Marriage

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

(1) reproduction,
(2) education of the offspring, and
(3) mutual help.
The immediate purpose is the constitution of a complete and perfect community bet. 2 individuals of different sexes;
the remote purpose is the preservation of the human race.
Art. 1. Marriage is a special contract of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal and family life. It is the foundation of the family and
an inviolable social institution whose nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix the property relations during the marriage
within the limits provided by this Code.
Marriage is a contract only in form, but in essence it is an institution of public order, founded on custom and
morality. It is a contract sui generis w/c cannot be compared to any other contract.
Characteristics of Marriage:
(1) It is civil in character, bec. it is established by the State independently of its religious aspect;
(2) it is an institution of public order or policy, governed by rules established by law w/c cannot be made inoperative
by the stipulation of the parties;
(3) it is an institution of natural character, bec. one of its objects is the satisfaction of the intimate sentiments and
needs of human beings for the organic perpetuation of man.
Marriage is a contract. Art. 52, NCC provides that M is not a mere contract. Art. 1, FC, on the other hand provides
that M is a special contract. Both emphasize that M is not just a contract.
Marriage Differentiated from Ordinary Contracts:
(1) As to parties: Ordinary contracts (OC) may be entered into by any no. of persons, whether of the same or
different sex, while marriage (M) can be entered into only by one man and one woman;
(2) As to contractual rights and obligations: In OC, the agreement of the parties has the force of law bet. them while
in M, the law fixes the duties and rights of the parties;
(3) As to termination: OC can be terminated by mutual agreement of the parties, while M cannot be so terminated;
neither can it be terminated even though one of the parties subsequently becomes incapable of performing his part;
and
(4) As to breach: Breach of OC gives rise to an action for damages, while breach of the obligations of a husband or a
wife does not give rise to such an action; the law provides penal and civil sanctions, such as prosecution for adultery
or concubinage, and proc. for legal sep.;
(5) As to effect: OC do not create status, M does.
Quite logically, marriage is the starting point of any family relation bec. in our legal system, the family is the
keystone of society, the basic unit of society. And marriage is the keystone of the family. This is a value judgment.
Marriage does not have to be the keystone of the family. But we choose it to be that way.
Much arguments have been raised regarding the status of children on the distinction of legitimate from illegitimate.
There are those who propose the abolition of the distinction as it is not the fault of the illegitimate child that he is
such. But one of the unintended consequences of abolishing the distinction is to erode the institution of marriage.
Principal Effects of Marriage:
(1) personal and economic relations bet. the sps., w/c become sources of impt. rights and duties;
(2) the legitimacy of sexual union and of the family;
(3) the personal and economic relations bet. parents and children, w/c gives rise to considerable rights and duties;
(4) the family rel'p, from w/c flows various juridical consequences, such as impediments to marriage, right to
support, and rights to inheritance;
(5) incapacity of the sps. to make donations to each other;
(6) disqualification of the sps. to testify against each other;
(7) modification of crim. liab., such as by way of exemption when one spouse defends the other from unlawful
aggression or is his accessory after the fact, or mitigation when the crime is committed in vindication of a grave
offense to the spouse, or aggravation when the injured is the spouse of the offender, such as in parricide.
Where parties mutually agree to marry each other at some future time, there is a contract to marry. It can be
distinguished from an ordinary contract in that the promise of either party cannot be enforced by court action, bec.
the consent to the actual marriage must be purely voluntary.
Breach of Promise - There is repudiation where before the time set for the performance of the marriage, one party
declares that he will not carry it out, or refuses to further communicate w/ or maintain a suitor's relation w/ the other
party, or puts himself in a position where he cannot execute the contract, as when he marries another.
Damages for Breach - The action for breach of promise to marry has no standing in the civil law, apart from the
right to recover money or property advanced by the plaintiff upon the faith of such promise." (De Jesus v. Syquia,
58 P 866.)
We believe that an action based purely on breach of the contract to marry, will not lie. It is true that she may suffer
from wounded feelings and mental anguish, and these are recognized as elements of moral damages under article
2217; but before such damages can be recovered, there must first be a right of action, and there is no law granting a
right of action on breach of contract to marry. However, we believe that if the action for damages is based on tort or
quasi-delict, or on articles 19, 21, or 22 of the present Code, there would be a sufficient legal basis or right of action
for damages.
