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THE FAMILY CODE

Executive Order No. 209


Took effect on August 3, 1988
Implements the following provisions of the Constitution:
Section 12 Art. II. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally protect the life
of the mother and the life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Section 14 Art. II. The State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and men.
ART. XV
Section 1. The State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family
and shall be protected by the State.
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.
Art. 1 improves on the definition of marriage in Art. 52 of the NCC by stating that:
Marriage is:
1. A special contract;
2. A permanent union;
3. A union between a man and a woman;
4. Entered into in accordance with law and
5. For the purpose of establishing conjugal and family life
ASPECTS OF MARRIAGE
1. As a contract
2. As a status
As a contract, marriage is special because
1. Only a man and a woman can enter into it;
2. It is a permanent contract and may be dissolved only by death or annulment or
declaration of nullity;
3. The rights, duties, obligations and other incidents cannot be stipulated save on
property relations
4. Breach of contract of marriage is criminally and civilly dealt with unlike in ordinary
contract.
5. Once a valid contract of marriage exists, the STATUS of being married is created.
As a status:
1. It is no longer just a contract but an inviolable social institution that becomes the
foundation of the family.
2. Being an institution of public order and policy, its nature, consequences and incidents
are governed bylaw and not subject of stipulations; and
3. It carries with it implications in 2 fields:
a. The realm of personal rights and
obligations of spouses; and

b. The realm of property relations


Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (53a)
Consent freely given is that which is given by the parties and not by their parents.
The personal appearance by the party before the solemnizing officer is required so that
each may have the opportunity to inform the former of any vice of consent to warrant
the suspension or stoppage of the marriage ceremony.
The capacity of a foreigner to get married in the Philippines is governed by his national
law.
Hence, if he applies for a marriage license to be able to get married in the Philippines, he
is required to present a certificate of legal capacity to contract marriage from the embassy
or consular office of his country in the national law of said foreigner and whether he has
capacity to marry under said law.
A divorced foreigner can be issued a marriage license to marry again in the Philippines
provided he can present the certificate above mentioned, which means that his divorce is
recognized by his own country.
If the foreigner is stateless or a refugee from another country, so that there is no embassy
or consular office from the which he can get the above-mentioned certificate, it is enough
that he executes and affidavit stating the circumstances showing his capacity to contract
marriage.
TENEBRO vs. CA
G.R. No. 150758
February 18, 2004
FACTS:
Tenebro contracted marriage with Ancajas in 1990. The two lived
together continuously and without interruption until the latter part of 1991, when Tenebro
informed Ancajas that he had been previously married to a certain Hilda Villareyes in
1986. Petitioner thereafter left the conjugal dwelling which he shared with Ancajas,
stating that he was going to cohabit with Villareyes. In 1993, petitioner contracted yet
another marriage with a certain Nilda Villegas. Ancajas thereafter filed a complaint for
bigamy against petitioner. Villegas countered that his marriage with Villareyes cannot be
proven as a fact there being no record of such. He further argued that his second
marriage, with Ancajas, has been declared void ab initio due to psychological incapacity.
Hence he cannot be charged for bigamy.
ISSUE: Whether or not Tenebro is guilty of bigamy.
HELD: Yes
RATIO:
The second or subsequent marriage contracted during the subsistence of petitioners
valid marriage to Villareyes, petitioners marriage to Ancajas would be null and void ab
initio completely regardless of petitioners psychological capacity or incapacity.
Since a marriage contracted during the subsistence of a valid marriage is
automatically void, the nullity of this second marriage is not per se an argument for
the avoidance of criminal liability for bigamy.
A plain reading of the law, therefore, would indicate that the provision penalizes the
mere act of contracting a second or a subsequent marriage during the subsistence of
a valid marriage.
MORIGO vs. PEOPLE OF THE PHILIPPINES
G.R. No. 145226, February 6, 2004
FACTS:

Lucio Morigo and Lucia Barrete were boardmates in Bohol. They lost contacts for a
while but after receiving a card from Barrete and various exchanges of letters, they
became sweethearts. They got married in 1990. Barrete went back to Canada for
work and in 1991 she filed petition for divorce in Ontario Canada, which was granted.
In 1992, Morigo married Lumbago. He subsequently filed a complaint for judicial
declaration of nullity on the ground that there was no marriage ceremony. Morigo was
then charged with bigamy and moved for a suspension of arraignment since the civil
case pending posed a prejudicial question in the bigamy case. Morigo pleaded not
guilty claiming that his marriage with Barrete was void ab initio. Petitioner contented
he contracted second marriage in good faith.
ISSUE:
Whether Morigo must have filed declaration for the nullity of his marriage with Barrete
before his second marriage in order to be free from the bigamy case.
HELD:
No need.
RATIO:
Morigos marriage with Barrete is void ab initio considering that there was no actual
marriage ceremony performed between them by a solemnizing officer instead they
just merely signed a marriage contract. The petitioner does not need to file
declaration of the nullity of his marriage when he contracted his second marriage with
Lumbago. Hence, he did not commit bigamy and is acquitted in the case filed.
MALLION vs. ALCANTARA
G.R. No. 141528, October 31, 2006
FACTS:
Oscar Mallion filed a petition with the Regional Trial Court seeking a declaration of nullity
of his marriage with Editha Alcantara due to psychological incapacity. The RTC denied the
petition. As the decision attained finality, Mallion filed another petition for a declaration of
nullity of marriage, this time alleging that his marriage was null and void due to the fact
that it was celebrated without a valid marriage license.
Issue:
Does a previous final judgment denying a petition for declaration of nullity onthe ground
of psychological incapacity bar a subsequent petition for declaration of nullity on the
ground of lack of marriage license?
Held:
Mallion is simply invoking different grounds for the same cause of action which is the
nullity of marriage.
When the second case was filed based on another ground, there is a splitting of a cause of
action which is prohibited. He is estopped from asserting that the first marriage had no
marriage license because in the first case he impliedly admitted the same when he did not
question the absence of a marriage license.

Art. 3. The formal requisites of marriage are:


(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in Chapter 2 of this
Title; and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal declaration
that they take each other as husband and wife in the presence of not less than
two witnesses of legal age. (53a, 55a)
Art. 4.

The absence of any of the essential or formal requisites shall render the marriage void ab
initio, except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect the validity of the marriage but
the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable. (n)
Examples of Void marriages for absence of essential requisites: LEGAL CAPACITY
1. Marriage between minors;
2. Marriage between a person of age and another who is a minor;
3. Same sex marriages;
4. Marriage between persons who have legal impediments to get married under Articles
37 and 38 of the Family Code
Examples of Void marriages for absence of essential requisites: LACK OF CONSENT by the
PARTIES
1. Marriage in jest; and
2. Marriage in movies or in a play
Examples of Void marriages for absence of formal requisites: ABSENCE OF AUTHORITY OF
SOLEMNIZING OFFICER
1. Solemnized by a retired judge;
2. Solemnized by a judge or a mayor out of jurisdiction;
3. Solemnized by a pretender;
4. Solemnized by a religious leader who has no authority pursuant to Art. 7(2) of the
Family Code
5. However , under Art. 35(2), marriage is still valid even if solemnized by a person not
legally authorized to solemnize marriages, if either or both parties believed in good
faith that the solemnizing officer had the authority to do so.
VOID FOR ABSENCE OF VALID MARRIAGE LICENSE
1. Without a license except under Articles 27 to 34 of the Family Code;
2. With an expired license; and
3. Certification by the LCR that no license on record is found ( REP. vs. CA, 236 SCRA
257)
VOID FOR ABSENCE OF MARRIAGE CEREMONY
1. common-law marriages
2. marriage by proxy, where one or both parties are represented by other persons
What is a secret marriage?
There is no such thing. It is a legally non-existent phrase that applies to a civil marriage
celebrated without the knowledge of the friends and/or relatives of the spouses (Republic
vs. CA and Castro, 236 SCRA 257).
Effect of a Defect in any of the Essential Requisites of Marriage
e.g.
Getting married without parental consent
when parties are between 18-21 years old
and they have no parental consent
A defect in the consent of either party,
meaning it was obtained with vice of consent as provided under Articles 45 and 46
of the
Family Code
A defect in any of the essential requisites makes the marriage voidable, that is, valid
until annulled.
Irregularity in any formal requisite DOES NOT affect the validity of the marriage, but the
party responsible for the irregularity are CIVILLY, CRIMINALLY and ADMINISTRATIVELY
liable.

Examples of Irregularity in the formal requisites


1. Marriage license not applied for in the place specified under Art. 9
2. Marriage license signed by a person other than the civil registrar even when
authorized by him when the person so signing was not authorized, marriage is void for
lack of
marriage license
3. Issuance of the marriage license sans compliance with the 10-day posting
requirement
4. Lack of declaration by the parties before the
solemnizing officer that they take each
other as
husband and wife;
5. Lack of parental advice required under Article 15
of the Family Code; and
6. Absence of witnesses to the marriage
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage. (54a)
Art. 6. No prescribed form or religious rite for the solemnization of the marriage is
required. It shall be necessary, however, for the contracting parties to appear personally
before the solemnizing officer and declare in the presence of not less than two witnesses
of legal age that they take each other as husband and wife. This declaration shall be
contained in the marriage certificate which shall be signed by the contracting parties and
their witnesses and attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point of death is unable to
sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage
to write the name of said party, which fact shall be attested by the solemnizing officer.
(55a)
In this article, only the appearance of the parties is required before the solemnizing
officer, absence of which renders the marriage void.
The absence of the witnesses, or failure to declare by the parties before the solemnizing
officer that they take each other as husband and wife or the absence of marriage contract
will not render the marriage void.
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 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 case mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of
the latter, during a military operation, likewise only in the cases mentioned in Article 32;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)
Judges and justices have authority to solemnize marriage in areas within the jurisdiction
of their courts
Priests, rabbis and ministers are authorized to solemnize marriages if they are:
a. duly authorized by their church or
sect;
b. duly registered with the Office of the
Registrar General
The priest, rabbi or minister has the duty to show his authority to the parties if so
requested by them

