If merely bec. she is below the age of consent she will not be
permitted to marry the offender, then we will have the absurd case where the law gives a remedy w/
one and denies it w/ the other hand.

Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the
consent of parents or guardians;
xxx

Balane: There is here an absolute absence of an essential requisite.

Art. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was 18
years of age or over but below 21, and the marriage was solemnized without the consent
of the parents, guardian or person having substitute parental authority over the party, in
that order, unless after attaining the age of 21, such party freely cohabited with the other
and both lived together as husband and wife;
xxx

Tolentino: Want of Parental Consent.-- The law does not expressly authorize the parent whose
consent is required, to ratify the marriage. xxx We believe that xxx the ratification by the parent
whose consent is wanting must be recognized as sufficient to validate the marriage, provided such
ratification is made before the party to the M reaches 21 yrs. old. Art. 47, par. 1 recognizes the right
of such parent to ask for the A of the M bef. the child who has married w/o parental consent reaches
the age of 21. This right can be waived. Besides, if the nullity proceeds from the absence of consent,
there is no juridical reason why such defect cannot be cured by subsequent confirmation. xxx

Art. 47. The action for annulment of marriage must be filed by the following persons
and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or
guardian did not give his or her consent, within five years after attaining the age of 21; or
by the parent or guardian or person having legal charge of the minor, at any time before
such party reached the age of 21;
xxx

Balane: This kind of marriage can be ratified by cohabitation for a reasonable period of time after the
minor reaches the age of 21. Here ratification can set in even before the prescription sets in.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx

b. Relationship.-- Articles 37, 38 par. 1 to 8, 39

Art. 37. Marriages between the following are incestuous and void from the
beginning, whether the relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.

Art. 38. The following marriages shall be void from the beginning for reasons of
public policy:
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the
fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
xxx

Tolentino: Collateral Blood Relatives.-- Marriages bet. nephews and aunts, uncles and nieces, and
first cousins are prohibited under par. (1). This prohibition is based on scientific opinion as well as on
public opinion. They are contrary to good morals. Although not conclusive, there is scientific and
expert opinion that, except in rare cases, children of first cousins suffer from organic defects, and in
many instances are idiots, weak-minded, deaf, nearsighted, etc., in other words, their marriage tends
to weaken the race.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx

c. Prior Marriage.-- Articles 35 par. 4, par. 6, 40, 41, 42, 43, 44, 53 & 39

Balane: There are 3 kinds of marriage that are void bec. of a prior marriage:

1. A bigamous or polygamous marriage, not falling under Art. 41.

There are 3 requisites under Art. 41:


a. Absence of the prior spouses for at least 4 consecutive yrs. or at least 2
consecutive yrs. if it falls under Art. 391, NCC.
b. The spouse present has a well-founded belief that the absent spouse was
already dead.
c. The institution by the spouse present of a summary proceeding of
presumptive death of the absent spouse. A declaration by the court of the
presumptive death is of course required.

2. In Art. 40 where the marriage was contracted after a void ab initio marriage w/c has not
been declared void by final judgment.

3. In Art. 53 in case of a subsequent marriage w/c does not comply w/ the requirements of Art.
52.
In Art. 52, you have to do 3 things:
a. Judgment of annulment or nullity of marriage must be registered in the appropriate registry.
b. The registration of the partition and distribution of the properties of the spouses in the
appropriate civil registry.
c. The delivery of the common children's presumptive legitime.

Art. 35. The following marriages shall be void from the beginning:
xxx
(4) Those bigamous or polygamous marriages not falling under Article 41;
xxx.
(6) Those subsequent marriages that are void under Article 53.

Art. 40. The 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.

Tolentino: [F]or purposes of remarriage it would be necessary to such void M to secure a final
judgement declaring it null and void from the beginning. W/o such final judgment, the previous void
marriage would constitute an impediment to the remarriage, and a marriage license may be denied.
xxx This article applies only when a license is to be obtained for a subsequent marriage.

DOMINGO V. CA [226 SCRA 572 (1993)] - A spouse may petition for the declaration of nullity of her
marriage for a purpose other than her remarriage.

F: Delia Domingo filed a pet. for decl. of nullity of her marriage w/ Roberto Domingo, on the ground
that, unknown to her, he was previously married at the time of their marriage. She prays that their
marriage be declared null and void and, as a consequence, to declare that she is the exclusive owner
of all properties she acquired during the marriage and to recover them from him.
Roberto moved to dismiss the petition on the ground that the marriage being void ab initio, the
petition for decl. of nullity is unnecessary citing Peo. v. Aragon and Peo. v. Mendoza. Roberto claims
that decl of nullity is necessary under Art. 40, FC only for the purpose of remarriage. The lower court
denied the motion. CA affirmed the denial.

HELD: The Declaration of nullity of a marriage under Art. 40 may be resorted to even for a purpose
other than remarriage.
Crucial to the proper interpretation of Art. 40 is the position of the word "solely." xxx. As it is
placed, it is meant to qualify "final judgment." Had the provision been stated as follows: "The
absolute nullity of a previous marriage may be invoked solely for purposes of remarriage...," the word
"solely" will qualify "for purposes of remarriage" and the husband would have been correct.
That Art. 40 as finally formulated included the significant clause denotes that such final
judgment declaring the previous marriage void need not be obtained only for purposes of remarriage.

ATIENZA V. BRILLANTES [243 SCRA 32 (1995)] - F: This is an administrative complaint filed by


Atienza for Gross Immorality and Appearance of Impropriety against J. Brillantes, Presiding Judge of
MTC, Mla. It was alleged in the complaint that Brillantes has been cohabiting w/ Yolanda De Castro (w/
whom Atienza had 2 children) when he (Brillantes) was already married to one Zenaida Ongkiko w/
whom he has 5 children. xxx Resp. denies having been married to Ongkiko, although he admits
having 5 children w/ her. He alleges that while he and Ongkiko went through a marriage ceremony,
the same was not valid for lack of marriage license. The second marriage bet. the two also lacked the
required license. He claims that when he married De Castro in LA, California, he believed, in all GF and
for all legal intents and purposes, that he was single bec. his first marriage was solemnized w/o a
license.

HELD: Under the FC, there must be a judicial decl. of the nullity of a previous marriage bef. a party
thereto can enter into a 2nd marriage. (Art. 40.) Art. 40 is applicable to remarriages entered into after
the effectivity of the FC regardless of the date of the first marriage. Said art. is given "retroactive
effect insofar as it does not prejudice or impair vested or acquired rights in accordance w/ the NCC or
other laws." (Art. 256, FC.) This is particularly true w/ Art. 40 w/c is a rule of procedure. Resp. has not
shown any vested right that was impaired by the application of Art. 40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their
retroactive application to pending actions. The retroactive application of procedural laws is not
violative of any right of a person who may feel that he is adversely affected. The reason is that as a
general rule no vested right may attach to, nor arise from, procedural laws.

Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years and the spouse present had a
well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only 2 years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.

Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four years since
the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has
been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.

Tolentino: The period was reduced in the FC to 2 years in the foregoing cases.

REPUBLIC V. NOLASCO [220 SCRA 20 (1993)] - The declaration of presumptive death under Art.
41, FC is available only for the purpose of remarriage.
F: Gregorio Nolasco was a seaman. During one of the calls of his ship to England, he met Janet
Monica Parker, a British subject. From that chance meeting, Janet lived w/ Nolasco on his ship for 6
mos. When Nolasco's contract expired in 1960, Janet went w/ him in returning home to San Jose,
Antique. In Jan. 1982, Nolasco married Janet in Catholic sites in Antique.
After the marriage, Nolasco obtained another employment contract as a seaman, leaving his
pregnant wife w/ his parents. Sometime, in 1/83, while working overseas, Nolasco received a letter
from his mother informing him that Janet had already given birth to his son. The letter also informed
him that Janet left Antique after giving birth. xxx
In 88, or 5 yrs. after the disappearance of Janet, Nolasco filed an action for the decl. of
presumptive death of his wife Janet under Art. 41, FC, claiming that all his efforts to look for her proved
fruitless.
xxx The trial court granted the petition. CA affirmed the ruling. Hence this petition for review.

HELD: 1. A petition to declare an absent spouse presumptively dead may not be granted in the
absence of any allegation that the spouse present will remarry.

2. There are 4 requisites for the declaration of presumptive death under Art. 41:
1. That the absent spouse has been missing for 4 consecutive years, or 2 consecutive yrs. if
the disappearance occurred where there is a danger of death under the circumstances laid down in
Art. 391.
2. That the spouse present wishes to remarry
3. That the spouse present has a well-founded belief that the absentee is dead.
4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee.

The Court believes that resp. Nolasco failed to conduct a search for his missing wife w/ such
diligence as to give rise to a "well-founded belief" that she is dead. The Court considers the
investigation allegedly conducted by Nolasco in his attempt to ascertain the whereabouts of Janet as to
sketchy to form the basis of a reasonable or well-founded belief that she was already dead. For
instance, when he arrived in Antique, instead of seeking the help of local authorities or of the British
Embassy, he secured another seaman's contract and went to London. We do not consider that walking
into a major city w/ a simple hope of somehow bumping into one particular person there xxx can be
regarded as a reasonable diligent search. The Court also views Nolasco's claim that Janet declined to
give any info. as to her personal background even after marrying Nolasco as too convenient an excuse
to justify his failure to locate her.

BIENVENIDO V. CA [237 SCRA 676 (1994)] - When a man contracts a subsequent marriage while
the first marriage is subsisting, the second marriage as a general rule is void for being bigamous. He
who invokes that the second marriage is voidable for being an exception under Art. 83 of the NCC has
the burden of proving it.

F: Aurelio Camacho married Conseja Velasco in '42. In '62, w/o this marriage being dissolved,
Aurelio married Luisita Camacho in Tokyo. In '67, Aurelio met Nenita Bienvenido. Aurelio courted and
won her and they cohabited until Aurelio's death in '88. In '82, Aurelio bought a house and lot. In the
deed of sale and in the TCT in his name, he was described as single. In '84, he sold the said house and
lot to Nenita. When Aurelio died, Luisita filed an action to annul the sale to Nenita alleging that it was
in fraud of her as the legitimate wife of Aurelio. Nenita opposed the action claiming that she was a
buyer in GF. The trial court upheld the sale in favor of Nenita. The CA reversed. Hence, this petition
for review.

HELD: There is no presumption that the marriage bet. Aurelio and Luisita is valid. As a general rule,
under Art. 83, NCC, a subsequent marriage contracted while the previous one is still subsisting is void.
There are exceptions to this rule but he who is invoking the exception has the burden of proving the
existence of the conditions for the said exception to arise. In the case at bar, the burden of proof was
on Luisita to show that at the time of her marriage to Aurelio, Aurelio's first wife had been absent for at
least 7 yrs and that he had no news that she was alive. She failed to discharge this burden. What
applies, therefore, is the general rule xxx. Consequently, there is no basis for holding that the prop. in
question was prop. of his conjugal partnership bet. Luisita and Aurelio bec. there was no partnership in
the first place.

Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded
in the civil registry of the residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed.

Balane: Marriage under Art. 41 is valid unless terminated under Art. 42. Notice that the law uses the
term "terminated" and not annulled. This is bec. marriage under Art. 41 is a good marriage.
The effect of the affidavit of reappearance is that the subsequent marriage is terminated unless it
is judicially challenged.

Tolentino: If both parties to the subsequent marriage acted in BF (knowing that the absent spouse is
alive), the said marriage is void ab initio under Art. 44.

Q: If only one party has acted in BF, is the M valid?


A: If the spouse who contracted the 2nd M knew that in spite of the absence of his spouse for
the period provided in 41 said absent spouse was alive, his 2nd M shld be considered void as bigamous
under 35(4), bec. an essential element in 41 to make it an exception is wanting.
If such present spouse has acted in GF and the declaration of presumptive death has been
obtained, the BF of the 2nd spouse will not affect the validity of the M, but the provisions of 43 will
operate against him, such as the revocation of donations by reason of M made to him, of his
designation as beneficiary in any insurance of the innocent spouse, and his disqualification to inherit
from the innocent spouse.

When No Action Taken.-- If the absentee reappears, but no step is taken to terminate the
subsequent M, either by affidavit or by court action, his mere reappearance, even if made known to
the spouses in the 2nd M, will not terminate such M.

[I]t is incorrect to say that the first M is dissolved by the celebration of the 2nd. It would be
more accurate to say that since the 2nd M has been contracted bec. of a presumption that the former
spouse is dead, such presumption continues in spite of his physical reappearance, and by fiction of
law, he must be regarded as legally an absentee, until the subsequent M is terminated as provided by
law. The result of this is the suspension of the legal effects of M as to him as long as the 2nd M
subsists.

GOMEZ V. LIPANA [38 S 615 (1958)] - Where a husband and his second wife from whom he
concealed his first marriage, acquired properties during their marriage, the second marriage being
void, is subject to collateral attack in the intestate proceedings instituted by the judicial administratrix
for the forfeiture of the husband's share under Article 1417, Spanish Civil Code (no longer in force) .
"The legal situation arising from these facts is that while insofar as the second wife was concerned, she
having acted in good faith, her marriage produced civil effects and gave rise, just the same, to the
formation of the conjugal partnership wherein she was entitled to an equal share upon dissolution."
The only JUST AND EQUITABLE solution is to give one-half of the properties to the second wife, and the
other half to the conjugal partnership of the first marriage.

CONSUEGRA V. GSIS [37 S 315 (1971)] - Where the husband designated his second family as
beneficiaries of his life insurance policy, upon his death, both his first wife and second family share 50-
50 in the benefits. Since the first marriage has not been dissolved, his wife remains as his legal heir.
Although the second marriage is presumed void, having been contracted during the subsistence of the
first marriage, there is a need for a judicial declaration of its nullity, which is no longer possible, the
death of the husband having terminated the second conjugal partnership of gains.
Baviera: The court should not have applied Gomez v. Lipana, since there is no provision in the Civil
Code giving effect to a void marriage in good faith.