Effect of Seduction - It is possible legally to base an action upon the carnal knowledge of the pltff. by the def., or
upon the seduction, as a fact separate from the contract to marry. The promise to marry would only be the means of
accomplishing the seduction. If the offended woman has been led to submit to carnal intercourse by the promise of
marriage, she should be entitled to damages, not only on the basis of tort or quasi-delict, but under the provisions of
art. 21. The essence of the action would not be the breach of the contract, but the tortious or wrongful act or
seduction accomplished through the deceitful promise.
Abuse of right - Even when there has been no seduction, we believe that under art. 19, damages, may under certain
circumstances, be recovered against a party who repudiates a contract to marry; but the basis of the action cannot be
the mere breach of contract itself, but some act constituting an abuse of right.
Unjust enrichment - Another legal basis in connection w/ a breach of contract to marry is art. 22 on unjust
enrichment. Gifts to the person to whom the donor is engaged to be married are considered legally as conditional,
and upon breach of the engagement by the donee, may be recovered by the donor. (see Domalagan v. Bolifer, 33 P
471.)
Under 1403 "an agreement made in consideration of marriage, other than a mutual promise to marry," shall be
unenforceable by action, unless the same, or some note or memorandum thereof, be in writing, and subscribed the
party sought to be charged. (Statute of Frauds.)
It seems to us that the writing is not necessary in an action for damages for breach of a contract to marry. First,
where the party who sues for damages has already given the consideration for the promise of the def., it is unjust to
deny the action on the plea of the Statute of Frauds. Second, the Statute should apply only when the action is to
enforce the contract; but not when it is for damages for breach.
Goitia v. Campos Rueda [35 P 252]
FACTS: This is an action for support by G (wife) against R (husband). After 1 mo. of marriage, R repeatedly
demanded from G to perform "unchaste and lascivious acts on R's genitals." Bec. of G's refusal, R maltreated G by
word and deed, inflicting bodily injuries on G. To escape R's lewd designs and avoid further harm, G left the
conjugal home and took refuge in her parent's house. G filed an action for support w/ the trial court. This was
dismissed on the ground that R could not be compelled to give support if G lived outside of the conjugal home,
unless there was legal sep. G appealed.
HELD: Marriage is something more than a mere contract. It is a new relation, the rights, duties, and obligations of
w/c rest not upon the agreement of the parties but upon the general law w/c defines and prescribes those rights,
duties, and obligations. Marriage is an institution; in the maintenance of w/c in its purity the public is deeply
interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract
they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law
determines from time to time and none other. When the legal existence of the parties is merged into one by
marriage, the new relation is regulated and controlled by the state or govt upon principles of public policy for the
benefit of society as well as the parties. And when the object of a marriage is defeated by rendering its continuance
intolerable to one of the parties and productive of no possible good to the community, relief in some way should be
obtainable.
The law provides that the H, who is obliged to support the wife, may fulfill this obligation either by paying her a
fixed pension or by maintaining her in his own home at his option. However, the option given by law is not absolute.
The law will not permit the H to evade or terminate his obligation to support his wife if the wife is driven away from
the conjugal home bec. of the H's own wrongful acts. In this case, where the wife was forced to leave the conjugal
abode bec. of the lewd designs and physical assaults of the H, the W may claim support from the H for separate
maintenance even outside of the conjugal home.
I. REQUISITES OF A VALID MARRIAGE
3 Essential Requisites:
(1) legal capacity of the contracting parties,
(2) consent freely given and
(3) difference in sex (other commentators opine that this third is already included in legal capacity.)
3 Formal Requisites:
(1) authority of the solemnizing officer,
(2) a valid marriage license and
(3) some form of ceremony.
Absence of a requisite - whether essential or formal, renders the M void

Absence means a total want of a requisite. E.g., the total absence of a marriage license (absence of a formal
requisite) w/c renders the M void.
A defect in the essential requisite makes the M voidable
E.g., where the consent of either party was vitiated by intimidation.