This article amends Art. 92 of the Civil Code which requires registration with the director
of the proper government office ( Bureau of Public Libraries)
At least one of the contracting parties must be a member of the church or sect of the
solemnizing officer
Ship captains or airplane chiefs can solemnize marriage between passengers or crew
members only in articulo mortis.
May be solemnized even in ports or stopovers
Only the captain of the ship or the chief pilot of the plane is authorized under this article.
The military commander must be a commissioned officer of the unit.
The military unit must be a battalion.
He can solemnize marriage in articulo mortis in a zone of military operation whether the
parties are civilians or members of the armed forces and only in the absence of a military
chaplain.
Consuls general, consuls and vice-consuls can solemnize marriages under Art. 10 of the
Family Code but not when they are on home assignment in the Phils.
Mayors can solemnize marriages within their respective jurisdictions per Secs. 444 and
445 of the LGC
NAVARRO vs. JUDGE HERNANDO C. DOMAGTOY,
A.M. No. MTJ-96-1088 July 19, 1996
FACTS:
Complainant Mayor Rodolfo Navarro of Dapa, Surigao del Norte filed this case to the
Supreme Court against respondent Judge Hernando Domagtoy of MCTC of Monica-Burgos,
Surigao del Norte, for gross misconduct as well as inefficiency and ignorance of the law.
First, on Sept. 24, 1994, Judge Domagtoy solemnized the marriage of Gaspar Tagadan
and Arlyn Borja despite his knowledge that Tagadan was merely separated from his wife.
Second, he performed a marriage ceremony between Floriano Sumaylo and Gemma del
Rosarioin October 1994 at respondent judges residence in Dapa, SDN. As to the first,
Domagtoy contended that he merely relied on the affidavit issued by the RTC Judge of
Bassey, Samar,which stated that Tagadan and his wife have not seen each other for
almost seven years. However, the certified true copy of the marriage contract between
Tagadan and Borja showedthat his civil status was separated.
ISSUES:
1) Whether or not a court may solemnize
another marriage of a husband who was
merely separated from his wife for almost
seven years.
2) Whether or not a Judge may solemnize a
marriage at his residence.
HELD:
(1) Article 41 of the Family Code expressly provides that 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 two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph,
the spouse present must institute a summary
proceeding as provided in the Code for the declaration of presumptive death. Absent this
judicial declaration, he remains to be married to Pearanda. Wittingly or unwittingly, it

was manifest error on the part of respondent judge to have accepted the joint affidavit
submitted by Tagadan. Such neglect or ignorance of the law has resulted in a bigamous
and therefore void marriage.
2)
Art. 7. A marriage may be solemnized by
(1) any incumbent member of the judiciary within the courts jurisdiction
xxx . Article 8, however, states that marriages 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
contracted on the point of death or in remote places in accordance with
Art. 29 of the Family Code, or where both parties in which case the marriage may
be solemnized at a house or place designated by them in a
sworn statement to that effect.
There is no pretense that either Sumaylo or del Rosario was at the point of death or in a
remote place. Moreover, the written request presented addressed to the respondent judge
is the authority of the solemnizing officer. Under Art. 8, which is only a discretionary
provision, refers only to the venue of the marriage ceremony and does not alter or qualify
the authority of the solemnizing officer as provided in the preceding provision.
Non-compliance herewith will not invalidate the marriage. Judges who are appointed to
specific jurisdiction may officiate in marriages only within said areas and not
beyond. Where a judge solemnizes a marriage outside his courts jurisdiction, there is a
resultant irregularity in the formal requisite laid down in Article 3 which while it may not
affect the validity of the marriage, may subject the officiating official to administrative
liability.
Judge Domagtoy was suspended for six months for demonstrating gross ignorance of the
law.
ARAES vs. JUDGE SALVADOR M. OCCIANO
A.M. No. MTJ-02-1390 April 11, 2002
FACTS:
Mercedita Araes filed charges against Judge Salvador Occiano of the Municipal Circuit
Trial Court of Batalan, Camarines Sur with Gross Ignorance of Law. Occiano solemnized
Araes marriage without the requisite marriage license in latters house which is outside
judges jurisdiction. Araes was not able to claim her right to inherit his deceased
husbands property and she was deprived of receiving her husbands pension.

Occiano avers that the ceremony took place in Araes house because the groom had
a difficulty walking & he couldnt stand traveling. Judge was aware that there was no
marriage license but due to the pleas of the couple and everything was prepared
already and the visitors were there, he agreed to solemnize the marriage. He
reminded them that marriage wont be valid without the license. They promised to
give it within the day but they never did. Araes desisted but Court still decided the
case.
ISSUE:
Whether or not the marriage is valid.
HELD: No. Judge fined P5,000.00.
RATIO:
1. Judges can only solemnize marriage within their territorial jurisdiction.
2. Marriage license is a requisite for marriage and without it, marriage is void. It is
the marriage license that gives the solemnizing officer the authority to solemnize a

marriage. And since there was no license, Occiano didnt have the authority to
officiate the ceremony.
Article 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 the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in accordance with Article 29 of
this Code, or where both of the parties request the solemnizing officer in writing in
which case the marriage may be solemnized at a house or place designated by them
in a sworn statement to that effect. (57a)
(1) This provision is only directory, not mandatory, so that non-compliance therewith will
not invalidate the marriage.

(2). Can the marriage be solemnized by a judge on a Sunday, which is not an office
day? No, according to Gabriel V. Gabriel, CA., 56 O.G. 3555.

(3) The requirement of public solemnization of the marriage in this article is based on
the premise that the more people witness the marriage, more people can notify the
solemnizing officer if they know of any impediments to said marriage.
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 (58a)
This provision is useful in small communities where
the people know one another, because the names
of the applicants for marriage license are posted by
the local civil registrar under Art. 17, and any one
who knows of an impediment to an intended
marriage may inform him about it.
A violation of this provision will not, however invalidate the marriage license, but the party
who falsified his or her application for marriage license by stating that he or she is a resident
of the place where the license was applied for, is criminally liable.
The solemnizing officer is not required to investigate whether or not the license was issued in
the place required by law (People v. Jansen, 54 Phil. 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. (75a)
In these marriages, a marriage license is still required, to be issued by the consular official
who will solemnize the marriage.
The marriage must be between Filipino citizens abroad; if one of the parties is a foreigner, this
article cannot apply.
By Filipino citizens abroad may mean Filipinos permanently residing abroad or who are mere
transients or vacationists there.
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 twenty-one years.
The applicants, their parents or guardians shall not be required to exhibit their residence
certificates in any formality in connection with the securing of the marriage license. (59a)
The application for marriage license is required to be under oath so that the applicants would
tell the truth in their applications. If they lie regarding any detail therein, they will be
committing perjury.
The oath to the application shall be administered by the local civil registrar with whom the
application for license is filed.
The two parties to the intended marriage are required to file separate or individual sworn
applications because the data that they will state under oath are different.
Even if the parties falsify the information given in their marriage application, such as their
age, civil, status, absence of relationship with each other, etc., the marriage license will still be
valid if issued by the local civil registrar of the place where the application is filed, but the
party who gave wrong information would be civilly, criminally, and administratively liable.
If the local civil registrar, knowing the falsity of the information in the applications, still issues
the license, he shall be civilly, criminally, and administratively liable, but a marriage
solemnized pursuant to said license will still be valid.
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 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
yet been received though the same has been required of the person having custody thereof at
least fifteen days prior to the date of the application, such party may furnish in lieu thereof his
current residence certificate or an instrument drawn up and sworn to before the local civil
registrar concerned or any public official authorized to administer oaths.
Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting
forth the full name, residence and citizenship of such contracting party and of his or her
parents, if known, and the place and date of birth of such party. The nearest of kin of the
contracting parties shall be preferred as witnesses, or, in their default, persons of good
reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if the parents of the
contracting parties appear personally before the local civil registrar concerned and swear to
the correctness of the lawful age of said parties, as stated in the application, or when the local

civil registrar shall, by merely looking at the applicants upon their personally appearing before
him, be convinced that either or both of them have the required age. (60a)
The best proof of ones age is his birth certificate or, if the same is not available, his baptismal
certificate.
If the foregoing documents cannot be presented, the applicant may just present his current
residence certificate or the affidavit of two witnesses.
The parents of the parties may just accompany them to the office of the local civil registrar
and certify to their ages.
Makuha ka sa tingin!
The local civil registrar may, however, be satisfied as to the ages of the parties in proper cases
by just looking at them.
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 spouse. (61a)
If the death certificate of ones deceased spouse cannot be presented, an affidavit executed
by the applicant as to the facts of the death of his or her spouse would do.
If the applicant has had a marriage that had been annulled or declared null and void, or he
has been divorce under the old law.
Art. 14.
In case either or both of the contracting parties, not having been emancipated by a previous
marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the
requirements of the preceding articles, exhibit to the local civil registrar, the consent to their
marriage of their father, mother, surviving parent or guardian, or persons having legal charge
of them, in the order mentioned.
Such consent shall be manifested in writing by the interested party, who personally appears
before the proper local civil registrar, or in the form of an affidavit made in the presence of
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 applications.
If a marriage is solemnized without the parental consent required in this article, the marriage
is voidable.
Parental consent is required if the woman or a man is 18 and above but below 21 years of
age.
If the applicant had already been previously emancipated by a previous marriage, although
still below 21 years of age, he or she does not need parental consent.
The parental consent may be in the form of a sworn statement acknowledged in the presence
of two witnesses before any official authorized of two oaths, or the parents or guardian may
appear personally before the local civil registrar and accomplish the written consent before
him.

The parental consent must be for the child to marry a specific person; it cannot be consent
o marry anyone.
Art. 15.
Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask
their parents or guardian for advice upon the intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage license shall not be issued till after three months
following the completion of the publication of the application therefor. A sworn statement by
the contracting parties to the effect that such advice has been sought, together with the
written advice given, if any, shall be attached to the application for marriage license. Should
the parents or guardian refuse to give any advice, this fact shall be stated in the sworn
statement.
This Article amends Art. 62 of the Civil Code by requiring parental advice if the parties are 21
and above but below 25 years of age. The Family Code has made the requirement uniform for
both parties. Under the Civil Code, the requirement of parental advice applies to a male who
is 20 and above but below 25, and a female who is 18 and above but below 23.
The Family Code committee has decided to retain the requirement of parental advice in
keeping with Philippine tradition of honoring ones parents (filial respect) by seeking their
guidance or informing them about his or her intended marriage.
The lack of parental advice or an unfavorable parental advice does not bar the marriage from
taking place, but the requirement is a vehicle to induce further and more mature reflection by
the induce further and more mature reflection by the 3- month period that they are required
to wait before they are issued a license.
If the parties get married without a license, their marriage is void. If, however, they were able
to get a license without required parental advice. The marriage is still valid, but they will be
liable criminally and civilly for falsifying their application for marriage license.
Art. 16.
In the cases where parental consent or parental advice is needed, the party or parties
concerned shall, in addition to the requirements of the preceding articles, attach a certificate
issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this
Code or a marriage counselor duly accredited by the proper government agency to the effect
that the contracting parties have undergone marriage counseling. Failure to attach said
certificates of marriage counseling shall suspend the issuance of the marriage license for a
period of three months from the completion of the publication of the application. Issuance of
the marriage license within the prohibited period shall subject the issuing officer to
administrative sanctions but shall not affect the validity of the marriage.
Should only one of the contracting parties need parental consent or parental advice, the
other party must be present at the counseling referred to in the preceding paragraph
Marriage counseling is a new requirement for the issuance of a marriage license under the
Family Code in cases where the parties need parental consent or parental advice (i.e., they
are 18 and above but below 25 years).
The purpose of the requirement is to enable the parties to find out if they are compatible
before they get married. Psychological incapacity as defined in Art. 36 of the Code on the part
of either partly may also be discovered through marriage counseling.
Experience has shown that many marriages, especially teen-age marriage, have failed
because of the lack of pre-marital counseling to the parties.

While some members of the Committee believe that this requirement does not accord with the
customs of the Filipinos and may just be disregarded, the majority of the members think it is
requirement and should be included in the Family Code, since law should be an instrument of
change for the better.
The effect of the lack of the certificate or marriage counseling is the same as the lack of
parental advice; i.e., the issuance of the marriage of license is suspended for three months.
If only one of the parries needs parental consent or parental advice, the other party must be
present at the counseling.
Who will do the counseling?
The priest or minister of the church or religious sect to which the party concerned belongs, or
a marriage counselor accredited by the proper government agency.
Another requirement for the issuance of a marriage license is attendance of the family
planning seminar required by P.D. 965, with certain exceptions.
Art. 17.
The local civil registrar shall prepare a notice which shall contain the full names and
residences of the applicants for a marriage license and other data given in the applications.
The notice shall be posted for ten consecutive days on a bulletin board outside the office of
the local civil registrar located in a conspicuous place within the building and accessible to the
general public. This notice shall request all persons having knowledge of any impediment to
the marriage to advise the local civil registrar thereof. The marriage license shall be issued
after the completion of the period of publication.
(1) The posting of the application for marriage license under this Article is indispensable to the
issuance of the license.
If, however, a license is issued without complying with this provision and a marriage is
solemnized on the basis of such license, the marriage is still valid. However, the local civil
registrar who did not comply with this provision will be liable criminally, civilly and
administratively.
The reason for the required posting of the application for marriage license is to inform the
public of the intended marriage so that if they know of any legal impediment thereto, they
may inform the local civil register about it.
While such requirement may be of no practical value in big cities and communities, it is very
useful in small towns and municipalities where practically everybody knows every one else.
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
interest party. No filing fee shall be charged for the petition nor a corresponding bond required
for the issuances of the order.
Under Art. 64 of the Civil Code, the local civil registrar is given quasi-judicial authority to
investigate any information he receives of any legal impediment to an intended marriage, and
may withhold the issuance of the marriage license if he is convinced that such impediment
exists, unless otherwise ordered by a competent court.
The Family Code has amended the above article of the Civil Code in that the local civil
registrar, who most often has no legal knowledge, is no longer given quasi-judicial power to
investigate an alleged legal impediment to an intended marriage.