PEOPLE V. MENDOZA [95 S 845 (1954)] - A subsequent marriage contracted by any person during
the lifetime of his spouse is illegal and void from its performance, and no judicial decree is necessary
to establish its invalidity. A prosecution for bigamy based on said void marriage will not lie.

PEOPLE V. ARAGON [100 P 1033 (1957)] - cited People v. Mendoza

Baviera: As a defense in bigamy, there is no need for judicial declaration of nullity of a void marriage;
as far as determination of property relations is concerned, there is a need for such judicial declaration
for purposes of remarriage.

Art. 43. The termination of the subsequent marriage referred to in the preceding
Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its termination shall
be considered legitimate, and their custody and support in case of dispute shall be decided
by the court in a proper proceeding;
(2) The absolute community of property or the conjugal partnership, as the case
may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common children or, if there are
none, the children of the guilty spouse by a previous marriage or, in default of children,
the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee
contracted the marriage in bad faith, such donations made to said donee are revoked by
operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted
in bad faith as beneficiary in any insurance policy, even if such designation be stipulated
as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be
disqualified to inherit from the innocent spouse by testate and intestate succession.

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by operation of law.

Tolentino: If the subsequent marriage is not terminated by the subsequent reappearance or by judicial
declaration, but by death, do these effects arise?
A: It is submitted that generally if a subsequent M is dissolved by the death of either spouse,
the effects of dissolution of valid M shall arise. The GF or BF of either spouse can no longer be raised,
bec., as in annullable or voidable M, the M cannot be questioned except in a direct action for
annulment.
But if both parties acted in BF, under 44, the M is void ab initio. In such case, the validity of
the M can be attacked collaterally at any time, and the effects provided on 44 can be applied even if
the dissolution is by death of one of the spouses.

Art. 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage
shall be null and void.

Art. 52. The judgment of annulment or of absolute nullity of the


marriage, the partition and distribution of the properties of the spouses, and
the delivery of the children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same
shall not affect third persons.
Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx

d. Crime.-- Articles 38 par. 9, 39

Art. 38. The following marriages shall be void from the beginning for reasons of
public policy:
xxx
(9) Between parties where one, with the intention to marry the other, killed that
other person's spouse, or his or her own spouse.

Balane: Art. 38 (9) used to be Art. 80 (6) of the NCC. Two changes were made: (1) the killing must
be w/ the intention to marry the other; (2) conviction is not required, a preponderance of evidence
being sufficient.

Tolentino: Killing of Spouse.-- It is submitted that a criminal conviction for the killing is not
necessary to render the marriage void under the FC. The removal of the requirement by the FC must
be taken as deliberate.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx

e. Physical capability.-- Articles 45 par. 5, 47 par. 5

Art. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
xxx
(5) That either party was physically incapable of consummating the marriage with
the other, and such incapacity continues and appears to be incurable; xxx
xxx

Balane: Physical Incapacity: Requisites: (1) The incapacity exists at the time of the celebration of
the M; (2) Such incapacity must be permanent (it continues to the time when the case for annulment
is being tried) and incurable ; (3) It must be unknown to the other contracting party; (4) the other
spouse must not himself/ herself be impotent.
This kind of marriage cannot be ratified by ratification.

Tolentino: xxx The physical incapacity referred to by the law as a ground for A of M, is impotence
[impotentia copulandi/ coeundi as distinguished from impotentia generandi (sterility)], or that physical
condition of the H or the W in w/c sexual intercourse w/ a normal person of the opposite sex is
impossible.
Impotence refers to lack of power to copulate, the absence of the functional capacity for the
sexual act. The defect must be lasting to be a ground for annulment. The test of impotence is not the
capacity to reproduce, but the capacity to copulate. (Sarao v. Gueverra.)

The refusal of the wife to be examined does not create the presumption of her impotency bec.
Filipino girls are inherently shy and bashful. The trial court must order the physical examination of the
girl, bec. w/o proof of impotency, she is presumed to be potent. To order her to submit to a physical
examination does not infringe on her constitutional right against self-incrimination (Sempio-Dy citing
Jimenez v. Canizares, Aug. 31, 1960.)

Triennial Cohabitation.-- This doctine provides that if the wife be a virgin and apt after 3
yrs. of cohabitation, the H will be presumed to be impotent, and the burden will be upon him to
overcome the presumption and does not prevent impotency to be proved by another proper evidence.

Balane: Some commentators say that this is disputable presumption is applicable in our jurisdiction.

Tolentino: Action Barred.-- The action on this ground is barred in the following cases: (1) If the
other party had knowledge of the incurable impotence bef. the M, bec. this would imply that he
renounces copulation, w/c is a personal right; (2) If both spouses are impotent, and such impotence
existed bef. the M, continues, and appears incurable, bec. in this case an impotent pltff could not have
expected copulation w/ the other spouse.

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party,
within five years after the marriage.

f. Psychological Incapacity.-- Articles 36, 39

Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of marriage,
shall likewise be void even if such incapacity becomes manifest only after its
solemnization. (As amended by E.O. No. 227)

Sempio-Dy: Provision is Taken from Canon Law.-- Par. 3 of Can 1095 of the New Code of Canon
Law provides that:

"Matrimonial Consent
The following are incapable of contracting marriage:
xxx
xxx
3. Those who, because of causes of a psychological nature, are unable to assume
the essential obligations of marriage.

The Committee decided to adopt par. 3 of the New Code of Canon Law as a ground for the
declaration of nullity of marriage for the following reasons: (1) As a substitute for divorce; (2) As a
solution to the problem of Church-annulled marriages; (3) As an additional remedy to parties who are
imprisoned by a marriage that exists in name only as they have long separated bec. of the inability of
one of them to perform the essential obligations of marriage.

Psychological Incapacity Distinguished from Vice of Consent.-- Psychological incapacity is not


a question of defective consent but a question of fulfillment of a valid consent.

Psychological Incapacity Distinguished from Insanity.-- Mental incapacity or insanity of some


kind, like physical incapacity, is a vice of consent, while psychological incapacity is not a species of
vice of consent.

Q: Why Were No Examples of Psychological Incapacity Given in this Article?


A: The Committee did not give any examples of psychological incapacity for fear that the giving of
examples would limit the applicability of the provisions under the principle of ejusdem generis.
Rather, the Committee would like the judge to interpret the provision on a case-to-case basis, guided
by experience, the findings of experts and researchers in psychological disciplines, and by decisions of
Church tribunals w/c, although not binding on the civil courts, may be given persuasive effect since the
provision was taken from Canon Law.

Q: Is the Psychologically Incapacitated Person Disqualified from Marrying Again?


A: The Committee believes that there is no need to disqualify the psychologically incapacitated from
contracting another marriage bec. the fact of his psychological incapacity for marriage would be
revealed anyway when he applies for a marriage licence for the 2nd marriage, and the other party is
thus placed on guard to conduct discreet investigation about the matter.

General Characteristics of term "Psychological Incapacity": It must exhibit gravity,


antecedence and incurability: (1) Gravity, if the subject cannot carry out the normal and ordinary
duties of marriage and family shouldered by any average couple existing under ordinary
circumstances of life and work; (2) antecedence, if the roots of the trouble can be traced to the history
of the subject before the marriage although its overt manifestation appear only after the wedding; and
(3) incurability, if treatments required exceed the ordinary means of the subject, or involve time and
expense beyond the reach of the subject.
Q: Who can File the Action to Declare the Marriage Void?
A: Either party, i.e., even the psychologically incapacitated can file the action.

Q: What is the Status of the Children under this Article?


A: The children conceived or born before the decree of nullity of marriage are considered legitimate
(Art. 54.)

SANTOS V. CA [240 SCRA 20 (1995)] - Meaning of "psychological incapacity" confined to the most
serious cases of personality disorders demonstrative of insensitivity or inability to give meaning and
significance to the marriage.

F: On 9/20/86, Leouel Santos and Julia Rosario Bedia exchanged vows bef. a mun. trial judge of
Iloilo City. They lived w/ the wife's parents. One yr. later, a child was born of their marriage. Quarrels
marred the marriage bec. of frequent interference by Julia's parents. On 5/18/88, Julia left for the US
to work as a nurse despite Leouel's pleas. For the first time in 7 mos. Julia called him up by long
distance promising to return home once her contract expires in 1/89. She never did. When Leouel was
in the US in 1990 to undergo a training program under the auspices of the AFP, he tried to locate Julia,
but to no avail. Hence this action in Negros Oriental, under Art. 36, FC. Summons was served by
publication. Julia opposed the complaint, claiming it was Leouel who had been irresponsible and
incompetent. But she filed a manifestation stating she would neither appear nor submit evidence.
From an order of the lower court dismissing the complaint for lack of merit, and the CA affirming said
order, Leouel filed this petition for certiorari.

HELD: It shld be obvious, looking at all the disquisitions, including, and most importantly, the
deliberations of the FC Revision Committee itself, that the use of the phrase "psychological incapacity"
in Art. 36 has not been meant to comprehend all such possible cases of pscyhoses as, likewise
mentioned by some ecclesiastical authorities, extremely law intelligence, immaturity, and like
circumstances. xxx Art. 36 cannot be taken and construed independently of, but must stand in
conjunction w/, existing precepts in our marriage law. Thus correlated, psychological incapacity
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 marriage w/, as so expressed by Art. 68, FC include their mutual obligations to live
together, observe love, respect and fidelity and render help and support. (Balane: This is a tentative
definition of psychological incapacity.) There is hardly any doubt that the intendment of the law has
been to confine the meaning of "psychological incapacity" to the most serious cases of personality
disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to
the marriage. This psychologic condition must exist at the time the marriage is celebrated. xxx.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. However, in the case of marriages celebrated before the effectivity of
this Code and falling under Article 36, such action or defense shall prescribe in 10 years
after this Code shall have taken effect. (As amended by E.O. No. 227)

Tolentino: Retroactivity of Art. 36.-- By providing for a 10-yr prescriptive period for marriages of
this nature solemnized bef. the effectivity of the FC, the latter has actually given a retroactive effect to
the present article.
We submit that this is a juridical mistake. It is like an ex post facto provision translated into
the filed of civil law. It contravenes the provisions of Art. 255 w/c allows retroactivity of the FC
provisions only when it does not impair or prejudice vested or acquired rights.

g. Disease.-- Articles 45 par. 6, 47 par. 5

Art. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
xxx
(6) That either party was afflicted with a sexually-transmissible diseases found to
be serious and appears to be incurable.
Balane: Sexually-Transmissible Disease.-- Its requisites are: (1) The disease must be sexually
transmisible; (2) The disease is found to be serious; (3) It must be apparently incurable; (4) The STD
must exist at the time of the M; (5) It was unknown to the other party when the M was solemnized;
and (6) the other party must himself/ herself be free from STD.
A marriage were either party was afflicted w/ STD may not be ratified by cohabitation.
Cohabitation here may be suicidal. Take note that there are two voidable marriages that cannot be
ratified by ratification: (1) voidable marriage bec. of impotence (here, there will be contradiction in
terms; how can you cohabit if you are impotent?); (2) voidable marriage bec. of STD.

Tolentino: The reason for this cause for A is the danger to the health of the other spouse and
offsprings, giving rise to possibility of avoidance of sexual relations, and the failure to attain one of the
purpose of M, that is, the procreation of children and raising of a family.

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party,
within five years after the marriage.

4. Consent (an essential requisite).-- Art. 2 par. 2

Art. 2. No marriage shall be valid, unless these essential requisites are present:
xxx
(1) Consent freely given in the presence of the solemnizing officer.

Tolentino: Mutual Consent.-- Such consent must be real, in the sense that it is not vitiated by
mistake, duress, or fraud. It must also be conscious or intelligent.

Effect of Mistake.-- Mistake as to the nature and legal consequences of the ceremony or as to the
identity or the person of one of the parties, renders the marriage void for lack of consent [see Art.
35(5).] But a marriage is not invalidated by mistake as to rank, fortune, character or health, of one of
the parties.

a. Insanity.-- Articles 45 par. 2, 47 par. 2

Art. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
xxx
(2) That either party was of unsound mind, unless such party after coming to
reason, freely cohabited with the other as husband and wife;
xxx

Party of Unsound Mind.-- The test of unsoundness of mind is w/n the party at the time of
the M was capable of understanding the nature and consequences of the M. xxx
Insanity must exist at the time of the M, to avoid it.
Somnambulism has the same effect as insanity. (Sanchez Roman.)

Burden of Proof.-- The presumption of the law is generally in favor of sanity, and he who
alleges the insanity of another has the burden of proving it. But once general insanity is proved to
exist, it is presumed to continue; and if a recovery or a lucid interval is alleged, the burden to prove
such allegation is on the person making it.

Ratification.-- This Art., in par. 2, gives the right of action to annul to the insane spouse and
provides for ratification after regaining reason. No right of action is given to the sane spouse; this is
based on the assumption that he knew of the insanity of the other party and is placed in estoppel. But
if he did not know of such insanity at the time of the M, he is given a right of action under Art. 47, par.
2, at any time before the death of the insane spouse.
Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had
no knowledge of the other's insanity or by any relative or guardian or person having legal
charge of the insane at any time before the death of either party, or by the insane spouse
during a lucid interval or after regaining sanity;
xxx

Tolentino: Where the sane spouse knew of the insanity of the other, he is estopped to seek annulment
where he has lived w/ the wife claimed to have been insane for several years and children have been
born to them.

b. Fraud.-- Articles 45 par. 3, 46, 47 par. 3

Art. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
xxx
(3) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with
the other as husband and wife;
xxx

Toleration: Marriage through Fraud.-- The FC limits the cases w/c would constitute fraud sufficient
for annulment of M to those enumerated in Art. 46. Bec. of the enumeration, w/c must be considered
as restrictive, no other case of fraud may be admitted.