An irregularity in the formal requisite does not affect the validity of the marriage but this is w/o prejudice to the
criminal, civil or administrative liab. of erring officials.
E.g., where the marriage license was issued w/o complying w/ the 10-day posting requirement. (Art. 17, FC.)
1. Difference in Sex (an essential requisite)-- Articles 2 par. 1, 4 par. 1, 39
Art. 2. No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female;
The phrase, "who must be a male and a female, was not found in the NCC.
Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as
stated in Article 35 (2).
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.
2. Some Form of Ceremony (a formal requisite.)-- Articles 3 par. 3, 4 par. 1, 6
Art. 3. The formal requisites of marriage are:
(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.
The requirement of a marriage ceremony prevents the recognition in the Phils. of what are known as "common law
marriages." A common law marriage is a present agreement bet. a man and a woman w/ capacity to enter into such
rel'p, to take ea. other as H and W, followed by cohabitation.
Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except
as stated in Article 35 (2).
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.
Requisites of some form of ceremony:

(1) Personal appearance of the contracting parties in the presence of the solemnizing officer. This rule out proxy
marriages.
(2) The declaration that they declare in some manner that they take each other as H & W. This provision is worded
broadly. There is no set formula for the declaration, no particular words are required. It does not even have to be oral
provided that there is sufficient manifestation of their will that they take each other as H & W.
(3) Presence of at least 2 witnesses of legal age. Some say that the absence of this 3rd requisite renders the marriage
void. Others say it is only an irregularity.
It is not necessary to the validity of the marriage that the contracting parties should recite precisely the words of the
statute. It is enough that the words employed evidence mutual consent.
The certificate is merely of evidentiary value, and failure to sign the same does not render the marriage a nullity.
The consent can be proved by other competent evidence, such as the testimony of the solemnizing officer, of the
parties themselves, of the witnesses to the marriage, and of others present at the wedding.
Martinez v. Tan [12 P 731]
FACTS: Pltff. Rosalia Martinez commenced this action for the cancellation of the cert. of marriage and for damages.
Pltff. claimed that what took place before the justice of the peace did not constitute a legal marriage under Gen.
Orders No. 68, Sec. 6, "No particular form for the ceremony of marriage is required, but the parties must declare, in
the presence of the person solemnizing the marriage that they take each other as husband and wife." CFI found for
def.
HELD: The parties addressed a signed petition to the justice of the peace stating that they had agreed to marry, and
asking the justice of the peace to marry them. Before the justice of the peace, they stated under oath that they ratified
the contents of their petition and insisted on what they asked for. This statement was signed by them, in the presence
of witnesses that they produced. A certificate was then made out by the justice of the peace, signed by him and the
witnesses, stating the parties had been married by him. Both the parties knew the contents of the document w/c they
signed. Under the circumstances, what took place before the justice of the peace amounted to a marriage.
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church,
chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere,
except in cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this
Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn statement of that effect.
This provision is only directory, not mandatory, so that non-compliance therewith will not invalidate the marriage.
SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 (1960)]
The mere fact that the marriage took place on a Sunday also would not necessarily vitiate the marriage on the
ground that it constitutes a violation of the requirement that the marriage shall be solemnized publicly in the office
of the judge in open court.
3. Legal Capacity (an essential requisite.)

(1) Legal capacity of the contracting parties who must be a male and a female;
a. Age - Articles 5, 35 par. 1, 45 par. 1, 47 par. 1, 39
Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract marriage.
Tolentino: Age of Consent - The age for each party provided in Art. 5 is generally known as the "age of consent."
for marriage. Eighteen yrs is the "age of consent" bec. below this age, a party to a marriage cannot give a binding
valid consent.
Balane: 18 yrs. old is an absolute minimum.
Tolentino: Age of Legal Capacity - For a perfect consent that would result in a valid binding marriage, the parties
should be 21 yrs. of age. The age of 21 is, thus, the "age of legal capacity" to marry.
Effect of Penal Law - Under Art. 344, RPC, the marriage of the offender w/ the offended party shall extinguish the
criminal action or remit the penalty already imposed upon him.