What he is required to do, if he receives information as to alleged impediment, is to note it on


the application for marriage license and then refer the matter to the competent court if he
thinks such action is warranted. But he should still issue the marriage license , unless ordered
by a competent court at the instance of an interested party or even at his own instance.
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.
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
the 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.
The marriage license may be used anywhere in the Philippines but not in foreign countries.
The license is good for only 120 days. It is not subject to extension and once it has expired, it
is deemed cancelled and cannot be used anymore. If the parties still want to get married after
the expiration of the license, they must apply for a new license.
The Family Code requires that the expiry date of the license must be stamped in bold
characters in its face, so that the parties will be fully aware of its expiration date.
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.
The capacity of a foreigner to get married in he Philippines is governed by his national law, a
foreign law, so that our government offices and courts cannot take judicial notice of said law.
Hence, if the applies for a marriage license to be able to get married in the Philippines, he is
required to present a certificate of legal capacity to contract marriage from the embassy or
consular office of his country in the Philippines, since they are the ones who know the national
law of said foreigner and whether he has capacity to marry under said law.
A divorced foreigner can be issued a marriage license to marry again in the Philippines
provided he can present the certificate above mentioned, which means that his divorce is
recognized by his own country.
If the foreigner is stateless or a refugee from another country, so that there is no embassy or
consular office from which he can get the above-mentioned certificate, it is enough that he
executes an affidavit stating the circumstances showing his capacity to contract marriage.
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 marriage

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 settlement, if any, attaching a copy thereof.
Under Art. 67 of the Civil Code, the parties are required to state in their marriage certificate
or contract their full names, domiciles, and ages; the fact that they have been issued the
proper marriage license; and that they have the consent or advice of their parents in the
cases where these are required.
This Article of the Family Code, however, requires the marriage certificate to state the
following additional information:
(a) The sex, citizenship, and religion of each party;
(b) The date and precise time of the celebration of
the marriage; and
(c) A statement that the parties have entered into a
marriage settlement, if any, attaching a copy
thereof to the marriage certificate.
Madridejo v De Leon, 55 Phil. 1
The marriage certificate is not an essential or formal requisite of marriage such that without
which, the marriage will be void .
De Loria v Felix, 104 Phil.;
Pugeda v, Trias, Mar.31, 1962, 4 SCRA 49
An oral marriage is, therefore, valid, and failure of a party to sign the marriage certificate or
the omission of the solemnizing officer to send a copy of the marriage certificate to the proper
local civil registrar does not invalidate the marriage.
Mariatequi v C.A., 205 SCRA 337
The mere fact that no record of the marriage can be found , does not invalidate the marriage
provided all the requisites for its validity are present.
The marriage certificate is, however the best evidence that a marriage does exist.
Art. 23.
It shall be the duty of the person solemnizing the marriage to furnish either of the contracting
parties the original of the marriage certificate referred to in Article 6 and to send the duplicate
and triplicate copies of the certificate not later than fifteen days after the marriage, to the
local civil registrar of the place where the marriage was solemnized. Proper 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 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 place other than those mentioned in Article 8.
While Art. 68 of the Civil Code requires that the marriage certificate should be in three copies,
this Article requires that the certificate should be in four copies, to be distributed as follows:
(1) The original shall be given to either of the
contracting parties;
(2) The duplicate and triplicate shall be sent not later than 15 days after the marriage to the
local civil registrar of the place where the marriage was solemnized; and

(3) The quadruplicate shall be retained by the solemnizing officer, together with the marriage
license.
Jones v. Hortiguela, 64 Phil. 179
Even if no one receives a copy of the marriage certificate, the marriage is still valid.
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.
This Article requires all applications for marriage license to be entered in the registry book
strictly in the order in which they are received, that is, chronologically or in accordance with
the dates of application.
This means, too, that the applications. Should be duly numbered, to avoid the bad practice in
offices of the local civil registrars of leaving certain numbers in the registry book of
applications for marriage license blank, and then selling these blanks spaces to couples who
want instant licenses (i.e., without complying with the 10-day posting) by antedating the
dates of their applications for marriage license.
The registry book above-mentioned should also record the names of the applicants, the date
on which the marriage license was issued, and other necessary data.
Art. 26.
All marriages solemnized outside the Philippines, in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce
is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by
Executive Order 227)
Foreign Marriages of Filipinos:
this Article retains the rule in Art. 71 of the Civil Code that marriage solemnized abroad, if
valid in the country where celebrated, are also valid in the Philippines (the rule of lex loci
celebrationis).
The same Article, however, amends Art. 71 of the Civil Code as to the exceptions to the rule of
lex loci celebrationis.
While Art. 71 of the Civil Code excepts therefrom only bigamous, polygamous, and incestuous
marriage as determined by Philippines law, the above Article excepts all those void under
Articles 35 (1), (4), (5), and (6), 36, 37, 38, and applies the rule of lex loci celebrationis only
to foreign marriages solemnized in accordance with the formal requirements of the countries
where they were celebrated but otherwise valid under the Family Code.
Therefore, a foreign marriage, although valid in the country of celebration, will still be void in
the Philippines if:
1. Either or both parties did not have the legal
capacity to get married (Art. 35 (1)
2. The marriage is immoral for being bigamous or polygamous (Art. 35 (4).

3. Consent of one party is lacking because of mistake as to the identity of the other (Art. 35
(5).
4. One of the parties was psychologically incapacitated at the time of the marriage to
comply with the essential marital obligations
(Art. 36);
5. The marriage is incestuous (Art. 37);
6. The marriage is void by reason of public policy
(Art. 38.)
Art. 26 on the validity of foreign marriages applies only to Filipinos.
2nd paragraph of Art. 26 applies where a Filipino is married to a foreigner and thereafter, the
latter obtained a divorce abroad which decree capacitates the foreigner to remarry
The effect would be that the Filipino spouse shall likewise be capacitated to remarry under
Philippine law.
The second paragraph provision was not a part of the draft originally approved by the Code
committee , but came after President Aquino issued E.O. 227
The idea of including the second paragraph is to avoid the absurd situation of a Filipino as
being still unmarried to his/her foreigner spouse, although the latter in no longer married to
him/her by reason of the decree of divorce obtained abroad.
The 2nd paragraph of Art. 26 does not apply to a divorce obtained by a Filipino abroad from
his Filipino spouse because of Art. 15 of the Civil Code.
Pilapil vs. Ibay-Somera, 174 SCRA 553
Facts:
Imelda M. Pilapil, a Filipino citizen, was married with private respondent, Erich Ekkehard
Geiling, a German national before the Registrar of Births, Marriages and Deaths at
Friedensweiler, Federal Republic of Germany. They had a common child. Private respondent
initiated a divorce proceeding against petitioner in Germany before the Schoneberg Local
Court in January 1983. Petitioner then filed an action for legal separation, support and
separation of property before the RTC of Manila on January 23, 1983.
The decree of divorce was promulgated on January 15, 1986 on the ground of failure of
marriage of the spouses. The custody of the child was granted to the petitioner.
On June 27, 1986, private respondent filed 2 complaints for adultery before the City Fiscal of
Manila alleging that while still married to Imelda, latter had an affair with William Chia as
early as 1982 and another man named Jesus Chua sometime in 1983.
ISSUE:
Whether private respondent can prosecute petitioner on the ground of adultery even though
they are no longer husband and wife as decree of divorce was already issued.
HELD: NO.
RATIO:
In prosecution for adultery and concubinage, the person who can legally file the complaint
should be the offended spouse and nobody else. Though in this case, it appeared that private
respondent is the offended spouse, the latter obtained a valid divorce in his country, the
Federal Republic of Germany, and said divorce and its legal effects may be recognized in the
Philippines in so far as he is concerned. Thus, under the same consideration and rationale,
private respondent is no longer the husband of petitioner and has no legal standing to
commence the adultery case under the imposture that he was the offended spouse at the
time he filed suit.
Van Dorn vs. Romillo
G.R. No. L-68470 October 8, 1985/139 SCRA 139
FACTS:

Alice Reyes Van Dorn, a Filipino Citizen and private respondent, Richard Upton, a US citizen,
were married in Hong Kong in 1979. They established their residence in the Philippines and
had 2 children. They were divorced in Nevada, USA in 1982 and petitioner remarried, this
time with Theodore Van Dorn. A suit against petitioner was filed on June 8, 1983, stating that
petitioners business in Ermita Manila, the Galleon Shop, is a conjugal property with Upton and
prayed therein that Alice be ordered to render an accounting of the business and he be
declared as the administrator of the said property.

Our courts can determine the legal effects of a divorce obtained from a foreign country such
as those concerning with support and custody of the children.

ISSUE:
Whether or not the foreign divorce between the petitioner and private respondent in Nevada is
binding in the Philippines where petitioner is a Filipino citizen.
HELD: YES
RATIO:
Private respondent is no longer the husband of the petitioner. He would have no standing to
sue petitioner to exercise control over conjugal assets.
He is estopped by his own representation before the court from asserting his right over the
alleged conjugal property.
Aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they
are valid according to their national law.
Petitioner is not bound to her marital obligations to respondent by virtue of her nationality
laws. She should not be discriminated against her own country if the end of justice is to be
served.
ROEHR vs. RODRIGUEZ and GUEVARA-SALONGA, G.R. No. 142820 June 20, 2003

The trial court has jurisdiction over the issue between the parties as to who has parental
custody, including the care, support and education of the children.
Republic vs. Orbecido
GR NO. 154380, October 5, 2005

FACTS:
Petitioner Wolfgang, a German citizen and resident of Germany, married private respondent
Carmen, a Filipina, on 11 December 1980 in Hamburg, Germany. Early 1981, the marriage
was ratified in Tayasan, Negros Oriental. They had two daughters, Carolyne and Alexandria
Kristine.
Private respondent filed a petition for the declaration of nullity of marriage before the Regional
Trial Court of Makati on 28 August 1996. Petitioner filed a motion to dismiss but was denied
by trial court. A motion for reconsideration was filed by private respondent but was again
denied by the trial court.
I997 - petitioner obtained a decree of divorce from the Court of First Instance of HamburgBlankenese and granting the custody of the children to the father.
June 14, 1999 - public respondent granted the petitioners motion to dismiss, but was partially
set aside on September 1999 for the purpose of tackling issues regarding property relations of
the spouses as well as support and custody of their children.
Petitioner assailed the order of the trial courts for lack of jurisdiction, and grave abuse of
discretion on the part of the respondent judge.
Issue:
Whether or not the Philippine courts can determine the legal effects of a decree of divorce
from a foreign country.
Held: YES
RATIO:

In this case, the decree did not touch as to who the offending spouse was. The trial court was
correct in setting the issue for hearing to determine the issue of parental custody, care,
support and education of the best interests of the children. After all, the childs welfare is
always the paramount consideration in all questions concerning his care and custody.