Art. 46. Any of the following circumstances shall constitute fraud referred to in
Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a
crime involving moral turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing
at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or
lesbianism existing at the time of the marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or
chastity shall constitute such fraud as will give grounds for action for the annulment of
marriage.

Tolentino:
Conviction of Crime: Requisites: (1) The crime involves moral turpitude and (2) There has been a
conviction.

Balane: To find what crimes involve moral turpitude, you go by decisions of the SC. Crimes against
property are generally considered crimes of moral turpitude.

Tolentino: Concealment of Pregnancy.-- Where a man has had sexual intercourse w/ his wife
before the M, and she is pregnant at the time of M, although he may not be the author of the
pregnancy, the M will not be annulled. This is based on the theory that there is no fraud, bec. the man
knows his wife to be unchaste, as he was himself a party to her premarital immorality.

Concealment of Diseases.-- Compared w/ Art. 45 (6):


(1) Under 45 (6), a STD is an independent cause for annulment. Under 46, concealment of a
STD constitutes fraud under par. 3.
(2) Under 45 (6), the STD existing at the time of the M must be found to be serious and appear
to be incurable. Under Art. 46 (3), the STD need not be serious or incurable. To be aground for A, it
must have been "concealed" by the sick party. It is the fraud that is the ground for A.
This difference has a very impt. consequence. If the disease falls under Art 45 (6), the M is not
subject to ratification by continued cohabitation. If the disease falls under Art. 46 (3), the ground for A
is fraud, and the M is ratified under par. 3 of Art. 45, if the spouse who is well, after knowing of the
disease of the other, continues to cohabit w/ him or her as H & W.

Effect of Cure.-- The recovery or rehabilitation will not bar the action. The defect of the M is not the
disease, addiction or alcoholism itself but the fraud w/c vitiated the consent of the other party.

Balane: Homosexuality.-- Sexual orientation is not enough. One has to be a practicing homosexual.

BUCCAT V. BUCCAT [72 P 19] - Where the wife was already 7 months pregnant, the petition to
annul the marriage on the ground of fraud was denied.
Where there has been no misrepresentation or fraud, that is, when the husband at the time of the
marriage knew that the wife was pregnant, the marriage cannot be annulled. Here, the child was born
less than 3 months after the celebration of the marriage. We refuse to annul the marriage for the
reason that the woman was at an advance stage of pregnancy at the time of the marriage and such
condition must have been patent to the husband.

ANAYA V. PALAROAN [36 S 97] - F: Aurora Anaya prayed for the annulment of her marriage w/
Fernando Palaraon on the ground of fraud in obtaining her consent-- having learned that several mos.
prior to their marriage, Fernando had pre-marital relationship w/ a close relative of his. According to
her the "non-divulgement to her of such pre-marital secret" constituted fraud in obtaining her consent
w/in the contemplation of no. 4 of Art. 85, NCC.

HELD: The non-disclosure to a wife by her husband of his pre-marital relationship w/ another woman is
not a ground for annulment of marriage. For fraud as a vice of consent in marriage, w/c may be a
cause for its annulment, comes under Art. 85, No. 4 of the NCC xxx. This fraud, as vice of consent, is
limited exclusively by law to those kinds or species of fraud enumerated in Art. 86 xxx.
The intention of Congress to confine the circumstances that can constitute fraud as ground for
annulment of marriage to the 3 cases therein may be deduced from the fact that, of all the causes of
nullity enumerated in Art. 85, fraud is the only one given special treatment in a subsequent article w/in
the chapter on void and voidable marriages. It its intention were otherwise, Congress would have
stopped at Art. 85, for anyway, fraud in general is already mentioned therein as a cause for
annulment. xxx.

BAVIERA CASES:

JIMENEZ V. CANIZARES [109 P 273 (1960)] - Where the husband filed a complaint for annulment of
marriage on the ground of physical incapacity of his wife for copulation, her genitals being too small
for penetration, the sole testimony of the husband as to the incapacity of his wife is not sufficient basis
for annulment. The presumption is in favor of potency. Hence, the court ordered the wife to submit to
a physical examination. A physical examination in this case is not self- incriminating, since she is not
being charged of any crime.

PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)] - A marriage may be annulled even after one of the
spouses has been convicted of adultery in violation of that marriage.

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five
years after discovery of the fraud;
xxx

Balane: This kind of marriage can be ratified by cohabitation for a reasonable period w/ may set in
even before the 5-yr. prescriptive period has expired.

c. Force, Intimidation, Undue Influence.-- Articles 45 par. 4, 47 par. 4


Art. 45. A marriage may be annulled for any of the following causes, existing at the
time of the marriage:
xxx
(4) That the consent of either party was obtained by force, intimidation or undue
influence, unless the same having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
xxx

Force, Intimidation and Undue Influence.-- The definitions of "violence," "intimidation," and
"undue influence" are found in Arts. 1335 to 1337 of the NCC
Art. 1335. There is violence when in order to wrest consent, serious or irresistible
force is employed.
There is intimidation when one of the contracting parties is compelled by a
reasonable and well-grounded fear of an imminent and grave evil upon his person or
property, or upon the person or property of his spouse, descendants or ascendants, to give
his consent.
To determine the degree of intimidation, the age, sex and condition of the person
shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or
legal, does not vitiate consent.

Art. 1336. Violence or intimidation shall annul the obligation, although it may have
been employed by a third person who did not take part in the contract.

Art. 1337. There is undue influence when a person takes improper advantage of his
power over the will of another, depriving the latter of a reasonable freedom of choice. The
following circumstances shall be considered: the confidential, family, spiritual and other
relations between the parties, or the fact that the person alleged to have been unduly
influenced was suffering from mental weakness, or was ignorant or in financial distress.

Art. 47. The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
xxx
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five
years from the time the force, intimidation or undue influence disappeared or ceased;
xxx

d. Mistake as to Identity.-- Articles 35 par. 5, 39

Art. 35. The following marriages shall be void from the beginning:
xxx
(5) Those contracted through mistake of one contracting party as to the identity of
the other; xxx
xxx

Tolentino: Mistake as to Identity.-- This refers to mistake as to the person himself, involving a
substitution of another person for the party who is desired in marriage, w/o the knowledge of the other
contracting party.

Art. 39. The action or defense for the declaration of absolute nullity of a marriage
shall not prescribe. xxx

5. Authority of Solemnizing Officer.-- Articles 3 par. 1, 4 par. 1, 7, 10, 31, 32, 35 par. 2

Art. 3. The formal requisites of marriage are:


(1) Authority of the solemnizing officer;
xxx
Tolentino: Authority of the solemnizing officer.-- Q: Would a marriage void for want of authority
of the solemnizing officer entered into under the NCC, now be considered validated under the FC, if
either or both parties believed in good faith that such officer had the legal authority to solemnize the
marriage?
A: Yes. Art. 255, FC provides: "This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance w/ the NCC or other laws." The present FC
may be given a curative or remedial effect and validate the marriage in question.

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).
xxx

Art. 7. Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly
authorized by his church or religious sect and registered with the civil registrar general,
acting within the limits of the written authority granted him by his church or religious sect
and provided that at least one of the contracting parties belongs to the solemnizing
officer's church or religious sect;
(3) Any ship captain or airplane chief only in the cases mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence
of the latter, during a military operation, likewise only in the cases mentioned in Article 32;
or
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.

NOTE: Under the Local Government Code [Secs. 444 (b) (1) (xviii) & 455 (b) (1) (xviii)], mayors have
again been given the authority to solemnize marriages.

Sempio-Dy: Members of the Judiciary.-- The jurisdiction of the members of the SC, the CA, the
Sandiganbayan, and the Court of Tax Appeals to solemnize mariages is the entire country, w/c is their
territorial jurisdiction.
The jurisdiction of the RTC judges and judges of MTCs to solemnize marriages is their territorial
jurisdiction as defined by the SC.

Tolentino: Requisites for Authority of Priest or Minister: (1) He must be registered in the office
of the Civ. Registrar General; (2) he must have a written authority to solemnize marriages given by his
church or religious sect; (3) he must act w/in the limits of such authority; and (4) at least one of the
contracting parties must belong to the solemnizing officer's church or religious sect.

PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)] - A marriage performed by a minister whose
authority to solemnize a marriage has expired is void ab initio.

Ship Captains, Airplane Chiefs, Military Commanders.-- These officers can solemnize only one
kind of marriage-- a marriage in articulo mortis or at the point of death.

Art. 31. A marriage in articulo mortis between passengers or crew members may
also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea
or the plane is in flight, but also during stopovers at ports of call.

Art. 7 refers to an "airplane chief" but art. 31 refers to an "airplane pilot" who may not be the
captain or chief. We believe the controlling designation is "airplane chief." It is the head of the crew
and who has the command of the airplane who must be deemed to have been given by law the
authority to solemnize marriages.

Art. 32. A military commander of a unit, who is a commissioned officer, shall


likewise have authority to solemnize marriages in articulo mortis between persons within
the zone of military operations, whether members of the armed forces or civilians.
Consul-generals, Consuls, Vice-consuls.-- An ambassador, even if he is the head of a diplomatic
mission, has no authority to solemnize marriage. The reason for this is that, while an amabassador
takes care of the relations bet. the Phils. and the country to w/c he is assigned, the consuls take care
of matters affecting Filipino citizens in the area of their responsibility.

Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-
general, consul or vice-consul of the Republic of the Philippines.
The issuance of the marriage license and the duties of the local civil registrar and of
the solemnizing officer with regard to the celebration of marriage shall be performed by
said consular official.

Art. 35. The following marriages shall be void from the beginning:
xxx
(2) Those solemnized by any person not legally authorized to perform marriages
unless church marriages were contracted with either or both parties believing in good faith
that the solemnizing officer had the legal authority to do so;
xxx

6. Marriage License (a formal requisite.)-- Articles 3 par. 2, 4 pars 1 & 3, 35 par. 3, 9 to 21


with exceptions in 27 to 34

Art. 3. The formal requisites of marriage are:


xxx
(2) A valid marriage licence except in the cases provided for in Chapter 2 of this
Title; xxx
xxx

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).
xxx
An irregularity in the formal requisites shall not affect the validity of the marriage
but the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.

COSCA V. PALAYPAYON, JR. [237 S 249 (1994)]

F: Complainants allege that respondent judge solemnized marriages even w/o the requisite marriage
license. Thus, several couples were able to get married by the simple expedient of paying the
marriage fees to resp. Baroy, Clerk of Court II of the Mun. Trial Court of Tinambac, Camarines Sur,
despite the absence of a marriage license. xxx. As a consequence, their marriage contracts did not
reflect any marriage license. In addition, resp. Judge did not sign their marriage contracts and did not
indicate the date of solemnization the reason being that he allegedly had to wait for the marriage
license to be submitted by the parties w/c was usually several days after the ceremony. Indubitably,
the marriage contracts were not filed w/ the local civil registrar.

HELD: On the charge regarding illegal marriages, the FC pertinently provides that the formal
requisites of marriage, inter alia, a valid marriage license except in the cases provided for therein.
Complementarily, it declares that the absence of any of the essential or formal requisites shall
generally render the marriage void ab initio and that, while an irregularity in the formal requisites shall
not affect the validity of the marriage, the party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable.

Art. 35. The following marriages shall be void from the beginning:
xxx
(3) Those solemnized without license, except those falling under Article 41;
xxx
REPUBLIC V. CA [236 SCRA 257 (1994)] - The certification by the Civil Registrar that the alleged
marriage license could not be found in his records is adequate to prove that no license was issued.

F: Angelina Castro and Edwin Cardenas were married in a civil ceremony in the city court of
Pasay w/o the knowledge of Angelina's parents. The marriage lasted only for a couple of mos.
Angelina decided to migrate to the US but wanted to put in order her marital status bef. leaving. She
consulted a lawyer regarding the possible annulment of her marriage. It was discovered that there
was no license issued to Cardenas by the Civil Registrar of Pasig. The Civil Registrar certified that the
alleged license no. does not appear from the records. The trial court denied the petition. The CA
reversed the trial court, hence, this petition for review on certiorari.

HELD: The presentation by the Civil Registrar is sanctioned by Sec. 29, R 132, ROC. The certification
of due search and inability to find, issued by the civil registrar of Pasig, enjoys probative value, he
being the officer charged under the law to keep a record of all data relative to the issuance of a
marriage license. Unaccompanied by any circumstance of suspicion, and pursuant to Sec. 29, R 132 of
ROC, a cert. of due search and inability to find sufficiently proved that his office did not issue the
marriage license. There being no marriage license, the marriage of Angelina and Edwin is void ab
initio.

(1) Where to apply -- Arts 9-10


.
Art. 9. A marriage license shall be issued by the local civil registrar of the city or
municipality where either contracting party habitually resides, except in marriages where
no license is required in accordance with Chapter 2 of this Title.

Sempio-Dy: The solemnizing officer is not required to investigate w/n the license was issued in the
place required by law. (Peo. v. Jansen 54 P 176.)

Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-
general, consul or vice-consul of the Republic of the Philippines. The issuance of the
marriage license and the duties of the local civil registrar and of the solemnizing officer
with regard to the celebration of marriage shall be performed by said consular official.

Sempio-Dy: By "Filipinos citizens abroad" may mean Filipinos permanently residing abroad or who are
mere transients or vacationists there.
Consuls on home assignment in the Phils. cannot solemnize marriages.