Q: If the victim of the crimes of rape, seduction, abduction, and acts of lasciviousness happens to be a girl less than
18 yrs. old, can she validly marry the offender?
A: We believe that she can. It is submitted that the circumstances contemplated by the RPC are of an exceptional
character, and should be considered as an exception to the provisions of the FC on the legal capacity to marry. If
merely bec. she is below the age of consent she will not be permitted to marry the offender, then we will have the
absurd case where the law gives a remedy w/ one and denies it w/ the other hand.
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
Balane: There is here an absolute absence of an essential requisite.
Art. 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the marriage annulled was 18 years of age or over but below
21, and the marriage was solemnized without the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, unless after attaining the age of 21, such party freely cohabited with
the other and both lived together as husband and wife;
The law does not expressly authorize the parent whose consent is required, to ratify the marriage. We believe that
the ratification by the parent whose consent is wanting must be recognized as sufficient to validate the marriage,
provided such ratification is made before the party to the M reaches 21 yrs. old. Art. 47, par. 1 recognizes the right
of such parent to ask for the A of the M bef. the child who has married w/o parental consent reaches the age of 21.
This right can be waived. Besides, if the nullity proceeds from the absence of consent, there is no juridical reason
why such defect cannot be cured by subsequent confirmation.
Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods
indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party whose parent or guardian did not give his or her
consent, within five years after attaining the age of 21; or by the parent or guardian or person having legal charge of
the minor, at any time before such party reached the age of 21;
This kind of marriage can be ratified by cohabitation for a reasonable period of time after the minor reaches the age
of 21. Here ratification can set in even before the prescription sets in.
b. Relationship - Articles 37, 38 par. 1 to 8, 39
Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood.
Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
(1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the adopted child;
(6) Between the surviving spouse of the adopted child and the adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
Marriages bet. nephews and aunts, uncles and nieces, and first cousins are prohibited under par. (1). This prohibition
is based on scientific opinion as well as on public opinion. They are contrary to good morals. Although not
conclusive, there is scientific and expert opinion that, except in rare cases, children of first cousins suffer from
organic defects, and in many instances are idiots, weak-minded, deaf, nearsighted, etc., in other words, their
marriage tends to weaken the race.
c. Prior Marriage - Articles 35 par. 4, par. 6, 40, 41, 42, 43, 44, 53 & 39
There are 3 kinds of marriage that are void bec. of a prior marriage:
1. A bigamous or polygamous marriage, not falling under Art. 41.

There are 3 requisites under Art. 41:
a. Absence of the prior spouses for at least 4 consecutive yrs. or at least 2 consecutive yrs. if it falls under Art. 391,
NCC.
b. The spouse present has a well-founded belief that the absent spouse was already dead.
c. The institution by the spouse present of a summary proceeding of presumptive death of the absent spouse. A
declaration by the court of the presumptive death is of course required.
2. In Art. 40 where the marriage was contracted after a void ab initio marriage w/c has not been declared void by
final judgment.
3. In Art. 53 in case of a subsequent marriage w/c does not comply w/ the requirements of Art. 52.
In Art. 52, you have to do 3 things:
a. Judgment of annulment or nullity of marriage must be registered in the appropriate registry.
b. The registration of the partition and distribution of the properties of the spouses in the appropriate civil registry.
c. The delivery of the common children's presumptive legitime.
(4) Those bigamous or polygamous marriages not falling under Article 41;
(6) Those subsequent marriages that are void under Article 53.
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void.
For purposes of remarriage it would be necessary to such void M to secure a final judgment declaring it null and
void from the beginning. W/o such final judgment, the previous void marriage would constitute an impediment to
the remarriage, and a marriage license may be denied.
This article applies only when a license is to be obtained for a subsequent marriage.
DOMINGO V. CA [226 SCRA 572 (1993)]
A spouse may petition for the declaration of nullity of her marriage for a purpose other than her remarriage.
FACTS: Delia Domingo filed a pet. for decl. of nullity of her marriage w/ Roberto Domingo, on the ground that,
unknown to her, he was previously married at the time of their marriage. She prays that their marriage be declared
null and void and, as a consequence, to declare that she is the exclusive owner of all properties she acquired during
the marriage and to recover them from him. Roberto moved to dismiss the petition on the ground that the marriage
being void ab initio, the petition for decl. of nullity is unnecessary citing Peo. v. Aragon and Peo. v. Mendoza.