FACTS:
Cipriano Orbecido III was married with Lady Myros Villanueva on May 24, 1981 at the United
Church of Christ in the Philippines in Ozamis City. They had a son and a daughter named
Kristoffer and Kimberly, respectively. In 1986, the wife left for US bringing along their son
Kristoffer. A few years later, Orbecido discovered that his wife had been naturalized as an
American citizen and learned from his son that his wife sometime in 2000 had obtained a
divorce decree and married a certain Stanley. He thereafter filed with the trial court a petition
for authority to remarry invoking Paragraph 2 of Article 26 of the Family Code.
ISSUE:
Whether or not Orbecido can remarry under Article 26 of the Family Code.
HELD: YES
RATIO:
Taking into consideration the legislative intent and applying the rule of reason, Article 26 Par.2
should be interpreted to include cases involving parties who, at the time of the celebration of
the marriage were Filipino citizens, but later on, one of them becomes naturalized as a foreign
citizen and obtains a divorce decree. The Filipino spouse should likewise be allowed to
remarry as if the other party were a foreigner at the time of the solemnization of the
marriage.
Through a petition for the recognition of a decree of divorce obtained abroad, the Filipino
spouse however has to show sufficient evidence that the former spouse had obtained a
divorce decree which allowed the latter to remarry.
Corpuz vs. Tirol Sto. Tomas
G.R. No. 186571, 11 August 2010
FACTS:
Gerbert R. Corpuz is a naturalized Canadian citizen who married respondent Daisylyn Tirol
Sto. Tomas but subsequently left for Canada for work. When he returned to the Philippines, he
discovered that Sto. Tomas was already romantically involved with another man.
Corpuz later obtained a divorce decree in Windsor, Ontario, Canada. Corpuz has fallen in love
again with another Filipina and wished to marry her. He went to the Civil Registry Office of
Pasig City to register the Canadian divorce decree on his marriage
certificate with Sto. Tomas.

Despite the registration, an official of National Statistics Office informed Corpuz that the
former marriage still subsists
under the Philippine law until there has been a judicial recognition of the Canadian divorce
decree by a competent judicial court in view of NSO Circular No. 4, series of 1982.
Corpuz then filed a petition for judicial recognition
of foreign divorce and/or declaration of dissolution of marriage with the RTC.
However, the RTC denied the petition reasoning out that Corpuz cannot institute the action for
judicial recognition of the foreign divorce decree because he is a naturalized Canadian citizen.
It was provided further that Sto. Tomas was the proper party who can institute an action
under the principle of Article 26 of the Family Code which capacitates a Filipino citizen to
remarry in case the alien spouse obtains a foreign divorce decree. Hence, this petition.
ISSUE:
Whether or not the second paragraph of Article 26 of the Family Code grants aliens like
Corpuz the right to institute a petition for judicial recognition of a foreign divorce decree.
The alien spouse can claim no right under the second paragraph of Article 26 of the Family
Code as the substantive right it establishes is in favor of the Filipino spouse.
The foreign divorce decree is presumptive evidence of a right that clothes the party with legal
interest to petition for its recognition in this jurisdiction.
The recognition of the foreign divorce decree may be made in a Rule 108 proceeding, as the
object of special proceedings (such as that in Rule 108 - Cancellation or Correction of Entries
in the Civil Registry) is precisely to establish the status or right of a party or a particular fact.
Art. 27.
In case either or both of the contracting parties are at the point of death, the marriage may
be solemnized without necessity of a marriage license and shall remain valid even if the ailing
party subsequently survives.
The marriage referred to in the Article is the marriage in articulo mortis; i.e., one or both of
the contracting parties are dying or at the point of death.
In such case, there is no need for a marriage license because obviously, the dying party would
already be dead by the time the license is issued.
What happens if the dying party survives or recovers?
Art. 72 of the Civil Code, which is the source of this Article, does not provide for such a
situation. The above Article, however, expressly provides that the marriage remains valid even
if the ailing or dying party survives or does not die.
The marriage in this case may be solemnized by a priest or a minister of any religious sect, a
judge, or any of the persons referred to in Arts. 21 and 32 in the special cases covered by
said by said Articles.
At the point of death must be distinguished from in danger of death.
A member of the army who takes part in a military operation against NPAs or the Muslim
insurgents may be in danger of death but not at the point of death.
Art. 28.
If the residence of either party is so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar, the marriage may be
solemnized without necessity of a marriage license.
This Article covers marriages in remote or distant places formerly governed by Art. 72 of the
Civil Code.
Art.72 of the Civil Code has, however, been amended by this Article as follows:
(1) While Art.72 of the Civil Code applies only if the female resides more than 15 kilometers

from the municipal building, the above Article applies whether it is the male or female who
lives in a remote or distant place.
(2) The above articles does not specify the distance of the residence of either party from the
municipal building. All that is required is that the residence of either party be so located that
there is no means of transportation to enable such party to appear before the local civil
register.
The above Article provides that there must be no means of transportation to enable party to
personally go to the office of the local civil registrar, which is usually in the municipal building.
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 legal impediment to the marriage.
Art. 30.
The original of the affidavit required in the last preceding article, together with the legible
copy of the marriage contract, shall be sent by the person solemnizing the marriage to the
local civil registrar of the municipality where it was performed within the period of thirty days
after the performance of the marriage. The affidavit of the solemnizing officer required by this
Article takes the place of the marriage license and constitutes an assurance that the
parties are of the proper ages and hat there is no impediment to their marriage.
Loria vs. Felix
104 Phil. 1, June 20, 1958,
But lack of this affidavit does not invalidate the marriage in articulo mortis .
Cruz vs. Catandes
CA, 39 O.G. No. 18, p. 324
No particular from of the marriage in articulo mortis is required. The law as much as possible
intends to give legal effect to the marriage. The failure of the solemnizing officer to comply
with this requirement will also not invalidate 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 plane 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 operation, 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 they are solemnized

in accordance with their customs, rites or practices.


The similar provision of the Civil Code (Art. 78 thereof) requires that the Muslims or pagans
should live in non Christian provinces before that provision could
apply. But this Article eliminates such requirement in order not to limit the application of the
provision . In other words, as long as the parties are Muslims or members of other cultural
minorities, their marriages are exempt from the requirement of a marriage license
if performed in accordance with their customs or practices even if such marriages are held
outside non Christian provinces.
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 are found no legal impediment to
the marriage.
Requisites for Application of Article:
1. The man and woman must have been living together as husband and wife for at least
five years before the marriage;
2. The parties must have no legal impediment to marry each other (for example, they
are not first cousins).
3. The fact of absence of legal impediment between the parties must be present at the
time of the marriage, not during their 5-year cohabitation.
4. (4)The parties must execute an affidavit stating that they have lived together for at
least 5 years.
5. (5)The solemnizing officer must also execute a sworn statement that he head
ascertained the qualifications of the parties and that he had found no legal
impediment to their marriage.
ENGRACE NIAL vs. NORMA BAYADOG
G.R. No. 133778, March 14, 2000
Facts:
Pepito Nial and Teodulfa Bellones were married on September 26, 1974 and such union bore
some children. Teodulfa died on April 24, 1985, after being shot by Pepito. On December 11,
1986, Pepito and respondent Norma Bayadog were married without any marriage license. In
lieu thereof, they executed an affidavit that they had lived together as husband and wife for at
least five years and were thus exempted from securing a marriage license. On February 19,
1997, Pepito died in a car accident. After His death, his heirs (herein petitioners) filed a
declaration to declare the nullity of his marriage to Norma, alleging that the said married was
void for lack of a marriage license. Norma filed an action to dismiss, stating that petitioners
were not among those who could file an action for annulment of marriage under the Family
Code. Judge Ferdinand Marcos of the RTC in Toledo dismissed the petition after finding that
the Family Code was rather silent on resolving the issues in the case.
Issue:
1. Is the marriage of Pepito to Norma null and void?
2. May the heirs of a deceased person file a petition for the declaration of nullity of his
marriage after his death?
Held:
1. Is the marriage of Pepito to Norma null and void?
YES, a valid marriage license is a requisite of marriage, the absence of which renders
the marriage void ab initio.

Such requirement stems from the State's involvement and participation in every
marriage, the maintenance of which the public is interested.
Such interest proceeds from the "constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to the family as a basic `autonomous social
institution'
It is true that Norma and Pepito were married without a license, working on the assumption
that they had been living together for at least five years without benefit of a marriage.
However, this 5-year period should be considered as the years immediately before the
day of the marriage and it should be a period of cohabitation characterized by exclusivity -meaning that there is no third party involved at any time within the 5 years -- and continuity
-- that is unbroken.
Otherwise, if such period were computed regardless of whether the parties were
capacitated to marry each other or not, then the law would be sanctioning immorality and
encouraging parties to have common-law relationships and placing them on the same footing
as those who lived faithfully with their spouse.
Only 20 months had elapsed between the time Pepito's first marriage was dissolved
and his marriage to Norma.
2. May the heirs of a deceased person file a petition for the declaration of nullity of his
marriage after his death?
YES.
RATIO:
The children have the personality to file thepetition to declare the nullity of the marriage of
their deceased father to their stepmother as it affects their successional rights.
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of
parents or guardians;
(2) Those solemnized by any person not legally authorized to perform marriages unless such
marriages were contracted with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the other;
and
(6) Those subsequent marriages that are void under Article 53.
Contract by Parties Below 18 Years:
(1) The marriage is void even if the parties had parental consent because the essential
requisite of legal capacity of the contracting parties (Art. 2 (1)) is lacking.
(2) The marriage is void whether only one or both of the parties are below 18.
Solemnized by Person with No Authority:
The marriage is, however, valid if either or both contracting parties had believed in good faith
that the solemnizing officer had legal authority.
(a) The belief of one party would suffice.
(b) God faith means after reasonable inquiry and investigation.
Art. 36.
A marriage contracted by any party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage, shall likewise
be void even if such incapacity becomes manifest only after its solemnization. (As

amended by Executive Order 227)


Provision is New and Taken from Canon Law:This is a new provision which was taken by the
Committee from par. 3 of Can. 1095 of the New Code of Canon Law which took effect on
November 27, 1983,
Can. 1095. The following are incapable of contracting marriage:
1. Those who lack sufficient use of reason;
2. Those who suffer from a grave lack of discretionary judgment concerning the essential
matrimonial rights and obligations to be mutually given and accepted;
3. Those who, because of causes of a psychological nature, are unable to assume the
essential obligations of marriage.
The Committee decided to adopt the third paragraph of the above provision of the New
Code of Canon Law as a ground for declaration of nullity of marriage for the following reasons:
(1) As a substitute for divorce: Divorce being a very controversial and would surely be
strongly opposed by the Catholic Church, it was decided to draw from Canon Law itself on a
ground that does not conflict with the traditional civil law concept of voidable marriages.
2) As a solution to the problem of Church-annulled marriages: There are many marriages
that have already been annulled by the Catholic Church but still exist under the civil law. This
provision would give many parties to church annulled marriages a cause of action to have
their marriages declared void by the civil courts.
(3) As an additional remedy. The provision would also give a remedy to parties who are
imprisoned by a marriage that exists in name only as they have long separated because of the
inability of one of them to perform the essential obligations of marriage.
SANTOS vs. CA
G.R. No. 112019 January 4, 1995
Psychological incapacity should refer to no less than a mental (norphysical) incapacity and
that (t)here 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.
The psychological incapacity must be characterized by
1. Gravity
2. juridical antecedence
3. incurability.
Republic vs. CA and Molina
G.R. No. 108763 February 13, 1997
FACTS:
The case challenges the decision of CA affirming the marriage of the respondent Roridel
Molina to Reynaldo Molina void in the ground of psychological incapacity. The couple got
married in 1985, after a year, Reynaldo manifested signs of immaturity and irresponsibility
both as husband and a father preferring to spend more time with friends whom he