Salonga, Private International Law II, 1995 ed. (hereinafter Salonga): Consular Marriages.-- xxx The
prevailing rule is that a marriage performed before a consular or diplomatic agent empowered by a
sending State to officiate marriages is valid in the receiving State only if the latter has agreed to his
acting in that capacity.

(2) Requirements for issuance


(a) application -- Art. 11

Art. 11. Where a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar
which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil Status;
(5) If previously married, how, when and where the previous marriage was dissolved
or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge,
in case the contracting party has neither father nor mother and is under the age of 21
years.
The applicants, their parents or guardians shall not be required to exhibit their
residence certificates in any formality in connection with the securing of the marriage
license.

(b) Proof of capacity -- Articles 12-14; Art. 21

Art. 12. The local civil registrar, upon receiving such application, shall require the
presentation of the original birth certificates or, in default thereof, the baptismal
certificates of the contracting parties or copies of such documents duly attested by the
persons having custody of the originals. These certificates or certified copies of the
documents required by this Article need not be sworn to and shall be exempt from the
documentary stamp tax. The signature and official title of the person issuing the certificate
shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal
certificate or a certified copy of either because of the destruction or loss of the original, or
if it is shown by an affidavit of such party or of any other person that such birth or
baptismal certificate has not been received though the same has been required of the
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 local civil registrar concerned or any public official authorized
to administer oaths. Such instrument shall contain the sworn declaration of two witnesses
of lawful age, setting forth the full name, residence and citizenship of such contracting
party and of his or her parents, if known, and the place and date of birth of such party. The
nearest of kin of the contracting parties shall be preferred as witnesses, or in their default,
persons of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if the par-
ents of the contracting parties appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties, as stated in the application,
or when the local civil registrar shall, by merely looking at the applicants upon their
personally appearing before him, be convinced that either or both of them have the
required age.

Tolentino: Documents Required.-- To prove the ages of the contracting parties, the ff. may be
required by the local civ. registrar:
(1) Original or certified copies of birth certificates.
(2) In the absence of birth certs., the original or certified copies of baptismal certs.
(3) In the absence of the above documents, the party may present his residence cert. or the
affidavit of 2 witnesses.

When Proof of Age Dispensed With:


(1) When the parents of the contracting parties appear personally bef. the local civ. reg. and
swear to the correctness of their ages;
(2) When the local civ. reg. is convinced, by merely looking at the parties that they have the
required ages;
(3) When a party has formerly married, but is widows, or divorced, or the previous marriage
has been invalidated. (see art. 13.)

Art. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate required
in the last preceding article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity
of his or her previous marriage. In case the death certificate cannot be secured, the party
shall make an affidavit setting forth this circumstance and his or her actual civil status and
the name and date of death of the deceased persons.

Art. 14. In case either or both of the contracting parties, not having been emanci-
pated by a previous marriage, are between the ages of eighteen and twenty-one, they
shall, in addition to the requirements of the preceding articles, exhibit to the local civil
registrar, the consent to their marriage of their father, mother, surviving parent or
guardian, or persons having legal charge of them, in the order mentioned. Such consent
shall be in writing by the interested party, who personally appears before the proper local
civil registrar, or in the form of an affidavit made in the presence of two witnesses and
attested before any official authorized by law to administer oaths. The personal
manifestation shall be recorded in both applications for marriage license, and the affidavit,
if one is executed instead, shall be attached to said application.

Tolentino: Reason for parental consent.-- The parental consent of parties below 21 years is
required in order to supplement the natural incapacity of such parties, whose inexperience may lead
them to a union w/c is difficult or prejudicial for them.

Effect of Previous Marriage.-- A person below 21 who has been previously married, but
whose marriage has terminated by the death of the spouse does not need parental consent to remarry
even if he or she is still below 21.

Effect of RA 6809.-- The reduction of the age of majority and emancipation does not affect
the requirement of the present article, w/ respect to persons who have living parents.
Q: But when the person over 18 yrs. but below 21 yrs. is an orphan, not otherwise
incapacitated, he cannot be placed under guardianship and would have nobody "having legal charge"
of him. Whose consent will be required?
A: In view of the impossibility of compliance, it seems that "parental consent" need not be
secured.

Remarriage of Widowed Mother.-- A widowed mother who has remarried retains her
parental authority over her children (art. 212, FC), and thus, her consent is still required for the
marriage of a child below 21 yrs. old.

Specific Consent Required.-- The better view xxx is that the consent must refer to
marriage w/ a particular person. The law intends that the child should benefit from the experience of
the parent, and that the latter save the former from what may be an unwise union.

Form of Consent.-- It must be in writing. It may be made in either of 2 ways: (1) by the
parent personally appearing bef. the local civ. reg. and signing the instrument of consent, or (2) by
executing an affidavit of consent in the presence of 2 witnesses w/o having to appear bef. the local civ.
reg.

Revocation of Consent.-- Once consent has been given and the proper license issued, it
should be irrevocable except for cause. To allow its revocation, w/o any reason is to subject the
effectivity of the license issued by the govt to the whim and caprice of the parent. xxx We believe,
however, that revocation for just cause must be made known to the parties and to the local civ. reg. to
have any effect.

Effect of Want of Consent.-- Aside from the civil sanction of nullity of the marriage, there is
also a penal sanction. If the parties knowingly entered into the marriage w/o parental consent, or the
solemnizing officer has celebrated it knowing of such absence when it was needed, they will become
subject to the penal consequences imposed by Act No. 3613 and the RPC.

EIGENMAN V. GUERRA [5 C.A. Rep. 836 (1964)] - Parental consent may be made expressly or
impliedly, such as by the presence of the mother during the marriage ceremony, without any
objections.

Art. 21. When either or both of the contracting parties are citizens of a foreign
country, it shall be necessary for them before a marriage license can be obtained, to
submit a certificate of legal capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of
legal capacity herein required, submit an affidavit stating the circumstances showing such
capacity to contract marriage.
Tolentino: The legal capacity of a foreigner to marry is recognized by our laws as governed by the law
of the country of w/c he is a citizen. This is in accordance w/ the nationality theory of personal laws
w/c is followed by the Phils.

Stateless Persons and Refugees.-- Q: What is the legal capacity of a stateless person?
A: Having no personal law of his own, since he owes no allegiance to any particular country,
his legal capacity should be determined by the laws of the Phils. under w/c he temporarily enjoys
protection. The provisions of the FC apply to him.

Salonga: The net effect of Art. 21 is to leave it to the Govt of the alien to decide almost conclusively
the question of w/n he or she can marry in the Phils. It is the interpretation of that Govt through its
diplomatic or consular officials, that is controlling, except where the M is bigamous or universally
incestuous. Any abuse of that discretion is a matter w/c the alien must take up w/ his own Govt.

Q: Suppose, however, that, w/o such a cert., the marriage is solemnized-- is the marriage
valid?
A: Yes. The M should be considered as valid, assuming that the lack of cert. is the only defect.
It is not one of the void marriages enumerated in the NCC (now the FC); the cert. of legal capacity is
not an essential requisite of marriage.

(c) Parental advice -- Art. 15

Art. 15. Any contracting party between the age of twenty-one and twenty-five shall
be obliged to ask their parents or guardian for advice upon the intended marriage. If they
do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued
till after three months following the completing of the publication of the application
therefor. A sworn statement by the contracting parties to the effect that such advice has
been sought, together with the written advice given, if any, shall be attached to the
application for marriage license. Should the parents or guardian refuse to give any advice,
this fact shall be stated in the sworn statement.

Tolentino: Effect of Emancipation.-- The need for parental advice depends on filial relationship and
not on parental authority.
Q: When the child is an orphan over 21 but below 25 yrs. old, he would be emancipated and
cannot be under the authority of a guardian. Who will give the parental advice in such a case?
A: The solution may be anomalous, but it seems that such advice is dispensed w/, due to
impossibility of compliance.

(d) Marriage Counselling -- Art. 16

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

Tolentino: Marriage Conselling.-- Both of the intended spouses are required to undergo marriage
counselling if one or both of them are bet. 18 and 25 yrs. of age.
Reason for the Requirement.-- It is intended to prepare the youth for entering into the
married state, w/ instructions on the responsibilities of the future couple to each other, to their
children, and to society.

(e) Publication -- Art. 17


Art. 17. The local civil registrar shall prepare a notice which shall contain the full
names and residences of the applicants for marriage license and other data given in the
applications. The notice shall be posted for ten consecutive days on a bulletin board
outside the office of the local civil registrar located in a conspicuous place within the
building and accessible to the general public. This notice shall request all persons having
knowledge of any impediment to the marriage to advise the local civil registrar thereof.
The marriage license shall be issued after the completion of the period of publication.

(f) Investigation of Impediments -- Art. 18.

Art. 18. In case of any impediment known to the local civil registrar or brought to
his attention, he shall note down the particulars thereof and his findings thereon in the
application for marriage license, but shall nonetheless issue said license after the
completion of the period of publication, unless ordered otherwise by a competent court at
his own instance or that of any interested party. No filing fee shall be charged for the
petition nor a corresponding bond required for the issuance of the order.

(g) Payment of fees -- Art. 19.

Art. 19. The local civil registrar shall require the payment of the fees prescribed by
law or regulations before the issuance of the marriage license. No other sum shall be
collected in the nature of a fee or tax of any kind for the issuance of said license. It shall,
however, be issued free of charge to indigent parties, that is, those who have no visible
means of income or whose income is insufficient for their subsistence, a fact established
by their affidavit, or by their oath before the local civil registrar.

(h) Family Planning certificate -- PD 965

(3) Place where valid -- Art. 20

Art. 20. The license shall be valid in any part of the Philippines for a period of one
hundred twenty days from the date of issue, and shall be deemed automatically cancelled
at the expiration of said period if the contracting parties have not made use of it. The
expiry date shall be stamped in bold characters on the face of every license issued.

Tolentino: The automatic cancellation of the license is not a mere irregularity or defect; the license is
non-existent. The marriage is void ab initio.

(4) Period of validity -- Art. 20, supra.

(not in Balane's outline)


(5) Duties of the Civil Registrar -- Articles 24-25

Art. 24. It shall be the duty of the local civil registrar to prepare the documents
required by this Title, and to administer oaths to all interested parties without any charge
in both cases. The documents and affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary stamp tax.

Art. 25. The local civil registrar concerned shall enter all applications for marriage
licenses filed with him in a registry book strictly in the order in which the same are
received. He shall record in said book the names of the applicants, the date on which the
marriage license was issued, and such other data as may be necessary.

BAVIERA CASE:

PEOPLE V. DAVID [13 CA Rep. 495 (1968)] - Official Receipt of the Local Civil Registrar due to lack of
the regular form may be considered as a valid license.

(6) When no license needed -- Articles 27-34


Chapter 2

MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT

Tolentino: Marriages of Exceptional Character.-- It is one on w/c the law considers of such a
nature as to dispense w/ the formal requirement of a marriage license. The marriages exempted from
the requirement of a marriage license are: (1) marriages in articulo mortis or on the point of death,
(2) marriages in isolated places, or where there are no available means of transportation, (3)
marriages among Muslims or among members of ehtnic cultural communities, and (4) marriages of
those who have lived together as husband and wife for at least 5 yrs.

Art. 27. In case either or both of the contracting parties are at the point of death,
the marriage may be solemnized without the necessity of a marriage license and shall
remain valid even if the ailing party subsequently survives.

Art. 28. If the residence of either party is so located that there is no means of
transportation to enable such party to appear personally before the local civil registrar,
the marriage may be solemnized without the necessity of a marriage license.

Art. 29. In the cases provided for in the two preceding articles, the solemnizing
officer shall state in an affidavit executed before the local civil registrar or any other
person legally authorized to administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio or barangay, is so located
that there is no means of transportation to enable such party to appear personally before
the local civil registrar and that the officer took the necessary steps to ascertain the ages
and relationship of the contracting parties and the absence of a legal impediment to the
marriage.

Art. 30. The original of the affidavit required in the last preceding article, together
with a legible copy of the marriage contract, shall be sent by the person solemnizing the
marriage to the local civil registrar of the municipality where it was performed within the
period of 30 days after the performance of the marriage.

Art. 31. A marriage in articulo mortis between passengers or crew members may
also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea
or the place is in flight, but also during stopovers at ports of call.

Art. 32. A military commander of a unit, who is a commissioned officer, shall


likewise have authority to solemnize marriages in articulo mortis between persons within
the zone of military operations, whether members of the armed forces or civilians.

Art. 33. Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of marriage license, provided
that they are solemnized in accordance with their customs, rites or practices.

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

Tolentino: This art. intends to facilitate and encourage the marriage of persons who have been living
together in a state of concubinage for more than 5 yrs. The publicity and other attendant
inconveniences in securing the marriage license, might be embarrassing to such persons and deter
them from legalizing their union.

Sempio-Dy: Besides, the marriage of the parties will result in the legitimation of natural children born
to them during their cohabitation.
Note: The fact of absence of legal impediment bet. the parties must be present at the time of
the marriage, not during their 5-yr. cohabitation.
II. EFFECT OF LACK OF REQUISITES

A. 1. Difference in sex.-- lack of it: void


2. Some form of ceremony.-- lack of it: void
3. Legal capacity.-- Lack of it.-- General rule: void
Exception: Age.-- Art. 45 par. 1
Impotence.-- Art. 45 (5), voidable
Disease.-- Art. 45 (6), voidable

4. Lack of consent.-- voidable


Except: Mistake as to identity.-- void [Art. 35 (5)]
5. Authority of solemnizing officer.-- lack of it: void
Except: Art. 45 (1)
6. Marriage License.-- lack of it: void
Exceptions: Articles 27-34, supra.