Roberto claims that decl of nullity is necessary under Art. 40, FC only for the purpose of remarriage. The lower
court denied the motion. CA affirmed the denial.
HELD: The Declaration of nullity of a marriage under Art. 40 may be resorted to even for a purpose other than
remarriage. Crucial to the proper interpretation of Art. 40 is the position of the word "solely." As it is placed, it is
meant to qualify "final judgment." Had the provision been stated as follows: "The absolute nullity of a previous
marriage may be invoked solely for purposes of remarriage...," the word "solely" will qualify "for purposes of
remarriage" and the husband would have been correct. That Art. 40 as finally formulated included the significant
clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes
of remarriage.
ATIENZA V. BRILLANTES [243 SCRA 32 (1995)]
FACTS: This is an administrative complaint filed by Atienza for Gross Immorality and Appearance of Impropriety
against J. Brillantes, Presiding Judge of MTC, Mla. It was alleged in the complaint that Brillantes has been
cohabiting w/ Yolanda De Castro (w/ whom Atienza had 2 children) when he (Brillantes) was already married to
one Zenaida Ongkiko w/ whom he has 5 children. Resp. denies having been married to Ongkiko, although he admits
having 5 children w/ her. He alleges that while he and Ongkiko went through a marriage ceremony, the same was
not valid for lack of marriage license. The second marriage bet. the two also lacked the required license. He claims
that when he married De Castro in LA, California, he believed, in all GF and for all legal intents and purposes, that
he was single bec. his first marriage was solemnized w/o a license.
HELD: Under the FC, there must be a judicial decl. of the nullity of a previous marriage bef. a party thereto can
enter into a 2nd marriage. (Art. 40.) Art. 40 is applicable to remarriages entered into after the effectivity of the FC
regardless of the date of the first marriage. Said art. is given "retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance w/ the NCC or other laws." (Art. 256, FC.) This is particularly true w/
Art. 40 w/c is a rule of procedure. Resp. has not shown any vested right that was impaired by the application of Art.
40 to his case.
The fact that procedural statutes may somehow affect the litigants' rights may not preclude their retroactive
application to pending actions. The retroactive application of procedural laws is not violative of any right of a person
who may feel that he is adversely affected. The reason is that as a general rule no vested right may attach to, nor
arise from, procedural laws.
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years
and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code,
an absence of only 2 years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee,
without prejudice to the effect of reappearance of the absent spouse.
Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the
heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of
for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for
four years.
The period was reduced in the FC to 2 years in the foregoing cases.

REPUBLIC V. NOLASCO [220 SCRA 20 (1993)] - The declaration of presumptive death under Art. 41, FC is
available only for the purpose of remarriage.
FACTS: Gregorio Nolasco was a seaman. During one of the calls of his ship to England, he met Janet Monica
Parker, a British subject. From that chance meeting, Janet lived w/ Nolasco on his ship for 6 mos. When Nolasco's
contract expired in 1960, Janet went w/ him in returning home to San Jose, Antique. In Jan. 1982, Nolasco married
Janet in Catholic sites in Antique.
After the marriage, Nolasco obtained another employment contract as a seaman, leaving his pregnant wife w/ his
parents. Sometime, in 1/83, while working overseas, Nolasco received a letter from his mother informing him that
Janet had already given birth to his son. The letter also informed him that Janet left Antique after giving birth. In 88,
or 5 yrs. after the disappearance of Janet, Nolasco filed an action for the decl. of presumptive death of his wife Janet
under Art. 41, FC, claiming that all his efforts to look for her proved fruitless. The trial court granted the petition.
CA affirmed the ruling. Hence this petition for review.
HELD: A petition to declare an absent spouse presumptively dead may not be granted in the absence of any
allegation that the spouse present will remarry.
There are 4 requisites for the declaration of presumptive death under Art. 41:
1. That the absent spouse has been missing for 4 consecutive years, or 2 consecutive yrs. if the disappearance
occurred where there is a danger of death under the circumstances laid down in Art. 391.