squandered his money, depends on his parents for aid and assistance and was never honest
with his wife in regard to their finances. In 1986, the couple had an intense quarrel and as a
result their relationship was estranged. Roridel quit her work and went to live with her
parents in Baguio City in 1987 and a few weeks later, Reynaldo left her and their child. Since
then he abandoned them.
ISSUE:
Whether or not the marriage is void on the ground of psychological incapacity.
HELD:
The marriage subsists and remains valid.
What constitutes psychological incapacity is not mere showing of irreconcilable differences
and confliction personalities
It is indispensable that the parties must exhibit inclinations which would not meet the
essential marital responsibilities and duties due to some psychological illness.
Reynaldos action at the time of the marriage did not manifest such characteristics
that would comprise grounds for psychological incapacity.
The evidence shown by Roridel merely showed that she and her husband cannot get
along with each other and had not shown gravity of the problem neither its juridical
antecedence nor its incurability.
In addition, the expert testimony by Dr. Sison showed no incurable psychiatric
disorder but only incompatibility which is not considered as psychological incapacity.
Republic vs. CA and Molina, supra
The following are the guidelines as to the grounds of psychological incapacity laid set forth
in this case:
burden of proof to show nullity belongs to the plaintiff
root cause of the psychological incapacity must be (a) medically or clinically identified,
(b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly
explained in the decision.
incapacity must be proven to be existing at "the time of the celebration" of the
marriage. The evidence must show that the illness was existing when the parties
exchanged their "I do's." The manifestation of the illness need not be perceivable at
such time, but the illness itself must have attached at such moment, or prior thereto
incapacity must also be shown to be medically or clinically permanent or incurable.
Such incurability may be absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations.
Such illness must be grave enough to bring about the disability of the party to assume
the essential obligations of marriage.
The essential marital obligations must be those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and wife as well as Articles 220, 221 and 225
of the same Code in regard to parents and their children. Such non-complied marital
obligation(s) must also be stated in the petition, proven by evidence and included in
the text of the decision.
Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great
respect by our courts. It is clear that Article 36 was taken by the Family Code Revision
Committee from Canon 1095 of the New Code of Canon Law, which became effective
in 1983 and which provides:

The following are incapable of contracting


marriage: Those who are unable to
assume
the essential obligations of marriage due to
causes of psychological nature.
The trial court must order the prosecuting attorney or fiscal and the Solicitor General
to appear as counsel for the state.
-No decision shall he handed down unless
the Solicitor General issues a
certification,
which will be quoted in the decision, briefly
staring therein his
reasons for his agreement or opposition, as the case may be, to the
petition. The
Solicitor General, along with the
prosecuting attorney, shall submit to the
court such certification within fifteen
(15)
days from the date the case is deemed
submitted for resolution of the
court.
TE vs.YU-TE
G.R. No. 161793 , February 13, 2009
FACTS:
Kenneth met Rowena in a Filipino-Chinese gathering on campus. They did not have
interest with each other at first but they developed a certain degree of closeness due to
the fact that they share the same angst with their families. In 1996, while still in college,
Rowena proposed that they should elope. Kenneth initially refused on the ground that he
is young and jobless but due to Rowenas persistence Kenneth complied bringing with him
P80K.
The money soon after disappeared and they found themselves forced to return to their
respective home. Subsequently, Rowenas uncle brought the two before a court and had
had them be married. After marriage, Kenneth and Rowena stayed with her uncles house
where Kenneth was treated like a prisoner.
Kenneth was advised by his dad to come home otherwise he will be disinherited. One
month later, Kenneth was able to escape and he was hidden from Rowenas family.
Kenneth later contacted Rowena urging her to live with his parents instead.
Rowena however suggested that he should get his inheritance so that they could live
together separately or just stay with her uncle. Kenneth however was already disinherited.
Upon knowing this, Rowena said that it is better if they live separate lives from then on.
Four years later, Kenneth filed for an annulment of their marriage. Rowena did not file an
answer.
The City Prosecutor, after investigation, submitted that he cannot determine if there is
collusion between the 2 parties hence the need to try the merits of the case. The opinion
of an expert was sought wherein the psychologist subsequently ruled that both parties are
psychologically incapacitated.
The said relationship between Kenneth and Rowena is said to be undoubtedly in the wreck
and weakly-founded. The break-up was caused by both parties unreadiness to
commitment and their young age. He was still in the state of finding his fate and fighting
boredom, while she was still egocentrically involved with herself. The trial court ruled that
the marriage is void upon the ruling of the expert psychologist.
The break-up was caused by both parties unreadiness to commitment and their young
age. He was still in the state of finding his fate and fighting boredom, while she was still
egocentrically involved with herself. The trial court ruled that the marriage is void upon
the ruling of the expert psychologist.
The OSG appealed and the CA ruled in favor of the OSG. The OSG claimed that the
psychological incapacity of both parties was not shown to be medically or clinically
permanent or incurable (Molina case). The clinical psychologist did not personally
examine respondent, and relied only on the information provided by petitioner. Further,
the psychological incapacity was not shown to be attended by gravity, juridical

antecedence and incurability. All these were requirements set forth in the Molina case to
be followed as guidelines.
ISSUE:
Whether or not the expert opinion of the psychologist should be admitted in lieu of the
guidelines established in the case of Molina.
HELD: NO
RATIO:
The MOLINA ruling is not cast in stone. SC may have inappropriately imposed a set of
rigid rules in ascertaining PI. So much so that the subsequent cases after Molina were
ruled accordingly to the doctrine set therein.
And that there is not much regard for the laws clear intention that each case is to be
treated differently, as courts should interpret the provision on a case-to-case basis;
guided by experience, the findings of experts and researchers in psychological disciplines,
and by decisions of church tribunals. The SC however is not abandoning the Molina
guidelines, the SC merely reemphasized that there is need to emphasize other
perspectives as well which should govern the disposition of petitions for declaration of
nullity under Article 36 such as in the case at bar.
The principle that each case must be judged, not on the basis of a priori assumptions,
predilections or generalizations but according to its own facts. And, to repeat for
emphasis, courts should interpret the provision on a case-to-case basis; guided by
experience, the findings of experts and researchers in psychological disciplines, and by
decisions of church tribunals.
The SC then ruled that the marriage of Kenneth and Rowena is null and void due to
both parties psychological disorder as evidenced by the finding of the expert
psychologist. Both parties being afflicted with grave, severe and incurable
psychological incapacity.
Kenneth cannot assume the essential marital obligations of living together, observing
love, respect and fidelity and rendering help and support, for he is unable to make
everyday decisions without advice from others. He is too dependent on others.
Rowena cannot perform the essential marital obligations as well due to her intolerance
and impulsiveness.
If the doctor recommends therapy, is PI curable?
MA. SOCORRO CAMACHO-REYES vs. RAMON REYES
G.R. No. 185286
August 18, 2010
FACTS:
Parties got married. Their marriage was rocky because Respondent did not support his
wife, nor did he take good care of his children. He entered into a lot of business
ventures but all were unsuccessful adding to the problems in their marriage. Petitioner
sought to have the marriage annulled on the ground of psychological incapacity
(Article 36).
RTC ruled that there was Psychological Incapacity.
Marriage was declared a nullity. CA reversed the RTC decision on the ground that
expert witness recommendation that respondent should undergo therapy.
ISSUE:
WON a finding that Psychological Incapacity is curable will not warrant a petition for
annulment of marriage under Art. 36
HELD:NO
RATIO:

A recommendation for therapy does not automatically imply curability. In


general, recommendations for therapy are given by clinical psychologists, or
even psychiatrists, to manage behavior. Dr.s recommendation that respondent should
undergo therapy does not necessarily negate the finding that respondents psychological
incapacity is incurable. Moreover, the doctor, during her testimony, categorically declared
that respondent is psychologically incapacitated to perform the essential marital
obligations.
Case of Pathological Liar
ANTONIO V. REYES
G.R. No. 155800
March 10, 2006
FACTS:
Leonilo Antonio was married to Marie Yvonne Reyes on Dec 6, 1990. They had a child who
died 5 months later. Reyes concealed the fact that she previously had an illegitimate son
introducing the boy as an adopted child of the family.
She fabricated a story that her brother-in-law attempted to rape and kill her. She
misrepresented herself as a psychiatrist. She claimed to be a successful singer when no
member of her family witnessed her alleged singing activities. She invented friends from
the music industry who wrote letters to Antonio touting her as the number one
moneymaker.
Antonio later found out that she was the one who actually wrote and sent the letters. She
altered her pay slip to represent herself as one of greater means. She exhibited
insecurities and jealousies over Antonio to the extent of calling his officemates to monitor
his whereabouts.
On Mar 8, 1993, Antonio filed a petition to have their marriage declared null and void
and presented two expert witnesses who concluded that her persistent lying and paranoia
made her psychologically incapacitated to perform her marriage obligations. While the
case was pending, on Mar 30, 1995, the marriage of the parties was annulled by
the Catholic Church. RTC granted the petition; the CA reversed it.
ISSUE:
Whether or not Marie Yvonne Reyes was psychologically incapacitated.
HELD:
YES. Petition granted. Marriage VOID.

Hence, there was no legal impelling cause to prove incurability during trial. In this case,
the Supreme Court is convinced by the totality of the evidence that Reyes psychological
incapacity is incurable.
Art. 37. Incestuous and void marriages from the beginning, whether relationship between
the parties be legitimate or illegitimate:

RATIO:
1. A person unable to distinguish between fantasy and reality would similarly be unable to
comprehend the legal nature of the marital bond and the corresponding obligations
attached to marriage.
2. Present case sufficiently satisfies guidelines in MOLINA (REP. V. CA)
Psychological incapacity was sufficiently proven by expert witnesses & root cause
has been medically identified. It clearly existed at the time of and even before the
marriage. Its gravity is sufficient to prove her disability to assume the essential
obligations of marriage based on love, trust and respect.
3.MOLINA
(1997) is not set in stone and interpretation of Art 36 FC relies heavily on a case-to-case
perception. Clinical diagnosis of incurability was not yet required when expert witnesses
testified in 1994-95.
SANTOS V. CA
Promulgated by the SC in Jan1995, in its doctrinal rule omitted any reference to
incurability as a characteristic of psychological incapacity.