B. VOID AND VOIDABLE MARRIAGES

Chapter 3

VOID AND VOIDABLE MARRIAGES

Balane: A defective marriage in this country is either void or voidable. A voidable marriage produces
the effect of a valid marriage, until annuled.

Void Marriages

Tolentino: The following marriages are void in spite of their omission from the enumeration contained
in articles 35 to 38: (1) Marriages where intent to marry is totally wanting (e.g., marriage in jest.); (2)
Marriages not solemnized in accordance w/ law (e.g., marriages by proxy); (3) Marriages bet. persons
of the same sex.

Void and Voidable Marriages Distinguished.-- Fundamental distinction-- A void marriage is


deemed never to have taken place at all, while a voidable or annullable marriage is considered valid
and subsisting until it is set aside by a competent court. The following distinctions arise from this
general difference: (1) A void M can be attacked collaterally, while a voidable M can be attacked only
in a direct proc. for annulment; (2) A void M may be questioned even after the death of one of the
parties, while a voidable M can no longer be attacked after one of the parties is dead; (3) A void M
cannot be ratified or confirmed, while a voidable M is generally made perfectly valid by ratification or
confirmation, through continued cohabitation; (4) the validity of a void M may be assailed by any one
if the question becomes material, while an annullable M can generally be attacked only by a party to it;
and (5) the action or defense to declare the nullity of a void M generally does not prescribe, while the
action to set aside a voidable M prescribes.

Effect of Void Marriages:


On property Relations.-- A community prop. or conjugal partnership is formed, and is
dissolved and liquidated upon the declaration of nullity, but if either spouse contracted the marriage in
BF, his or her share is forfeited in favor of the children or the innocent spouse, as the case may be.
[see Art. 43(2)]
Status of Children.-- Such children are considered legitimate. (Art. 54.)

Effects of Voidable Marriages.-- A voidable marriage is valid and produces all its civil effects, until
it is set aside by judgment of a competent court in an action for annulment.
xxx
Under the FC, the rule applicable to marriages void from the beginning applies to voidable
marriages. (see Art. 50, FC. )
As to children born in voidable marriages, the NCC and the FC have the same rule; the children
are legitimate.

Action to Annul Marriage.-- Annulment of M is an action in rem, for it concerns the status of the
parties, and status affects or binds the whole world. The res is the relation bet. the parties, or their
marriage tie.

Annulment and Legal Separation Distinguished: (1) Annulment (A) is caused by some
circumstance existing at the time of the M, while the cause of legal separation (LS) arises after the
celebration of the M; (2) an A of M terminates the marital bond bet. the parties while LS does not; and
(3) A of M, once final, cannot be set aside so as to restore the marital relation, while LS may be
terminated and marital relations resumed by the reconciliation of the parties.

Ratification of Voidable Marriage.-- The law does not fix a definite period during w/c this
cohabitation shld last in order to constitute ratification. xxx It is submitted that when the cohabitation
has continued for such a length of time, after the cause of nullity has ceased to exist, as to give rise to
a reasonable inference that the party entitled to bring the action for nullity prefers to continue w/ the
M, there is ratification w/c purges the M of its original defect.
Ratification refers to the right of action itself; prescription refers only to the remedy. There
can be no remedy where there is no more right of action.

Marriages Not Subject to Ratification (the law does not provide for their ratification):
(1) Where one of the spouses is incurably impotent;
(2) Where one of the spouses has an incurable sexually transmissible disease;
The defect of the M in these 2 cases is not one that merely affects consent. Ratification cures
a defect in consent; it cannot cure a physical defect.
The action to annul in these cases will exist as long as the period of prescription has not
expired.
(3) A marriage where a sane spouse marries an insane spouse w/o the knowledge of the
insanity. Although the insane spouse can ratify the M after recovering reason, the sane spouse cannot
be barred from asking for A even if he has continued to cohabit w/ the insane spouse after learning of
such insanity.

III. EFFECT OF DEFECTIVE MARRIAGES ON STATUS OF CHILDREN.-- Articles 54, 165

Art. 54. Children conceived or born before the judgment of annulment or absolute
nullity of the marriage under Article 36 has become final and executory shall be considered
legitimate. Children conceived or born of the subsequent marriage under Article 53 shall
likewise be legitimate.

Art. 165. Children conceived and born outside a valid marriage are illegitimate,
unless otherwise provided in this Code. (referring to Art. 54.)

Balane: General rule: Children of voidable marriage are legitimate.


Children conceived and born of a void marriage are illegitimate. There are two
exceptions (Art. 54):
1. Art. 36
2. Art. 53

IV. PRIMARY PROOF OR EVIDENCE OF MARRIAGE.-- Articles 22, 23

Art. 22. The marriage certificate, in which the parties shall declare that they take
each other as husband and wife, shall also state:
(1) The full name, sex, and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in
marriages provided for in Chapter 2 of this Title;
(5) That either or both of the contracting parties have secured the parental consent
in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal
requirement regarding parental advice in appropriate cases; and
(7) That the parties have entered into marriage settlements, if any, attaching a
copy thereof.

Sempio-Dy: The marriage cert. is not an essential or formal requisite of marriage w/o w/c the marriage
will be void. (Madridejo v. De Leon, 55 P 1.). An oral marriage is, thus, valid, and failure of a party to
sign the marriage cert. (De Loria v. Felix, 104 P) or the omission of the solemnizing officer to send a
copy of the marriage cert. to the proper local civil registrar (Pugeda v. Trias, 4 S 49) does not
invalidate the marriage.

Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either
of the contracting parties the original of the marriage certificate referred to in Art. 6 and
to send the duplicate and triplicate copies of the certificate not later than 15 days after the
marriage, to the local civil registrar of the place where the marriage was solemnized.
Proper receipts shall be issued by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The solemnizing officer shall retain in his
file the quadruplicate copy of the marriage certificate, the original of the marriage license
and, in proper cases, the affidavit of the contracting party regarding the solemnization of
the marriage in a place other than those mentioned in Art. 8.

Tolentino: Proof of Marriage.-- The best proof of the marriage is the marriage certificate. But this
is not the only proof. The declaration of one of the parties to the marriage, as well as of persons who
were present at its celebration, are competent proof of the marriage. Public and open cohabitation as
H & W after the alleged marriage, birth and baptismal certificates of children borne by the alleged
spouses, and a statement of such marriage in subsequent documents are likewise competent evidence
to prove the fact of marriage.

Presumption of Marriage.-- There is a prima facie presumption that a man and a woman living
maritally under the same roof are legally married. The reason is that such is the common order of
society, and if the parties were not what they hold themselves out as being, they would be living in the
constant violation of decency and law. (Perido v. Perido, 63 S 97, 98.)

Sempio-Dy: Remember that even if no one receives a copy of the marriage cert., the marriage is still
valid. (Jones v. Hortiguela, 64 P 179.)

LORIA V. FELIX [104 P 1 (1958)] - The signing of the marriage contract is a formal requirement of
evidentiary value, the omission of which does not render the marriage a nullity. "The signing of the
marriage contract or certificate was required by statute simply for the purpose of evidencing the act
and to prevent fraud. No statutory provision or court ruling has been cited making it an essential
requisite - not the formal requirement of evidentiary value, which we believe it is. The fact of marriage
is one thing; the proof by which it may be established is quite another."

V. ACTION OF ANNULMENT OR DECLARATION OF NULLITY.-- Articles 48 to 52

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of
the State to take steps to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment.

Tolentino: Effect of Collusion.-- [I]f the parties succeed in obtaining a decree of annulment by
collusion notwithstanding observance of the provisions of this Art., such decree must be held to be
absolutely void if no cause really existed. It would be against public policy.
Art. 49. During the pendency of the action and in the absence of adequate
provisions in a written agreement between the spouses, the Court shall provide for the
support of the spouses and the custody and support of their common children. The Court
shall give paramount consideration to the moral and material welfare of said children and
their choice of the parent with whom they wish to remain as provided for in Title IX. It shall
also provide for appropriate visitation rights of the other parent.

BAVIERA CASES:

TOLENTINO V. VILLANUEVA [56 S 1 (1974)] - Where the husband filed a case for annulment on the
ground of concealment of pregnancy, and the wife failed to file a responsive pleading, the court
referred the case to the fiscal for investigation. However, the husband refused to show his evidence
nor be interrogated by the fiscal, hence, the court correctly dismissed the complaint for annulment.
The investigation of the fiscal is a prerequisite to the annulment of marriage where defendant has
defaulted.

JOCSON V. ROBLES [22 S 521 (1968)] - Where the second wife filed an action for annulment, and the
husband also assailed the validity of the marriage claiming he was coerced to marry her by her
parents and brothers, and filed a motion for summary judgment supported by affidavits of the
plaintiff's father and brothers to this effect, and the plaintiff also submitted the case for judgment on
the pleadings, the court correctly denied the motion for summary judgment in view of provisions of the
Civil Code expressly prohibiting the rendition of a decree of annulment of marriage upon a stipulation
of facts or a confession of judgment. The affidavits of the wife's father and brothers practically
amounts to these methods not countenanced by the Civil Code.

VILLAROMAN V. ESTEBAN [73 O.G. 11736 (1976)] - (1) The principle of estoppel cannot apply to
defeat a suit for annulment of marriage on the ground that plaintiff was not of age when he contracted
marriage, since the ages of the contracting parties which require parental consent, cannot be modified
or altered by their joint act or omission or by that of either of them. (2) Staying with the wife in her
residence only on Saturdays and Sundays merely indicates transient sexual intercourse which is not
considered as cohabitation. This circumstance and the conduct of the man in abandoning his wife
before reaching the age of majority or according to the wife's version, 9 months after attaining legal
age, negates the intention on the part of the man to confirm or ratify a defective marriage by
cohabiting and living with the woman as her husband.

(not in Balane's outline)


Effect of Annulment

Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and
by Article 44 shall also apply in the proper cases to marriages which are declared void ab
initio or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common
children, and the delivery of their presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal
partnership shall be 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 Articles 102 and 129.

Art. 43. The termination of the subsequent marriage referred to in the


preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership,
as the case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of
the community property or conjugal partnership property shall be forfeited
in favor of the common children or, if there are none, the children of the
guilty spouse by a previous marriage or, in default of children, the innocent
spouse.
(3) Donations by reason of marriage shall remain valid, except that if
the donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance policy, even if
such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith
shall be disqualified to inherit from the innocent spouse by testate and
intestate succession.

Art. 44. If both spouses of the subsequent marriage acted in bad


faith, said marriage shall be void ab initio and all donations by reason of
marriage and testamentary dispositions made by one in favor of the other
are revoked by operation of law.

Art. 40. The 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.

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage
annulled was 18 years of age but below 21, and the marriage was solemnized
without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after attaining the
age of 21, such party freely cohabited with the other and both lived together
as husband and wife;
(2) That either party was of unsound mind, unless such party after
coming to reason, freely cohabited with the other and both lived together as
husband and wife;
(3) That the consent of either party was obtained by fraud, unless
such party afterwards, with full knowledge of the facts constituting the fraud
freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having disappeared or
ceased, such party thereafter freely cohabited with the other as husband
and wife;
(5) That either party was physically incapable of consummating the
marriage with the other, and such incapacity continues and appears to be
incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable.

Art. 102. Upon dissolution of the absolute community regime, the


following procedures shall apply:
xxx
(6) 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 seven years 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.

Art. 129. Upon the dissolution of the conjugal partnership regime, the
following procedure shall apply:
xxx
(9) In the partition of the properties, the conjugal dwelling and the lot
on which it is situated shall, unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years 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.

Art. 51. In said partition, the value of the presumptive legitimes of all common
children, computed as of the date of the final judgment of the trial court, shall be delivered
in cash, property or sound securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death of either
or both of the parents; but the value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on their legitime.
NOTE: The word 'delivered' in par. 1 is wrong according to DLC as it is violative of Art. 777; it is
contrary to principles of succession.

Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their persons.

Art. 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent marriage
shall be null and void.

Art. 54. Children conceived or born before the judgment of annulment or absolute
nullity of the marriage under Article 36 has become final and executory, shall be
considered legitimate. Children conceived or born of the subsequent marriage under Art.
53 shall likewise be legitimate.

Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the essential
marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.

Art. 53. Either of the former spouses may marry again after
complying with the requirements of the immediately preceding Article;
otherwise, the subsequent marriage shall be null and void.

Art. 52. The judgment of annulment or of absolute nullity of the


marriage, the partition and distribution of the properties of the spouses, and
the delivery of the children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same
shall not affect third persons.

Tolentino: Effects of the Setting Aside of all Defective Marriages (whether they are void ab
initio, or voidable, or a subsequent marriage terminated upon reappearance of a spouse presumed to
be dead):
(1) There will be a liquidation, partition, and distribution of the properties of the spouses.
Liquidation involves the inventory of the properties and payment of the obligations of the
spouses and of the marriage.
Partition is the process in w/c the remaining properties will be divided into the various portions
to be allocated to all the parties.
Distribution is the delivery to the spouses and the children, in the proper cases, of the shares or
properties allocated to them respectively in the partition.
(2) In determining the share of each spouse in the properties of the M, the properties, or their
value, that had been donated in consideration of M by the innocent spouse to the spouse in BF, shall
be revoked by operation of law and returned to the innocent spouse to become part of his distributable
prop.
(3) The children conceived or born bef. the judgment becomes final are considered legitimate.
The judgment shall provide for their custody and support. Their presumptive legitime from each
parent (as if the parent died and they inherit from him or her on the date of final judgment) shall be
delivered to them in cash, prop. or securities.
(4) The innocent spouse may revoke the designation of the spouse in BF as beneficiary in the
former's life insurance policy.
(5) The spouse in BF shall be disqualified to inherit from the innocent spouse even under a will
or testament.
(6) The conjugal dwelling and the lot on w/c it is built will be given to the spouse w/ whom the
common children choose to remain, unless the parties agree otherwise.
(7) If both spouses acted in BF, all donations by reason of M from one to the other, and all
testamentary provisions made by one in favor of the other, are revoked by operation of law.
(8) The judgment, the partition and distribution of the prop. of the spouses, and the delivery of
the children's presumptive legitimes shall be recorded in the appropriate civil registry.
(9) After all the foregoing, the former spouses are free to marry again; otherwise, the
subsequent M shall be void.

Liability for Damages.-- [I]t is submitted that in an appropriate case, damages may be recovered
by an injured party from another responsible for the nullity of a void or voidable marriage. The bais of
the liability will be the commission of an unlawful act or BF. Arts. 20 and 21 of the NCC can serve as
the legal basis for an action for damages.

VI. STATUS OF FOREIGN MARRIAGES.-- Art. 26

Art. 26. All marriages solemnized outside the Philippines in accordance with the
laws in force in the country, where they were solemnized, and valid there as such, shall
also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6),
36, 37, 38.
xxx.

Art. 35 (1) - below 18


(4) - bigamous or polygamous
(5) - mistake as to identity
(6) - non-registration with the LCR of the ff:
- judgment of annulment or absolute
nullity of the marriage
- partition and distribution of
properties of the spouses
- delivery of the children's presumptive
legitimes
Art. 36 - psychological incapacity
Art. 37 - incestuous marriages
Art. 38 - marriages that are void as against public policy

Balane: If the marriage w/c is solemnized abroad is void under Phil. law, it is considered void in the
Phils.
Exceptions: Art. 35, paragraphs 2 and 3.

Jovito Salonga, Private International Law II, 1995 ed. (hereinafter Salonga):
Philippine Law on Formal Validity.-- Phil. law adheres to the imperative rule: a marriage formally
valid where celebrated is valid elsewhere (the maxim locus regit actum is applied compulsorily; the
law of the place of celebration, the lex loci celebrationis, is solely decisive.) Par. 1 of Art. 17, NCC
embodies the maxim locus regit actum: "The forms and solemnities of contracts, wills, and other
public instruments, shall be governed by the laws of the country in w/c they are executed."
xxx To establish a valid foreign marriage, 2 things must be proven, namely, (1) the existence
of the foreign law as a question of fact; and (2) the alleged foreign marriage by convincing evidence.
(Yao Kee v. Sy-Gonzales, supra.)

Marriage by Proxy.-- Proxy marriages, where permitted by the law of the place where the
proxy participates in the marriage ceremony, are entitled to recognition in countries adhereing to the
lex loci celebrationis rule, at least insofar as formal validity is concerned.
Baviera: Marriage by proxy abroad affects formal requisite only. It can be argued as valid.

Philippine Law on Substantive Validity.-- W/ reference to marriages celebrated abroad, Phil. law
primarily refers to the law of the place of celebration. xxx The general rule expressed in the formula
"valid where celebrated, valid everywhere" admits of at least 2 exceptions: (1) in the case of Filipino
nationals who marry abroad before Phil. consular or diplomatic officials; (2) in the saving clause of Art.
26 par. 1.
xxx Art. 26 par. 1 of the FC is a domestic, internal rule applicable only to Filipino nationals.
However, universally incestuous marriages-- such as those bet. parents and children or bet. brothers
and sisters-- will be considered void here, whatever may be the nationality of the spouses.
xxx As a general rule, a marriage should be upheld if valid according to the law of the place of
celebration, unless the M itself or the enjoyment of the incidents of the marital relationship would
offend the strongly-held notions of decency and morality of a State that has a close relationship to the
contracting parties.

Art. 26. xxx


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. (n)
(as amended by E.O. 227, dated July 17, 1987.)

Balane: This is the only instance where we recognized foreign divorce.


Take note that the requirements in Art. 52 need not be complied w/ because there is no such
requirement in Art. 26, par. 2.

Requisites.-- There are four requisites for this Article to apply:


1. The marriage must be one between a Filipino and a foreigner
2. Divorce is granted abroad.
3. Divorce must have been obtained by the alien spouse
4. Divorce must capacitate the alien spouse to remarry.

Query: Suppose the foreign spouse was a former Filipino citizen. Does the law require that the foreign
spouse was already a foreigner at the time the marriage was contracted?

A: There is no Supreme Court ruling on this. But a 1993 DOJ opinion tells us that Art. 26 does not
require that the alien spouse was already a foreigner at the time of the marriage.

Salonga: Art. 26 par. 2 applies to a situation where the alien spouse was the one who obtained the
divorce decree abroad capacitating him or her to remarry, in w/c case the Filipino spouse shall likewise
have the capacity to remarry.

Tolentino: This rule seems to place a Filipino citizen on a plane of inequality. The reason for this is
that our law does not allow the Filipino to seek a foreign divorce, hence, if he obtains one, it is not
recognized in the Phils. He is subject to the Phil. law on status, wherever he goes.

Historical Background of Art. 26, par. 2 (BEAVIERA CASE)

VAN DORN V. ROMILLO [139 S 139 (1985)] - According to Baviera, the second paragraph of Art. 26
was brought about by the case of Van Dorn v. Romillo, where the court held that an American husband
granted absolute divorce in his country is estopped from asserting his rights over property allegedly
held in the Philippines as conjugal property by him and his former wife. To maintain, as the husband
does, that under our laws, the wife has to be considered still married to him and still subject to a wife's
obligation under the Civil Code cannot be just. Petitioner wife should not be obliged to live together
with, observe respect and fidelity, and render support to her husband. The husband should not
continue to be one of her heirs with possible rights to conjugal property. SHE SHOULD NOT BE
DISCRIMINATED AGAINST IN HER OWN COUNTRY IF THE ENDS OF JUSTICE ARE TO BE SERVED.

TENCHAVEZ V. ESCANO [15 S 355] - supra. (Art. 15, NCC.)

(not in Balane's outline)


MUSLIM CODE- P.D. 1083

Art. 13. (1) Application. The provisions of this Title shall apply to marriage and
divorce wherein both parties are Muslims, or wherein only the male party is a Muslim and
the marriage is solemnized in accordance with Muslim law or this Code in any part of the
Philippines.
(2) In case of a marriage between a Muslim and non-Muslim, solemnized not in
accordance with Muslim law or this Code (Muslim Code), the Civil Code of the Philippines
shall apply.

Art. 29. (1) (Subsequent Marriage) By divorcee - (1) No woman shall contract a
subsequent marriage unless she has observed an idda of three monthly courses counted
from the date of divorce. However, if she is pregnant at the time of the divorce, she may
remarry only after delivery.

(not in Balane's outline)


PENAL SANCTIONS - ACT 3613, The Marriage Law, Secs. 30-42

Sec. 30-36. Superseded by New Civil Code, Now Title I, FC

Sec. 37. Influencing parties in religious respects. - Any municipal secretary or clerk
of the Municipal Court (now Local Civil Registrar), who directly or indirectly attempts to
influence any contracting party to marry or refrain from marrying in any church, sect, or
religion or before any civil authority, shall be guilty of a misdemeanor and shall, upon
conviction thereof, be punished by imprisonment for not more than one month and a fine
of not more than two hundred pesos.

Sec. 38. Illegal issuance or refusal of license. - Any municipal secretary (now Local
Civil Registrar) or clerk of the Municipal Court of Manila (Local Civil Registrar) who issues a
marriage license unlawfully or who maliciously refuses to issue a license to a person
entitled thereto or fails to issue the same within twenty-four hours after the time when,
according to law, it was proper to issue the same, shall be punished by imprisonment for
not less than one month nor more than two years, or by a fine of not less than two hundred
pesos nor more than two thousand pesos.

Sec. 39. Illegal solemnization of marriage. - Any priest or minister solemnizing


marriage without being authorized by the Director of the Philippine National Library (now
Director of National Library) or who, upon solemnizing marriage, refuses to exhibit his
authorization in force when called upon to do so by the parties or parents, grandparents,
guardians, or persons having charge; and any bishop or officer, priest, or minister of any
church, religion or sect the regulations and practices whereof require banns or publications
previous to the solemnization of a marriage in accordance with section ten (superseded by
Art. 60, New Civil Code, now under Art. 12, EO No. 209, as amended), who authorizes the
immediate solemnization of a marriage that is subsequently declared illegal; or any officer,
priest or minister solemnizing marriage in violation of the provisions of this act, shall be
punished by imprisonment for not less than one month nor more than two years, or by a
fine of not less than two hundred pesos nor more than two thousand pesos.
Sec. 40. Marriages in improper places. - Any officer, minister, or priest solemnizing
marriage in a place other than those authorized by this Act, shall be punished by a fine of
not less than twenty five pesos nor more than three hundred pesos, or both, in the
discretion of the court.

Sec. 41. Failure to deliver marriage certificate. - Any officer, priest or minister
failing to deliver to either of the contracting parties one of the copies of the marriage
contract or to forward the other copy to the authorities within the period fixed by law for
said purpose, shall be punished by imprisonment for not more than one month or by a fine
of not more than three hundred pesos, or both, in the discretion of the court.

Sec. 42. Affidavit on marriage "in articulo mortis." - Any officer, priest, or minister
who, having solemnized a marriage in articulo mortis or any other marriage of exceptional
character, shall fail to comply with the provisions of Chapter II of this Act (Chapter 2, Title
III, New Civil Code, now Title I, Family Code), shall be punished by imprisonment for not
less than one month nor more than two years, or by a fine of not less than three hundred
pesos nor more than two thousand pesos, nor both, in the discretion of the court.

Sec. 43. Unlawful signboards. - Any person who, not being authorized to solemnize
marriage, shall publicly advertise himself, by means of signs or placards placed on his
residence or office or through the newspapers, as authorized to solemnize marriage, shall
be punished by imprisonment for not less than one month nor more than two years, or by a
fine of not less than fifty pesos nor more then two thousand pesos, or both, in the
discretion of the court.

Sec. 44. General penal clause. - Any violation of any provision of this Act not spe-
cifically penalized, or of the regulations to be promulgated by the proper authorities, shall
be punished by a fine of not more then two hundred pesos or by imprisonment for not
more than one month, or both, in the discretion of the court.

Sec. 45. Disqualification of priests and ministers. - Any priest or minister of the
gospel or any denomination, church, sect, or religion convicted of the violation of any of
the provisions of this Act or of any crime involving moral turpitude, shall, in addition to the
penalties incurred in each case, be disqualified to solemnize marriage for a period of not
less than six months nor more than six years at the discretion of the court. (As amended by
Act No. 4236).

V. LEGAL SEPARATION

Tolentino: Divorce and Its Kinds.-- Divorce is the dissolution or partial suspension, by law, of the
marital relation; the dissolution being termed divorce from the bond of matrimony, or a vinculo
matrimonii; the suspension being known as divorce from bed and board, or a mensa et thoro. The
former is sometimes also called absolute, and the latter relative divorce.

Legal Separation and Separation of Property.-- In the former, there is a suspension of common
marital life, both as to person and property, while in the latter, only the property relation is affected,
and the spouses may be actually living together.

Legal Separation and Separation of Spouses.-- Legal Separation (LS) can be effected only be
decree of the court; but the spouses may be separated in fact w/o any judgment of the court. Under
the NCC, any contract for personal separation between husband and wife shall be void and of no
effect. [Art. 221 (1), NCC.] With the repeal of Art. 221, and the omission from the FC of a similar
provision, the rule prior to the NCC is restored, and such agreements are again valid.

Foreign Divorces.-- A foreign divorce bet. Filipino citizens, sought and decreed after the effectivity
of the NCC, is not entitled to recognition as valid in the Phils. This is still the rule under the FC.

Baviera case:

TENCHAVEZ V. ESCANO [15 S 355 (1965)] - Where the wife, a Filipina, deserted her Filipino husband,
obtained a divorce in the U.S., married an American citizen, and later herself became an American
citizen, the Filipino husband is entitled to legal separation conformably to Philippine law and to
damages. (1) A foreign divorce between Filipino citizens, sought and decreed after the effectivity of
the New Civil Code, is not entitled to recognition as valid in the Philippines, and neither is the marriage
contracted with another party by the divorced consort, subsequenlty to the foreign decree of divorce,
entitled to validity in this country. (2) Invalid divorce entitles innocent spouse to recover damages
(P25,000 as moral damages; basis - 2176). (3) An action for alienation of affection against the parents
of one consort does not lie in the absence of proof of malice or unworthy motives on their part.

Note: WHAT IS IMPORTANT IS THE CITIZENSHIP AT THE TIME OF MARRIAGE.

Baviera - loophole: supposing the wife became an american citizen first, then divorced her Filipino
husband, would it still constitute as adultery giving rise to legal separation? [NO]

A. GROUNDS

ART. 55. A petition for legal separation may be filed on any of the following
grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious
or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a
child of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six
years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in
the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more
than one year.
For purposes of this Article, the term "child" shall include a child by nature or
adoption.

Balane: This is an exclusive enumeration.


Observe that some grounds would tend to overlap w/ the grounds for annulment. In such a
case, the aggrived party has the option, either to bring an action for annulment or for LS.

Paragraph (1).-- Tolentino: The violence must be of a serious degree, but does not have to
amount to an attempt against the life of the the petitioner., w/c is covered by par. (9). The violence
must be repeated, to the extent that common life w/ def. becomes extremely difficult for the plaintiff.
It is submitted that the repeated physical violence or the grossly abusive language should be
committed only by one spouse and not by both to each other.

Paragraph (2).-- Tolentino: The physical violence or moral pressure to compel the plaintiff to
change religious or political affiliation need not be repeated. A single incident would be enough.
Balane: The pressure must be undue. It becomes undue when the other spouse is deprived of
the free exercise of his or her will.