(4) Between the adopting parent and the adopted child;

(1) Between ascendants and descendants of any degree; and


(2) Between brothers and sisters, whether of the full or half blood.
This Article amends Art. 81 of the Civil Code by considering as incestuous and void only
marriages between
(1) ascendants and descendants of any degree, and
(2) brothers and sisters, whether the relationship of the parties is legitimate or
illegitimate, since what is important is that the parties are close relatives by blood.
Under Art. 81 of the Civil Code, incestuous relatives by blood within the fourth civil
degree. The above Article does not consider such marriages incestuous (following the
trend in other countries wherein incestuous marriages extend only to those between
brothers and sisters), but they are still considered void by reason of public-policy under
Art. 38.
Incestuous marriages are universally or almost universally considered immoral (contra
bonos mores) and void as they contravene human nature, degrade the family, and offend
decency and morals.
Art. 38.
marriages that are 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;

(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse.
The above Article of the Family Code amends Arts. 80, pars. (6) and (7), and 82 of the
Civil Code:
(1) by eliminating altogether the prohibition for stepbrothers and stepsisters to marry
(Art. 80 (7) of the Civil Code), since they are not related either by blood or by affinity;

(2) by transferring marriages under Art. 80 (6) of the Civil Code (those where one or both
contracting parties have been found guilty of the killing of the spouse of either of them) to
par. (9) of the above Article 38; and
(3) by adding to the list of void marriages by reasons of public policy of the following:
(a) marriages between collateral blood relatives, whether legitimate or illegitimate, up to
the fourth civil degree (art.38 (1));
(b) marriages between parents-in-law and children-in-law (Art. 38 (3)); and
(c) When there is a grandchild, there is a confusion in a relationship between the child of
the father-in-law and that of the formers son, as the children have the same mother.
(That is why in American law, the prohibition arises only when there are grandchildren.)
(d) It is a family tradition in the Philippines that parents live with their children, unlike in
the U.S. where parents usually do not live with their
children.
(3)_ Marriages between adopting parent and adopted child, between the latter and the
surviving spouse of the former, and between the former and the surviving spouse of the
latter.
These marriages are against public policy because adoption creates the relationship
of parent and child be legal fiction, so that the reasons prohibiting a parent from marrying
a child, and a parent-in-law from marrying a child-in-law, will apply.
(4) Marriages between the legitimate child of the adopter and an adopted child:
The reason is again because adoption results in the legitimate child of the adopted and
the adopted childe becoming brother and sister by legal fiction. Besides, these children
usually grown up together under the same roof and in the same roof and in the same
family, so that it is immoral and scandalous that they should be allowed to marry each
other after reaching the marriageable age.
(5) Marriages between adopted children of the same adopter:
The reason are the same as No. (4) above.
(6) Marriages between parties where one, with the intention to marry the other, killed the
other persons spouse or his or her own spouse:
Under Art. 38 (9) of the Family Code, there is no need for conviction in a criminal case of
the guilty party. The fact of the killing committed by one of the parties to the marriage
can be proved in a civil case.
Relationship outside Arts. 37 and 38 Are Not Impediments to marriage
Other relationships not included in Arts. 37 and 38 are not impediments to marriage,
like:
(1) Brother-in-law and sister-in-law;
(2) Stepbrother and stepsister;
(3) Guardian and ward;
(4) Adopted son of the husband, and adopted
daughter of the wife;

(6)Parties who have been convicted of adultery or


concubinage.
Art. 39. The action or defense for the declaration of absolute nullity shall not prescribe.
(As amended by Executive Order 227 and R.A. 8533)
This a new provision.
The action or defense for the declaration of the absolute nullity of marriage does not
prescribe because mere lapse of time cannot give effect to a marriage or any other
contract that is null and void
(Art. 141, Civil Code, Angeles v. CA., 102 Phil. 1006).
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.
This is also a new provision in the Family Code. The Committee believes that parties to a
marriage should not be allowed to assume that their marriage is void, even if such is the
fact, but must first secure a judicial declaration of the nullity of their marriage before
they should be allowed to marry again.
This Article is in line with the recent decisions of the Supreme Court that the marriage of
a person may be null and void but there is need of a judicial declaration of such fact
before that person can marry again; otherwise, the second marriage will also be void.
(Wiegel v Sempio-Diy, Aug. 19/86, 143 SCRA 499; Vda. De Consuegra v. GSIS, 37 SCRA
315).
This provision changes the old rule that where a marriage is illegal and void from its
performance, no judicial decree is necessary to establish its validity
(People v Mendoza, 95 Phil. 843; People v Aragon, 100 Phil. 1033).
This Article is also for the protection of the spouse who, believing that his or her marriage
is null and void, marries again. With the judicial declaration of the nullity of his or her first
marriage, the person who marries again cannot be charged with bigamy.
Applies to re-marriage under the Family Code
(Atienza V.J. Brillantes, 243 SCRA 32).
A marriage void for lack of a marriage license still needs a judicial declaration of such fact
under the Family Code even for purposes other than remarriage
(Rep. v. C.A. and Castro, 236 SCRA 257; Domingo v. C.A.. 226 SCRA 572).
Art. 41. A marriage contracted by any person during 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 has a wellfounded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the 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.
2 kinds of bigamous marriages under Article 41:

(1) The void bigamous marriages, which is contracted by a person during the subsistence
of his or her previous marriage. Here, the good faith of the party who marries again is
immaterial; the second marriage would still be void. On the other hand, the person who
marries again in bad faith is even criminally liable for bigamy; and
(2)
The voidable bigamous marriage, which is contracted by a person whose spouse has been
absent for four consecutive years (in ordinary absence) or two years (in extraordinary
absence under Art. 391 of the Civil Code), said person having a well-founded belief that
his or her absent spouse was already dead, and after having the latter judicially declared
presumptively dead in a summary proceeding
Above Article Compared with Art. 83 of the Civil Code:
(1) Under Art. 83 of the Civil Code, the subsequent marriage is voidable:
a. when the absent spouse has not been heard of
for seven consecutive years;
b. when, although absent for less than seven years , the absentee is
generally consideredas dead and believed to be so by the present spouse, and
c. when the absent spouse is presumed to be dead after four years from the
occurrence of
any of the events enumerated in Art. 391 of
the Civil Code.
Under the above Article of the Family Code, however:
period of 7 years (which is ordinary absence under Art. 390 of the Civil
Code) is reduced to 4 years, and the period of 4 years under Art. 391 of the
Civil Code (extraordinary absence) is required to reduced to 2 years
the reason being that it is now much easier to receive news about what is
happening in other parts of the country or even abroad because of modern
means of communication and transportation.
Under the Civil Code, there is no need for the missing spouse to the judicially
declared an absentee before the present spouse can marry again. It is enough
that the required period of absence has passed.
Jones v Hortiguela, 64 Phil. 79
For the purpose of a second valid marriage of the present spouse, all that was
necessary was that the absent spouse be unheard of for seven consecutive years
at the time of the second marriage, and that the only purpose of declaration of
absence was the proper administration of the estate of the absentee.
In Re Sztraw, 81 Phil. 461 and Lukban v. Rep., 52 O.G. 1441
Unless the case involved the distribution of property, a declaration of presumptive death
would not be made by the court because such presumption is already made in the law, the
judgment will remain a presumption and will never be final, such declaration might lead the
present spouse to believe that she could get married again. Such rulings, however, conflict
with Art. 349 of the Rev. Penal Code providing that the present spouse must first ask for a
declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in
case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present
spouse contracting a second marriage, he or she must file a summary proceeding as provided
in the Code for the declaration of the presumptive death of the absentee, without prejudice to
the latters reappearance.
This provision is intended to protect the present spouse from a criminal prosecution for
bigamy under Art. 349 of the Rev. Penal Code because with the judicial declaration that the
missing spouse is presumptively dead, the good faith of the present spouse in contracting a
second marriage is already established.
Meaning of Absent Spouse under this Article.
By absent spouse means that the other spouse has been missing for at least four years,
it being unknown whether or not he or she is still alive, and the present spouse having a wellfounded belief that the missing spouse is already dead.
The period of four (4) years is, however, reduced to two (2) years if in the disappearance of
the missing spouse , there was danger of death as provided in Art. 391 of the Civil Code,
namely:
(1) The missing person was on board a vessel lost
during a voyage , or an aeroplane which is
missing;
(2) The missing person was in the armed forces
and had taken part in war: or
(3) The missing person was in danger of death
under other circumstances.
In the above cases, the two-year period of absence is computed from the occurrence
of the event from
which death is presumed.
Vessel in the first case includes all kinds of watercraft, and aeroplane, all kinds of aircraft.
Taking part in war in the second case includes all military operations or undertaking
involving armed fighting, and does not only apply to soldiers but also to those employed in the
armed forces like nurses and doctors, reporters, and cameramen, etc.. In danger of death in
the third case includes such events as earthquakes, fires, explosions, dangerous expeditions,
landslides, volcanic eruptions,
etc.
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.

Rule under the Civil Code:


Under Art. 83 of the Civil Code, the second marriage contracted by a person with an absent
spouse remains valid until annulled by a competent court upon the reappearance of the
missing spouse, which action for annulment may be filed, according to Art. 87, by the
returning spouse during his or her lifetime, or by either spouse of the subsequent marriage of
the present spouse, during the lifetime of the other.
This, however, gives rise to the anomalous situation, if nobody files said action for annulment,
of the present spouse having two husbands or two wives )the returning spouse and the
second spouse), both entitled to exercise conjugal rights. The Civil Code offers no solution to
this situation.
To solve the above problem, many authorities believe that the first marriage and all its
effects with respect to the personal and property relations of the parties should be considered
suspended by the celebration of the second marriage and as long as the latter subsists (see 1
Tolentino, Civil Code of the Phil., 1983 ed., p. 275-276; 1 Paras, Civil Code of the Phil., 1984
ed., pp. 321-322).
To solve the above problem, many authorities believe that the first marriage and all its
effects with respect to the personal and property relations of the parties should be considered
suspended by the celebration of the second marriage and as long as the latter subsists (see 1
Tolentino, Civil Code of the Phil., 1983 ed., p. 275-276; 1 Paras, Civil Code of the Phil., 1984
ed., pp. 321-322).
The effects on the first marriage would be similar to legal separation in which the marriage
subsists but the rights and obligations of the parties to each other, as well as the conjugal
partnership are extinguished, to be revived only in case of the return of the missing spouse
and annulment of the second marriage of the present spouse.
Meanwhile,
(1) The absent spouse who returns cannot get married again because he or she is still
married to the present spouse.
(2) The present spouse cannot have sexual relations with both returning spouse and his or
her second spouse.
(3) Properties acquired by the absent spouse during his or her absence of after his or her
return do not become part of his or her conjugal partnership with the present spouse.
(4) If a child is born of the returning spouse and the present spouse, the child id
illegitimate.
Rule under the Family Code:
The above Article of the Family Code solves all the above problems unsolved by Art.83 of the
Civil Code by providing as follows:
(1) The subsequent marriage referred to in Art. 41 shall be automatically terminated by
the recording of an affidavit of the reappearance of the absent spouse in the office of the local
civil registrar of the residence of the parties to the second marriage.

(2) The affidavit or reappearance may be recorded by the returning spouse or by any
interested person.
(3) Due notice of the recording of the affidavit of the reappearance must be sent to the
spouses of the subsequent marriage.
(4) The fact of reappearance may, however, be referred to the courts in a proper action if
such fact is disputed.
(5) The automatic termination of the second marriage will not apply if the previous marriage
of the present spouse and the returning spouse has been annulled or declared void by the
courts.
Some have criticized the above solution offered by the Family Code in that may be unduly
harsh and oppressive to the spouses of the second marriage who may really love each other
and would like to stay married, just as it might constitute an undue imposition on the present
spouse to live with the returning first spouse even if he or she does not want to do so.
The Committee is of the opinion, however, that the automatic termination of the second
marriage upon the return of the absent spouse id the better solution because if the solution is
left to the present spouse, he or she may decide to keep both marriages. On the other hand,
the absent spouse who returns cannot marry again if his or her spouse decides to stick to the
second marriage.
Or the returning spouse can even blackmail the spouses to the second marriage by
threatening to annul their marriage if they do not pay off. The second marriage, on the other
hand, will remain insecure and hanging, because it may be annulled by either of the parties
during each others lifetime.
Finally, the automatic termination of the second marriage upon the reappearance of the
absent or missing spouse is a risk that the parties to said marriage knew they were taking
when they entered into such marriage, so that if it does happen, no reason to complain.
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;
(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.
Unlike the Civil Code which does not provide for the effects of the termination of the
subsequent marriage under its Art. 83, the Family Code expressly provides for the effects of
the automatic termination of the subsequent marriage under Art. 41 as follows:
(1) The children of the subsequent marriage conceived before its termination shall be
considered legitimate, and their custody and support shall be decided by the courts in the
proper proceeding in case of dispute in accordance with the Codes provision on custody of
children and support.
(2) The absolute community of property or conjugal partnership of the second marriage
shall be dissolved and liquidated, but if one of the parties to the marriage was bad faith, his or
her share in the net profits shall be forfeited in favor of the common children, or if none the
children of the guilty spouse by a previous marriage, or in default of such children, the
innocent
spouse.
(3) Donation by reason of marriage shall remain valid, but such donations in favor of the
guilty spouse are revoked by operation of law.
(4) The innocent spouse may revoke the designation of the guilty spouse as beneficiary in
any insurance policy, even if such designation be stipulated
as irrevocable, and
(5) The spouse in bad faith shall be disqualified to inherit from the innocent spouse by testate
or 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.
(1) Bad faith under this Article means that both spouses to the subsequent marriage
knew that the absent spouse was still alive when hey entered that the absent spouse was still
alive
when
they
entered
into
said
marriage.
(2) The spouses to the subsequent marriage being bad faith, their marriage is, as provided in
the above article, void ab initio, and they may even be prosecuted for bigamy.
(3) Again, the subsequent marriage being void ab initio, its effect on the personal and
property relations of the spouses as well as their children will be those of marriages that are
null
and
void
and
not
those
of
voidable
marriages.
(4) Donations by reason of marriage and testamentary dispositions made by one in favor of
the other are, under the above Article, revoked by operation of law.

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 eighteen
years of age or over but below twenty-one, and the marriage was solemnized without the
consent of the parents, guardian or person having substitute parental authority over the
party, in that order, unless after attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with
full knowledge of the facts constituting the fraud, freely cohabited with the other as husband
and wife;
(4) That the consent of either party was obtained by force, intimidation or undue 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.
85
of
the
Civil
Code
and
Above
Article
Compared
Under Art. 85 of the Civil Code, there are six grounds for annulment of marriage, namely:
(1) Lack of parental consent in cases where the parties needed the same;
(2) The existing prior marriage of a person who, because of the absence of his or her
spouse,
marries
again;
(3) Insanity of one of the parties;
(4)
Fraud
vitiating
the
consent
of
one
the
parties;
(5) Violence or intimidation that vitiated the consent of one of the parties; and
(6) Impotency (Physical incapability to copulate) of one of the parties.
Under the above Article of the Family Code, however, the following changes have been
made
to
Art.
85
of
the
Civil
Code:
(1) The ground of prior existing marriage (par.2 of Art. 85 of the Civil Code) has been
eliminated because under Art. 42 of the Family Code, there is no need to annul the second
marriage of the present spouse upon the reappearance of the absent spouse, since said
second marriage is automatically terminated by the recording of the absent spouses
reappearance in the office of the local civil registrar.

(2) Undue influence has been added to par. 5 of Art. 85 of the Civil Code as ground for
annulment
of
marriage.
(3) Par. 6 of Art. 85 of the Civil Code has been amended by the Family Code by making both
absolute and relative impotency (physical incapability of consummating the marriage with the
other spouse) ground for annulment of marriage.

(d) Intoxication which results in lack of mental capacity to give consent is equivalent to
insanity; so is somnambulism.

Another ground for annulment of marriage has been added; if either party is afflicted with a
sexually transmissible disease found to be serious and appears to be incurable.

(f) Since the presumption of the law is generally in favor of sanity, the burden of proof os on
the party who alleges the insanity of the other.

Grounds
for
Annulment
of
Marriage
Explained:
1.
Lack
of
parental
consent:
(a) This applies to parties who, being 18 years and above but below 21 years of age, get
married
without
parental
consent.
(b) The marriage may, however, be ratified if the parties freely cohabit with each other upon
reaching 21 years of age. Mere transient sexual intercourse is not sufficient.

Fraud:
(a) Not all kinds of fraud will justify the annulment Art. 1337.

Tolentino believes, however, that the parents may ratify the marriage before the child reaches
the proper age, since parental consent is all the law requires, so that it is immaterial that
consent is given in advance or after the marriage by ratification. Besides, the parents can ask
for the annulment of the marriage before the child reaches the age when he or she can
already get married without personal consent, and this right of the parents can be waived. (1
Tolentino, id., 280)
(c) The parents who did not give consent cannot ratify the marriage by giving consent after
the
marriage.
2.
Insanity
of
one
of
the
parties:
(a) For distinction between insanity and psychological incapacity under Art. 36 which is a
ground
for
the
declaration
of
nullity
of
marriage.
(b) The marriage can be ratified by the same partys cohabitation with the other after the
latters insanity has been cured (i.e., the latter has returned to reason), because insanity is
sometimes curable.
(c) Mere mental weakness that does not deprive a party of the capacity to understand and
appreciate the consequences of the step he or she is taking, does not affect the validity of the
marriage, unless it amounts to psychological incapacity to perform the essential marital
obligations under Art. 36, in which case the marriage may even be declared null and void.
(c) Mere mental weakness that does not deprive a party of the capacity to understand and
appreciate the consequences of the step he or she is taking, does not affect the validity of the
marriage, unless it amounts to psychological incapacity to perform the essential marital
obligations under Art. 36, in which case the marriage may even be declared null and void.

(e) The insanity of one party must exist at the time of the marriage, not prior or subsequent
thereto.

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.marriage, but only those enumerated in
Art.
46
of
the
Code.
(b)
See
comments
under
Art.
46.
(c) The marriage maybe ratified by free cohabitation between the parties after full knowledge
of
the
fraud.

4.
Force,
intimidation,
or
undue
influence:
(a) The definition of violence, intimidation, and undue influence are found in Arts. 1335
to 1337 of the Civil Code.

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 the intimidation, the age, sex and condition of the person shall
be
borne
in
mind.
A threat to enforce ones 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.
Ruiz v Atienza, CA, O.G. 1903

The threat to enforce a legal claim, like a threat to file a case for immorality against a bar
candidate if he does not marry a girl with whom he had carnal knowledge, does not vitiate
consent to a marriage.
Tiongco v Matig-a, 44 O.G. No. ,1, p.96)
The threat or intimidation must be of such a nature as to prevent the victim from acting as a
free agent.

Although the general rule is in favor of potency, there is a doctrine applied in England and
by some U.S. courts called the doctrine of triennial cohabitation to the effect that if the wife
still remains a virgin after living together with the husband for 3 years, the latter is presumed
impotent, and he will have to present evidence to overcome this presumption (Tompkins v
Tompkins, 92 N.J. eg. 113, 111 Atl. 599).
Jimenez v. Canizares, L-12790, Aug. 31, 1960
Can the court assume that the wife is impotent

Thus, where a man was threatened with armeddemonstrations by the brothers of the woman
in order to marry the latter, the marriage was held annullable.

and annul the marriage upon complaint of her

People v. Santiago, 51 Phil. 68

husband if she refuses to submit to a physical

Where a man rapes a girl and then forces her to marry him in order that he may not be
prosecuted for rape, but no intention to live with the girl, the marriage is annullable.

examination to determine her potency?

The Code Committee added undue influence as a ground for annulment of marriage
because while the fear that induces a person to enter into a marriage may not strictly be
founded on any threatened physical, material, or moral harm, he may be compelled to enter
into a marriage out of reverential fear, i.e, fear of causing distress, disappointment or anger
on the part of one whom a person has been conditioned to revere, respect, or obey out of a
special debt of gratitude, like his parents, grandparents, god parents, employer, etc.
5. Impotency
(a) This refers to lack of power to copulate, not to mere sterility.
Sara v. Guevarra, C.A., 40 O.G 263
The impotency of one party must be present at the time of the marriage, must be continuous,
and must appear incurable. Thus, where the impotency can be removed bysurgical operation,
the marriage is not annullable
Only the potent spouse can file the action for annulment and he or she must not have been
aware
of
the
others
impotency
at
the
time
of
the
marriage.
If both spouses are impotent, the marriage cannot be annulled because neither spouse is
aggrieved by the other.
Impotency due to old age is not a ground for annulment, since one who married an old
person takes a calculated risk that the latter may be impotent.
Jimenez v Canizarez, L-12790, Aug. 31, 1960
Potency is presumed, and the party who alleges that the other is impotent has the burden of
proving his allegation.

HELD: NO
Ratio:
The refusal of the wife to be examined does not create a presumption of her impotency
because Filipino girls are inherently shy and bashful. The trial court must order the physical
examination of the girl, because without 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
NOTE:
If the girl refuses to be examined after having been ordered by the court to do so, she can be
held guilty of contempt and ordered confined in jail until she complies with the order of the
court.
Relative Impotency:
This may now be invoked as a ground for annulment under the Family Code; i,.e, the physical
incapability one party to consummate the marriage with the other.
The Committee has decided to include relative impotency of one party as a
ground for annulment of marriage because there are cases where a person is impotent with
respect to his spouse but not with other men or women.
Example:
1.
a man may not be able to harness penile erection with his wife but can do so with other
women; or

2.
a mans genitals are too big that he cannot have intercourse with the genitals of his wife
but can do so with a woman but can do so with a woman who, having also abnormal genitals,
matches his functionally for coitus.
(6) Affliction of sexually-transmissible disease found to be serious and which appears
incurable.
How

May

Voidable

Marriages

be

Ratified

or

Convalidated?

A voidable marriage may be ratified or convalidated by cohabitation and by prescription.


Certain marriages, however, cannot be ratified or convalidated by free cohabitation;

Provision of Art. 86 of the Civil Code and Above Article Compared:


Under Art. 86 of the Civil Code, the frauds that constitute grounds for annulment of
marriage are only the following:
(1) Misrepresentation as to the identity of one of the contracting parties;
(2) Non-disclosure of the previous conviction of the other party of a crime involving moral
turpitude, and the penalty imposed was imprisonment for two years or more; and
(3) Concealment by the wife of the fact that at the time of he marriage he was pregnant
by a man other than her husband.

namely:

The above Article of the Family Code amends Art. 86 of the Civil Code as follows:

(1) Those vitiated by a prior subsisting marriage, since the cause of nullity of this marriage
exists as long as the absent spouse is alive. Besides, to allow its ratification would result in
the anomalous situation of one person having two living spouses;

(1) Mistake of one of the contracting parties as to the identity of the other has been
included as a ground to declare the marriage void under Art. 35, the reason being that if one
party is mistaken as to the identity of the other, whether through the others fraud or for any
other reason, the former did not really give consent to the marriage, and the marriage is void
for lack of valid consent on the part of the party mistaken. If the party is guilty of fraud,
however, he is criminally and civilly liable.

(2) Those vitiated by the impotency of one spouse, since the cause of nullity does not cease
to exist as long as such impotency of the spouse remains; and
(3) Those vitiated by the affliction of one spouse of a sexually-transmissible disease
found to be serious and appears to incurable, since like impotency, the cause of the nullity of
the
marriage
remains
as
long
as
the
sick
spouse
remains
so
afflicted.
The action to annul a marriage on grounds (2) and (3) above, however, prescribes within
five years after the marriage Art. 41 (5)).
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.

(2) The above Article of the Family Code has eliminated the requirement that the
penalty imposed should be imprisonment for two years or more in the fraud of one party
consisting of his non-disclosure of a previous conviction of a crime involving moral turpitude.
Under the above Article, all such non-disclosure of a previous conviction of a crime involving
moral turpitude constitute fraud that can justify the annulment of a marriage, irrespective of
the penalty imposed, since the important thing is that the party guilty of such non-disclosure
is lacking in good moral character, and the other party did not know about it.
(3) The above Article adds two other concealments (in addition to concealment by the
wife of the fact that at the time of the marriage she was not pregnant by a man other than
her husband) as also constituting fraud that can be a ground for annulment of marriage,
namely:
(a) Concealment of a sexually-transmissible disease regardless of its nature, existing at
the time of the marriage: and
(b) Concealment of drug addiction, habitual alcoholism, homosexually or lesbianism
existing at the time of the marriage.
(4) To the other misrepresentations that do not constitute fraud that give ground for
annulment of marriage in Art. 86 of the Civil Code namely, misrepresentations as to character
rank, fortune, or chastity, the above Article of the Family Code adds misrepresentation as to
health.