Paragraph (3).-- Tolentino: If both spouses agree that the wife or a daughter engage in
prostitution, neither one should be allowed to obtain LS, on the principle that a person should come to
court w/ clean hands.

Paragraph (4).-- Tolentino: The crime for w/c the def. was convicted is immaterial.
Paragraph (5).-- Balane: This ground does not have to exist at the time of the marriage.
Distinguish this from Art. 46 (4).

Paragraph (6).-- Balane: Questions.-- (1) Will knowledge of one party that the other was a
lesbian or a homosexual bar the action for LS? (2) Does homosexuality contemplate sexual
orientation or does it contemplate only homosexual practice.
Baviera - homosexuality refers to practice, not by nature; if by nature, then Art. 36 will apply.

Tolentino: On pars. 5 & 6.-- These grounds can be reason for actions for LS only when they
come to exist after the celebration of the marriage. If the defect had existed at the time of the
marriage, but the marriage had been ratified by continued cohabitation or the action to annul has
prescribed, it is submitted that the action for LS may n ot be subsequently brought.

Paragraph (7).-- Tolentino: Would this include a subsequent marriage by a person after a
declaration of presumptive death of the other spouse? It is submitted that every subsequent
marriage, where there is a subsisting prior marriage, should give the other spouse the right to ask for
LS.

Paragraph (8).-- Tolentino: Sexual Infidelity.-- The act of a wife in having sexual
intercourse w/ any other man not her husband will constitute adultery. On the other hand,
concubinage is committed by the husband in three ways: (1) by maintaining a mistress in the conjugal
dwelling: (2) by having sexual intercourse w/ the other woman under scandalous circumstances; and
(3) by cohabiting w/ her in any other place. xxx To equalize the situation of husband and wife in this
respect, the FC makes "sexual infidelity" sufficient ground for either to justify the grant of LS.
Sexual Perversion.-- This includes all unusual or abnormal sexual practices w/c may be
offensive to the feelings or sense of decency of either the husband or the wife. But if the act of sexual
perversion is by free mutual agreement, neither party can ask for LS, bec. they are equally guilty of
the perverse act.
Balane: Sexual Perversion is a flexible concept. It is basically, a cultural thing.

BALANE CASE:

GANDIONCO V. PENARANDA [155 SCRA 725] - A civil action for LS, based on concubinage, may
proceed ahead of, or simultaneously w/, a criminal action for concubinage, bec. said civil action is not
one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions
arise from or are related to the same offense. xxx
A decree of LS, on the ground of concubinage may be issued upon proof of preponderance of
evidence in the action for LS. No criminal proceeding or conviction is necessary.

Paragraph (9).-- Tolentino: An attempt against the life of the plaintiff spouse, as a ground for
LS, implies that there is intent to kill. xxx [But] the act against the life of the plaintiff spouse must be
wrongful in order to constitute a ground for LS.
Baviera: Even if repeated physical violence, this can fall under No. 1.
Paragraph (10).-- Tolentino: Under Art. 101, "the spouse who has left the conjugal dwelling for
a period of three months or has failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Art. 56. The petition for legal separation shall be denied on any of the following
grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or
act complained of;
(3) Where there is connivance between the parties in the commission of the offense
or act constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain the decree of legal
separation; or
(6) Where the action is barred by prescription.

Balane: There are other grounds that are not found in Art. 56.
(7) Death of either party pendente lite. (Lapuz v. Eufemio, supra.)

Tolentino: LS is a personal right and does not survive death.

(8) Reconciliation pendente lite. (Art. 66 par. 1.)

Paragraph (1).-- Tolentino: Condonation as Defense.-- Condonation is the forgiveness of a


marital offense constituting a ground for LS, and bars the right to LS.
It may be express or implied. It is express when signified by words or writing, and it is implied
when it may be inferred from the acts of the injured party.
Balane: Condonation is pardon w/c comes after the offense.

MATUBIS V. PRAXEDES [109 P 788 (1960)] - The law specifically provides that legal separation may
be claimed only by the innocent spouse provided the latter has not condoned or consented to the
adultery or concubinage committed by the other spouse; and plaintiff having condoned and/or
consented IN WRITING to the concubinage committed by the defendant husband, she is now
undeserving of the court's sympathy.

Baveria: The stipulation though void is equivalent to express consent.

Paragraph (2).-- Consent.-- Tolentino: Consent is the agreement or conformity in advance of


the commission of the act w/c would be a gorund for LS.

Paragraph (3).-- Connivance.-- Tolentino: Connivance is distinguished from consent in that


consent is unilateral, or an act of only one spouse. Connivance implies agreement, express or implied,
by both spouses to the ground for LS.

Paragraph (4).-- Recrimination.-- Tolentino: Recrimination is a countercharge in a suit for


LS that the complainant is also guilty of an offense consituting a ground for LS. This defense is based
on the principle that a person must come to court w/ clean hands.

Paragraph (5).-- Effect of Collusion.-- Tolentino: Collusion is the agreement bet. husband
and wife for one of them to commit, or to appear to commit or presented in court as having
committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of
enabling the other to obtain LS.

B. LIMITATION OF ACTION

Art. 57. In action for legal separation shall be filed within five years from the time
of the occurrence of the cause.

Tolentino: The law does not encourage LS, and provides for prescription of the action even when the
offended party has not had knowledge of the cause. xxx If plaintiff does not come to know of the
ground for LS, and 5 yrs. expire from the date of its occurence, he cannot sue for LS.
Baviera cases:

BROWN V. YAMBAO [54 O.G. 1827 (1957)] - In an action for legal separation on the ground of
adultery filed by the husband, even though the defendant wife did not interpose the defense of
prescription, nevertheless, the courts can take cognizance thereof, because actions seeking a decree
of legal separation or annulment of marriage, involve public interest, and it is the policy of our law that
no such decree be issued if any legal obstacles thereto appear upon the record. Also, the husband was
guilty of commission of the same offense by living with another woman.

Baviera: This is an exception the Rules of Court provision that defenses not raised in the pleadings will
not be considered, since provisions on marriage are substantive in nature.
C. HEARING

Art. 58. An action for legal separation shall in no case be tried before six months
shall have elapsed since the filing of the petition.

Tolentino: This article is intended to give the spouses a chance to reconcile.

LAPUZ V. EUFEMIO [43 S 177 (1972)] - infra.

Balane: Incidental matters may be heard even during the six-months cooling-off period.

Rufus Rodriguez, The FAMILY CODE of the Philippines Annotated, 2nd ed. (hereinafter, Rodriguez):
During the six month period, the court may still act to determine the custody of the children, alimony
and support pendente lite.

ARANETA V. CONCEPCION [99 P 709 (1956)] - Evidence not affecting the cause of separation, like
the actual custody of the children, the means conducive to their welfare and convenience during the
pendency of the case, should be allowed so that the court may determine which is best for their
custody.

SOMOSA-RAMOS V. VAMENTA [46 S 110 (1972)] - An ancillary remedy of preliminary mandatory


injunction is not barred by the six-month statutory suspension of trial in an action for legal separation.
In this case, the wife filed a petition for legal separation, and a motion for preliminary mandatory
injunction for the return of what she calims to be her paraphernal and exclusive property.
Art. 103 NCC is not an absolute bar to the hearing of a motion for preliminary injunction priot
to the expiration of the 6 months period. xxx That the law remains cognizant of the need in certain
cases for judicial power to assert itself is discernible from what is set from what is set forth in Art. 104
NCC (now Art. 61, FC.) Here, there would appear to be a recognition that the question of management
of the spouses' respective property need not be left unresolved even during the 6 months period. An
administrator may even be appointed for the management of the prop. of the conjugal partnership.

PACETE V. CARRIAGA [231 SCRA 321] - (Art 58) of the FC mandates that an action for LS must "in
no case be tried before six months shall have elapsed since the filing of the petition," obviously in
order to provide the parties a "cooling-off" period. In this interim, the court should take steps toward
getting the parties to reconcile.

Art. 59. No legal separation may be decreed unless the Court has taken steps
toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that
reconciliation is highly improbable.

Tolentino: The effort of the Court is not limited to the period before trial (at least 6 mos.) but may be
continued even after trial and before judgment is rendered.

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the evidence is
not fabricated or suppressed.

BALANE CASE:

DE OCAMPO V. FLORENCIANO [107 P 35 (1960)] - Where the husband, after finding the wife guilty
of adultery sent her to Manila to study beauty culture, and there she committed another adultery with
a different man, and the husband filed a petition for legal separation, the wife's admission to the
investigating fiscal that she committed adultery, in the existence of evidence of adultery other than
such confession, is not the confession of judgment disallowed by the Code. What is prohibited is a
confession of judgment - a confession done in court or through a pleading.

(1) "Where there is evidence of the adultery independently of the defendant's statement
agreeing to the legal separation, the decree of separation should be granted, since it would not be
based on the confession but upon the evidence presented by the plaintiff. What the law prohibits is a
judgment based EXCLUSIVELY on defendant's confession."

(2) The failure of the husband to actively search for his wife who left the conjugal home after
his discovery of her illicit affairs, and to take her home does not constitute the condonation or consent
to the adultery. It was not his duty to search for her.

(3) The petition should be granted based not on the first adultery, which has already pre-
scribed, but on the second adultery, which has not yet prescribed. Adapted.

1. RIGHTS AND OBLIGATIONS OF PARTIES

Art. 61. After the filing of the petition for legal separation, the spouses shall be
entitled to live separately from each other.
The court, in the absence of a written agreemnt between the spouses, shall
designate either of them or a third person to administer the absolute community or
conjugal partnership property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules of Court.

Balane case:

SABALONES V. CA [230 SCRA 79] - In case of an action for legal separation, where the spouses did
not agree as to who will administer the conjugal partnership, the Court may appoint one of the
spouses. Such appointment may be implied.
xxx
While it is true that not formal designation of the administrator has been made, such
designation was implicit in the decision of the trial court denying the petitioner any share in the
conjugal properties (and thus also disqualifying him as administrator thereof.) That designation was in
effect approved by the CA when it issued in favor of the resp. wife the preliminary injunction now
under challenge.

Art. 62. During the pendency of the action for legal separation, the provisions of
Article 49 shall likewise apply to the support of the spouses and the custody and support
of the common children.

Art. 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses, the Court
shall provide for the support of the spouses and of their common children.
The Court shall give paramount consideration to the moral and material
welfare of said children and their choice of the parent with whom they wish
to remain as provided for in Title IX. It shall also provide for appropriate
visitation rights of the other parent.

Tolentino: Effects of Filing Petition:


(1) The spouses can live separately from each other
(2) The administration of the common prop., whether in absolute community or conjugal
partnership of gains, shall be given by the Court to either of the spouses or to a third person, as is best
for the interests of the community.
(3) In the absence of a written agreement of the spouses, the Court shall provide for the
support bet. the spouses and the custody and support of the common children, taking into account the
welfare of the children and their choice of the parent w/ whom they wish to remain.
(4) When the consent of one spouse to any transaction of the other is required by law, judicial
authorization shall be necessary, unless such spouse voluntarily gives such consent.

Alimony "pendente lite."-- During the pendency of the suit for legal separation upon a complaint
filed and admitted, it is the duty of the court to grant alimony to the wife and to make provisions for
the support of the children not in the possession of the father.
Should def. appear to have means to pay alimony and refuses to pay, either an order of
execution may be issued or a penalty for contempt may be imposed, or both.

Custody of the Children.-- While the action is pending, the custody of the children may be
determined in one of two ways: (1) by agreement of the spouses w/c shall not be distrubed unless
prejudicial to the children; and (2) by court order, w/c shall be based on the sound discretion of the
judge, taking into account the welfare of the children as the ruling consideration.

Baviera case:

LERMA V. CA [61 S 440 (1974)] - Where the husband filed a complaint for adultery against the wife,
and the wife filed a petition for legal separation in bad faith, the wife having been convicted of adultery
in the meantime, she is not entitled to support pendente lite. "The right to separate support and
maintenance, even from the conjugal partnership property, presupposes the existence of a justifiable
cause for the spouse claiming such right to live separately. A petition in bad faith, such as that filed by
the one who is himself or herself guilty of an act which constitutes a ground for legal separation at the
instance of the other spouse, cannot be considered as within the intendment of the law granting
separate support."

2. EFFECT OF DEATH OF A SPOUSE

BAVIERA CASES:

LAPUZ V. EUFEMIO [43 S 177 (1972)] - The death of the plaintiff BEFORE a decree of legal separation
abates such action. "An action for legal separation which involves nothing more than bed-and board
separation of the spouses is purely personal. The Civil Code recognizes this (1) by allowing ony the
innocent spouse (and no one else) to claim legal separation; (2) by providing that the spouses can, by
their reconciliaton, stop or abate the proceedings and even rescind a decree of legal separation
already granted. Being personal in character, it follows that the death of one party to the action causes
the death of the action itself - actio personalis moritur cum persona." Even if property rights are
involved, because these rights are mere effects of the decree of legal separation, being rights in
expectation, these rights do not come into existence as a result of the death of a party. Also under the
Rules of court, an action for legal separation or annulment of marriage is not one which survives the
death of spouse.

MACADANGDANG V. CA [108 S 314 (1981)] - The death of a spouse AFTER a final decree of legal
separation has no effect on the legal separation. The law clearly spells out the effect of a final decree
of legal separation on the conjugal property. Therefore, upon the liquidation and distribution
conformably with the effects of such final decree, the law on intestate succession should take over the
disposition of whatever remaining properties have been allocated to the deceased spouse.

D. DECREE OF LEGAL SEPARATION

1. EFFECTS

Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the
marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and
liquidated but the offending spouse shall have no right to any share of the net profits
earned by the absolute community or the conjugal partnership, which shall be forfeited in
accordance with the provisions of Article 43 (2);

Art. 43. The termination of the subsequent marriage referred to in


the preceding Article shall produce the following effects:
xxx
(2) The absolute community of property or the conjugal partnership,
as the case may be, shall be dissolved and liquidated, but if either spouse
contracted said marriage in bad faith, his or her share of the net profits of
the community property or conjugal partnership property shall be forfeited
in favor of the common children or, if there are none, the children of the
guilty spouse by a previous marriage or, in default of children, the innocent
spouse;

(3) The custody of the minor children shall be awarded to the innocent spouse,
subject to the provisions of Article 213 of this Code; and

Art. 213. In case of separation of the 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
seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the
mother, unless the court finds compelling reasons to order otherwise.

(4) The offending spouses shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending spouse
made in the will of the innocent spouse shall be revoked by operation of law.

Balane: There are four (4) other effects

(5) Donation propter nuptias may be revoked by the innocent spouse. (Art. 64.)
(6) Designation of the guilty spouse in the insurance policy may be revoked. (id.)
(7) Cessation of the obligation of mutual support. (Art. 198.)
(8) Wife may continue using the surname before the decree of legal separation. (Art. 372,
NCC.)

Tolentino: Support and Assistance.-- After the decree of LS, the obligation of mutual support bet.
the spouses ceases; however, the court may order that the guilty spouse give support to the innocent
spouse. (Art. 198.)

Successional Rights.-- The guilty spouse, by virtue of the decree of LS becomes disqualified
to succeed the innocent spouse. She would not even be entitled to the legitime. xxx But if the will is
executed after the decree, the disposition in favor of the offender shall be valid.

Balane case:

LEDESMA V. INTESTATE ESTATE OF PEDROSA [219 SCRA 806] - The law mandates the
dissolution and liquidation of the prop. regime of the spouses upon finality of the decree of LS. Such
dissolution and liquidation are necessary consequences of the final decree. This legal effect of the
decree of legal separation ipso facto or automatically follows, as an inevitable incident of, the
judgment decreeing the LS for the purpose of determining the share of each spouse in the conjugal
assets. (citing Macadangdang v.CA, 108 SCRA 314.)

Art. 64. After the finality of the decree of legal separation, the innocent spouse may
revoke the donations made by him or by her in favor of the offending spouse, as well as
the designation of the latter as a beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the donation 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 the recording of the complaint for
revocation in the registries of property shall be respected. The revocation of or change in
the designation of the insurance beneficiary shall take effect upon written notification
thereof to the insured.
The action to revoke the donation under this Article must be brought within 5 years
from the time the decree of legal separation become final.

2. RECONCILIATION

Art. 65. If the 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.

Tolentino: Concept of Reconciliation.-- Reconciliation is a mutual agreement to live together again


as husband and wife. It must be voluntary mutual agreement.
xxx
It is submitted that the fact of resuming common life is the essence of reconciliation and
terminates the legal separation even if the joint manifestation has not been filed in court.

Balane: Contrary view.-- Technically, what will set aside the decree of LS is the filing of a joint verified
manifestation of reconciliation. Without that, the court cannot act motu proprio.

Art. 66. The reconciliation referred to in the preceding Article shall have the
following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at
whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of
property and any forfeiture of the share of the guilty spouse already effected shall subsist,
unless the spouses agree to revive their former property regime.
The court order containing the foregoing shall be recorded in the proper civil
registries.

Balane: Effects of Reconciliation:

(1) Custody over the children.-- Joint custody is restored.


(2) Compulsory and intestate succession is restored.
(3) Testamentary succession.-- There is no revival. Reconciliation will not necessarily revive
the institution of the guilty spouse in the will of the innocent spouse.
(4) Donation propter nuptias will remain revoked.

Art. 67. The agreement to revive the former property regime referred to in the
proceeding Article shall be executed under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing
to each.
The agreement of revival and the 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, the court shall, in its order, take measures to
protect the interest of creditors and such order shall be recorded in the proper registries
of properties.
The recording of the order 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 creditor's claim.

Tolentino: New Regime.-- The FC authorizes the spouses to agree to "revive their former property
regime." We submit that this is not restrictive and does not limit the spouses to the regime they had
before the decree of LS. The spouses are placed in the same position as before the marriage and
could establish the property regime they want, as if making a marriage settlement. xxx If they do not
agree on any system, then by law their new regime will be that of separation of property.

V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

Tolentino: Dual Aspect of Family Relations.-- There are 2 aspects in family relations, one internal
and another external. In the internal aspect, w/c is essentially natural and moral, the family is
commonly known to be sacred and inaccessible even to the law. It is only in the external aspects,
where third persons and the public interest are concerned, that the law fixes rules regulating family
relations.

A. IN GENERAL

Art. 68. The husband and wife are obliged to live together, observe mutual love,
respect and fidelity, and render mutual help and support.

Balane: These are called legal obligations but they are more of a statement of policy. An action for
specific performance is not proper to enforce these obligations. The only possible consequences are
found in Art.100 for ACP and 127 for CPG.
With regard to the mutual obligation of fidelity, there are consequences both civil and criminal
(adultery or concubinage.).
With respect to support, there are legal provisions in the FC w/c carry out the duty.

Tolentino: Right of Cohabitation.-- Marriage entitles the husband and wife to each other's society,
that is, they are mutually entitled to cohabitation or consortium. This means that they shall have a
common life, under the same roof, to better fulfill those obligations inherent in the matrimonial status.

Scope of Right.-- The right of cohabitation includes domestic and sexual community of the
spouses, the extent of both of w/c will differ according to the circumstances. xxx [T]he spouses will be
considered as living together, although driven by the stress of circumstances or pecuniary difficulties
to separate, if there is no intention on the part of either to sever their marital relations permanently.
xxx But for the purpose of the law, only the tangible and material aspect of cohabitation can
be taken into account. The law is powerless to impose that intimacy of life w/c is the basis of conjugal
peace and happiness.

Sexual Relations.-- Although a husband is entitled to sexual relations w/ his wife, and it is
not rape to force the wife to have sexual relations against her will, this right is not absolute. The right
involves only normal intercourse.

Legal Sanction for Cohabitation.-- Cohabitation by the parties must be spontaneous and
cannot be imposed by the law or the courts. The only possible sanction is patrimonial in nature. If the
husband refuses to live w/ the wife, he can be compelled to pay her a pension, and indemnity for
damages; and if the wife refuses to live w/ the husband, he can refuse to support her.

Use of Force.-- The husband cannot by the use of force, even of public authority, compel the
wife to return home. Such remedy would be a violation of personal dignity and security. xxx Modern
law abhors imprisonment for debt, and coercive measures to compel the wife to live w/ the husband
would be worse than imprisonment for debt.

Remedies for Interference.--Any person who interferes w/ the right of the spouses to
cohabitation may be held liable for damages under Art. 26, FC.

Mutual Fidelity.-- This fidelity is the loyalty w/c each should observe toward the other, the wife
having nothing to do w/ another man, nor the husband w/ another woman.

Mutual Help.-- Mutual help involves care during sickness, and bearing the inconvenience caused by
such sickness, of the other spouse. xxx
The obligation of mutual help, however, is not limited to material assistance and care during
sickness. It extends to everything that involves moral assistance, and mutual affection and regard.
There are positive legal provisions w/c reveal the scope of this duty and implement the general
rule laid down in the present article. Among them are: (1) the legitimacy of defense of a spouse (Art.
11, RPC); (2) the increase in penalty in a crime by one spouse against the person of the other (Art.
246, id.); (3) the incapacity of one spouse to testify against the other (R123, Sec. 26, ROC); (4) the
right of one spouse to object to adoption of or by the other (Arts. 185 and 188); and (5) the prohibition
of donations between them (Art. 87.)

Legal Sanction.-- The only aspect of the obligation of mutual help for w/c there is a legal
sanction is the duty to support. This can be enforced by court action. But the law cannot penetrate to
the intimate relations in the home in order to enforce the mutual obligations of care, of moral
assistance, and of mutual affection and regard.
Position of Spouses in the Family.-- The perfect parity of rights and duties of H & W has to be
reconciled w/ the need for unity of direction in the family. Since the power of direction cannot be
vested at the same time in 2 persons, the existence of a head of the family becomes imperative; and
both nature and tradition have given this prerogative to the husband
xxx This power of the H as head of the family, however, is not composed of rights and
prerogatives, but of duties and responsibilities, bec. the H does not use it for his personal benefit but
for the greater and higher interests of the family.

Chastisement of Wife.-- Chastisement is unlawful, and it has been held that the H should
not be permitted to inflict personal chastisement upon his wife, even for the grossest outrage. The
only possible exception to this rule under our law is that given in Art. 247 of the RPC, w/c provides
that:

Art. 247. Any legally married person who, having surprised his
spouse in the act of committing sexual intercourse with another person, shall
kill any of them or both of them in the act or immediately thereafter, or shall
inflict upon them any serious physical injury, shall suffer the penalty of
destierro. If he shall inflict upon them physical injuries of any other kind, he
shall be excempt from punishment.

Love Between Spouses.-- Mutual love cannot be compelled or imposed by court action.

BALANE CASES:

ARROYO V. VASQUEZ [42 P 54] - Def. is under obligation both moral and legal, to return to the
common home and cohabit w/ plaintiff. But the great weight of authorities, however, is strongly
convincing that it is not w/in the province of the courts in the Phils. to compel anyone of the spouses to
cohabit w/ and render conjugal rights to the other.

VAN DORN V. ROMILLO [139 SCRA 139] - supra. (Art. 15 NCC.)

To maintain, as private resp. does, that under our laws, petitioner has to be considered as still
married to private resp. and still subject to a wife's obligations under Art. 109 et seq. of the NCC
cannot be just. Petitioner should not be obliged to live together w/, observe respect and fidelity, and
render support to private resp. The latter should not continue to be one of the heirs w/ possible rights
to conjugal property. She should not be discriminated against in her own country if the ends of justice
are to be served.

Art. 69. The husband and wife shall fix the family domicile. In case of disagreement,
the court shall decide.
The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.

Balane: The power to fix residence is joint. Whatever residence is fixed should bind both parties.
Tolentino: The right to fix family domicile includes the right to change it, so long as the spouses agree
to the transfer.

Separate Residence.-- It can be said that any of the grounds for LS would be sufficient for a spouse
to have a separate domicile, if he or she prefers that to LS.

Art. 70. The spouses are jointly responsible for the support of the family. The
expenses for such support and other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income of or fruits of their separate
properties. In case of insufficiency or absence of said income or fruits, such obligations
shall be satisfied from their separate properties.

Balane: Art. 70 is an implementation of the third duty of the spouses, that of support. Correlate this
w/ Art. 194.
Where to get the funds? There are three sources in the order of priority:

1. From the common property

2. From the income or fruits of the separate property

Note: Numbers 1 and 2 are different sources only if the property relationship is ACP. In CPG,
numbers 1 and 2 will be the same.

3. From the separate property themselves.

Art. 71. The management of the household shall be the right and duty of both
spouses. The expenses for such management shall be paid in accordance with the
provisions of Article 70.

Tolentino: What Properties Answerable.-- The order of liability for family support of the different
properties of the marriage is: first, the community prop., then the income of the spouses or fruits of
their separate properties, and finally, the separate properties of the spouses. The liability of the
spouses for the support of the family being joint, this may mean that they contribute equally,
regardless of the value of the respective properties of the spouses. However, this would not be
equitable. The better rule seems to be that the contribution should be proportionate to the properties
of the spouses.

Management of Household.-- In view of the silence of the law on how the disagreement bet. the
spouses in the management of the household shall be settled, the custom should be observed, and the
wife's position should be given priority.

Art. 72. When one of the spouses neglects his or her duties to the conjugal union or
commits acts which tend to bring danger, dishonor or injury to the other or to the family,
the aggrieved party may apply to the court for relief.

Tolentino: What Relief May Be Granted.-- Under the NCC, when one party applies for relief bec. of
the acts or negligence of the other spouse, "the court may counsel the offender to comply with his or
her duties, and take such measures as may be proper." Notwithstanding this omission in the FC, we
believe that the court has full freedom to determine the kind of relief that may be given. The relief,
however, must be lawful.

Art. 73. Either spouse may exercise any legitimate profession, occupation, business
or activity without the consent of the other. The latter may object only on valid, serious,
and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the
benefit accrued prior to the objection, the resulting obligation shall be enforced against
the community property. If the benefit accrued thereafter, such obligation shall be
enforced against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in
good faith. (words in italics were omitted in the text that Malacanang released.)

Tolentino: Disposition of Products of Activity.-- May the husband or wife engaged in a profession
or business freely dispose of the products of such activity? A distinction should be observed.
If the disposition is in the course of the professional or commercial activity, the spouse should
be free to dispose of the products of such activity. xxx But if the funds will be used to buy real estate,
then the spouse should act jointly, if the property regime of the marriage is absolute community or
conjugal partnershiup of gains, bec. such funds are common prop. of the marriage.

B. OBLIGATION TO LIVE TOGETHER

ARROYO V. ARROYO [42 S 54 (1921)] - The courts can make a judicial declaration of abandonment
without sufficient justification but it cannot compel cohabitation, consortium being a purely personal
right. However, the courts can impose economic sanctions or such unjustified departure from the
conjugal dwelling.

PEREZ V. PEREZ [109 P 656 (1960)] - Material injury as used in Article 116 of the Civil Code (Art. 72
of the Family Code) does NOT refer to patrimonial (economic) injury or damage, but to personal (i.e.
physiical or moral) injury to one of the spouses since Art. 116 lies in the chapter concering PERSONAL
RELATIIONS between husband and wife.