In other words, concealment by one party that he is seriously ill because of cancer,
heart trouble, high blood pressure, diabetes, etc. does not constitute a ground for annulment
of marriage.
Concealment of a Sexually-Transmissible Disease as Fraud Under Art. Distinguished from
Affliction with a Sexually Transmissible Disease as Ground for Annulment of Marriage under
Art. 45 (6)).
In Art 45 (6), the fact that one party is afflicted with a sexually-transmissible disease
found to be serious and appears to be incurable is a ground for annulment of marriage,
whether such fact was concealed or not from the other party, as long as the disease was
present at the time of the marriage.
The sick party might not even have known of his own illness at the time of the marriage, but
once the illness is discovered, the other party is entitled to annul the marriage, on the theory
that if she or he had known about it, she or he would not have consented to the marriage.
The healthy party, because of love and compassion for the sick party, might not after all annul
their marriage, but he or she should be given the right to annul the same, considering the
seriousness of the other's illness, which may not only be transmitted to the healthy spouse
but may even have serious effects on their offspring. (Examples: AIDS, herpes)
In Art. 46. (3), the concealment of a sexually-transmissible disease by the sick party
from the other party which constitutes fraud that would justify the annulment of their
marriage refers to any kind of sexually-transmissible disease, regardless of its nature.
The healthy party can annul the marriage on the ground of fraud.
Concealment of Conviction of a Crime Involving Moral Turpitude as Constituting Fraud that
may be a Ground for Annulment of Marriage:
As already stated, while Art. 86 of the Civil Code provides that the penalty for the
previous conviction of one party of a crime involving moral turpitude that he or she did not
disclose to the other party should be imprisonment for two years or more, the above Article
of the Family Code does not mention any penalty, so that as long as the crime of which one
party was convicted involved moral turpitude and such fact was concealed from the other
party, the latter can ask for annulment of their marriage on the ground of fraud.
The wisdom of this provision is very doubtful. This is really a deceit as to character,
and has no essential bearing upon the marital relations of the parties. The concealment of a
woman of a previous life of prostitution would be a more serious fraud than mere conviction
for theft or estafa with a penalty of two years or more; and yet; while the former fraud as to
character would not be a ground for annulment the latter is made so by this article. Besides,
there are serious offenses involving moral turpitude under special statutes, for which either
fine or imprisonment may be imposed in the discretion of the court; if the court imposes a

penalty of fine of, say, P10,000, instead of a possible imprisonment of ten years, the
concealment of this conviction would not constitute fraud under. (1 Tolentino, id., 289-290).
Concealment of Fact that Wife was Pregnant by Another Man as Constituting Fraud that
would be a Ground for Annulment of Marriage:
(1) This is a very serious fraud that goes to the very essence of marriage, for one of the
most important objects of marriage is procreation of children, and a husband has the right to
require that his wife shall not bear to his bed aliens to his blood and lineage (Tolentino, id.,
p.290)
(2) But where the wife was already at an advanced stage of pregnancy at the time of the
marriage, the husband can no longer invoke fraud as the condition of his wife was already
patent to him when they got married (Buccat v. Mangahas, 72 Phil. 19).
(3) The fact that the wife was formerly prostitute or has delivered a child buy another
man before her marriage does not constitute a ground for annulment of marriage on the
ground of fraud, for it is not included in Art. 46 (2). The husband should have investigated his
wifes background before he married her.
Art. 47. The action for annulment of marriage must be filed by the following persons and
within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did
not give his or her consent, within five years after attaining the age of twenty-one, or by the
parent or guardian or person having legal charge of the minor, at any time before such party
has reached the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same 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;
(3) For causes mentioned in number 3 of Articles 45, by the injured party, within five years
after the discovery of the fraud;
(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;
(5) For causes mentioned in number 5 and 6 of Article 45, by the injured party, within five
years after the marriage.
Under this Article, in relation to Art. 45, the following diagram shows the parties entitled to
file the action for annulment under each ground, the corresponding period of prescription of
action, and whether the defective marriage can be ratified or not:

Ground for
Annulment

Who
can file
action

Period
of
Prescriptio
n

Convalidatio
n
or
Ratification

Ground for
Annulment

Who
can file
action

Period
of
Prescriptio
n

Convalidatio
n
or
Ratification

Lack
Parental

(1)
Party
under
age

Within
5
years after
attaining
21

Free
cohabitation
after
reaching 21.

Fraud

The
injured
party.

Within
5
years from
discovery
of fraud

Free
Cohabitation
after
knowledge
of fraud

(2)
Parent
or
guardia
n

Before
child
reaches 21

Force,
Intimidation
, or Undue
Influence

The
injured
party

Within
5
years
from
cessation
of cause.

Free
cohabitation
after cause
has
disappeared

(1) The
sane
spouse

Before
death
other
party

Impotence
of one party

The
potent
party

Within
5
years after
marriage

Cannot
be
ratified, but
action
prescribes.

(2)
Guardia
n
of
insane
spouse

-do-

Serious
sexually
transmissibl
e disease of
one party

The
healthy
party

Within
5
years after
marriage.

Cannot
be
ratified, but
action
prescribes.

(3)
Insane
spouse

During
lucid
interval
after
regaining
sanity,
also before
death
of
other
party.

of

Consent

Insanity of
one party

of

Free
cohabitation
after insane
regains
sanity.

Periods of Prescription under Art. 87 of the Civil Code:


Note that under Art. 87 of the Civil Code, some periods of prescription for the filing of the
action for annulment of marriage are different from those prescribed in the above Art. 47 of
the Family Code, to wit:
(1) In case of lack of parental consent, the period or prescription for the filling of the
action for annulment by the minor whose parent did not give parental consent is within four
years after reaching 18 for the girl and 20 for the boy.
(2) In case of fraud, the period of prescription is within 4 years from the discovery of the
fraud.

(3) In case of violence or intimidation, the period of prescription is within 4 years from the
cessation of the violence or intimidations;
(4) In case of impotency of one parties, the period of prescription is within 8 years from the
date of the marriage.
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.
Under Art. 88 in relation to Art. 101, par.2, of the Civil Code, it is only when the defendant
does not appear that the court is required to order its fiscal in behalf of the State after
ascertaining that there was no collusion between the parties. Under the above Article,
however, the trial of the court shall be ordered to appear whether the defendant appears or
not.
The reason for the intervention of the trial fiscal of the court at the trial of any case involving
the annulment or declaration of nullity of a marriage is because marriage is not just a contract
between the parties but a social institution in the preservation of which the State is interested.
The above is also the reason why the second paragraph of the above Article provides that
no judgment annulling a marriage or declaring it void ab initio shall be based upon a
stipulation of facts or a confession of judgment. The purpose of this provision, which is also
found in Art. 88 of the Civil Code , is to prevent collusion between the parties in obtaining a
decree of annulment or declaration of nullity of their marriage.
If, in spite of the above safeguards, the parties still succeed in obtaining
a decree of
annulment or declaration of nullity of marriage, through collusion, the decree is absolutely
void.
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.
The support of the spouses and the children during the pendency of the case shall of
course come from the absolute community or conjugal properties of the spouses.

After the annulment or declaration of the nullity of the marriage, support between the
spouses shall already cease, since they are no longer husband and wife and have n more duty
to support each other but they shall continue to support their children.
As to custody of the children, the court should be guided by the best interests and welfare of
said children, taking into account all relevant considerations, as well as the choice of the child
over seven years of age as to the parent he would like to live with, unless the parent chosen
is unfit (Art. 213, first par).
No child under seven years old shall, however, be separated from the mother, unless the
court finds compelling reasons to order otherwise (art. 213, second paragraph).
The Code Committee agrees with the Civil Code that a child below seven years is still a
baby who needs the loving care of his or her mother, and no one in the world can take better
care of a child than the mother.
The Court shall also provide for appropriate visitation rights of the other parent.
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 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 third 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.
(1) The provisions of Art. 43, par. (2) to (5), and Art. 44, shall also apply in proper case
to marriages declared void ab initio or annulled under Arts. 40 and 45 hereof. Thus, in the
liquidation of the absolute community or conjugal partnership properties of the annulled
marriage, the following rules shall apply:
(a) The share of the party who acted in bad faith in the net profits shall be forfeited in
favor of the common children or, if none, the children of the guilty spouse by a previous
marriage, or in default of such children the innocent spouse.
(b) Donations by reason of marriage shall remain valid, but donations in favor of the
guilty spouse shall be revoked by operation of law.

(c)The designation by the innocent spouse of the guilty spouse as beneficiary in any
insurance policy may be revoked even if such designation is stipulated as irrevocable.

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.

(d) The spouse in bad faith shall be disqualified to inherit from the innocent spouse by
testate or intestate succession.

(1) In the partition of the net profits of the absolute community or conjugal properties
between the spouses, the value of the presumptive legitimes of their common children,
computed as of the date of the final judgment of the court, shall be delivered to them in cash,
property, or sound securities unless the parties have already provided for such matters and
their agreement has been approved by the court.

(e) If both spouses are guilty, donations by reason of marriage and testamentary
dispositions made but one in favor of the other shall be revoked by operation of law.
Note that if the marriage is declared void ab initio, the parties would not have an absolute
community or conjugal partnership of property, and the rules in Arts.
147 and 148 on Property Regime of Unions Without
Marriage would apply.
(2) The final judgment of annulment or declaration of nullity of marriage 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 the presumptive legitimes of said children, unless
such matters had already been adjudicated in previous proceedings.
(3) All creditors of the spouses as well as of their absolute community or conjugal
partnership shall be notified of the proceedings for liquidation and should be allowed to
intervene to protect their interests.
(4) In the partition, the conjugal dwelling and the lot on which it is situated shall be
adjudicated in accordance with Arts. 102 and 129, i.e,
(a) Said house and lot shall be adjudicated to the spouse with whom the majority of
the common children should choose to remain.
(b) Children below 7 years are deemed to have chosen the mother, unless the court
decides otherwise.
(c) In case there is no majority (of the common children), the court shall decide, taking
into account the best interests of the 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 of both of the

(2) If the delivery of the childrens presumptive legitime is not made although ordered by
the court, the children, or their guardians or trustees, may ask the court to enforce said
judgment.
(3) The delivery of the presumptive legitimes of the children shall be considered as
advances on their legitimes and shall not prejudice their ultimate successional rights accruing
to them upon the death of either of their parents.
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.
(1) The judgment of annulment or absolute nullity of marriage, the partition and
distribution of the properties of the spouses, and the delivery of the childrens presumptive
legitimes shall be recorded:
(a) in the appropriate civil registry; and
(b) in the registries of property of the places where the real properties distributed and
delivered are located.
(2) Third persons will not affected and prejudiced by the aforesaid judgment unless the
recording aforementioned is complied with.
Art. 53. Either of the former spouses may marry again after compliance with the requirements
of the immediately preceding Article; otherwise, the subsequent marriage shall be null and
void.
(1) Either of the former spouses may marry again after complying with the requirements
of the immediately preceding articles.
(2) If any of them marries again without complying with such requirements, 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 Article 53 shall likewise be
legitimate.
(1) Children conceived or born of the subsequent marriage under the immediately
preceding article shall, however, be legitimate, although said subsequent marriage is null and
void. The Committee does not want the children to suffer because of the fault of their parents.
(2) Children conceived or born before the judgment of annulment of marriage under the
preceding provisions shall be considered legitimate. This is because voidable or annullable
marriages are valid until annulled.
(3) Children of marriages that are judicially declared null and void or void ab initio are,
however, illegitimate (Art. 165), except for children born of the void marriages under Art.36
and under the immediately preceding Art. 53.

(4) Note that there are no more natural children by legal fiction under the Family Code,
which classifies children only as legitimate or illegitimate (Art. 164 and 165).