2. That the spouse present wishes to remarry
3. That the spouse present has a well-founded belief that the absentee is dead.
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
The Court believes that resp. Nolasco failed to conduct a search for his missing wife w/ such diligence as to give rise
to a "well-founded belief" that she is dead. The Court considers the investigation allegedly conducted by Nolasco in
his attempt to ascertain the whereabouts of Janet as to sketchy to form the basis of a reasonable or well-founded
belief that she was already dead. For instance, when he arrived in Antique, instead of seeking the help of local
authorities or of the British Embassy, he secured another seaman's contract and went to London. We do not consider
that walking into a major city w/ a simple hope of somehow bumping into one particular person there can be
regarded as a reasonable diligent search. The Court also views Nolasco's claim that Janet declined to give any info.
as to her personal background even after marrying Nolasco as too convenient an excuse to justify his failure to
locate her.
BIENVENIDO V. CA [237 SCRA 676 (1994)] - When a man contracts a subsequent marriage while the first
marriage is subsisting, the second marriage as a general rule is void for being bigamous. He who invokes that the
second marriage is voidable for being an exception under Art. 83 of the NCC has the burden of proving it.
FACTS: Aurelio Camacho married Conseja Velasco in '42. In '62, w/o this marriage being dissolved, Aurelio
married Luisita Camacho in Tokyo. In '67, Aurelio met Nenita Bienvenido. Aurelio courted and won her and they
cohabited until Aurelio's death in '88. In '82, Aurelio bought a house and lot. In the deed of sale and in the TCT in
his name, he was described as single. In '84, he sold the said house and lot to Nenita. When Aurelio died, Luisita
filed an action to annul the sale to Nenita alleging that it was in fraud of her as the legitimate wife of Aurelio. Nenita
opposed the action claiming that she was a buyer in GF. The trial court upheld the sale in favor of Nenita. The CA
reversed. Hence, this petition for review.
HELD: There is no presumption that the marriage bet. Aurelio and Luisita is valid. As a general rule, under Art. 83,
NCC, a subsequent marriage contracted while the previous one is still subsisting is void. There are exceptions to this
rule but he who is invoking the exception has the burden of proving the existence of the conditions for the said
exception to arise. In the case at bar, the burden of proof was on Luisita to show that at the time of her marriage to
Aurelio, Aurelio's first wife had been absent for at least 7 yrs and that he had no news that she was alive. She failed
to discharge this burden. What applies, therefore, is the general rule. Consequently, there is no basis for holding that
the prop. in question was prop. of his conjugal partnership bet. Luisita and Aurelio bec. there was no partnership in
the first place.
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed.
Marriage under Art. 41 is valid unless terminated under Art. 42. Notice that the law uses the term "terminated" and
not annulled. This is bec. marriage under Art. 41 is a good marriage.
The effect of the affidavit of reappearance is that the subsequent marriage is terminated unless it is judicially
challenged.
If both parties to the subsequent marriage acted in BF (knowing that the absent spouse is alive), the said marriage is
void ab initio under Art. 44.
Q: If only one party has acted in BF, is the M valid?

A: If the spouse who contracted the 2nd M knew that in spite of the absence of his spouse for the period provided in
41 said absent spouse was alive, his 2nd M shld be considered void as bigamous under 35(4), bec. an essential
element in 41 to make it an exception is wanting.
If such present spouse has acted in GF and the declaration of presumptive death has been obtained, the BF of the
2nd spouse will not affect the validity of the M, but the provisions of 43 will operate against him, such as the
revocation of donations by reason of M made to him, of his designation as beneficiary in any insurance of the
innocent spouse, and his disqualification to inherit from the innocent spouse.
If the absentee reappears, but no step is taken to terminate the subsequent M, either by affidavit or by court action,
his mere reappearance, even if made known to the spouses in the 2nd M, will not terminate such M.
It is incorrect to say that the first M is dissolved by the celebration of the 2nd. It would be more accurate to say that
since the 2nd M has been contracted bec. of a presumption that the former spouse is dead, such presumption
continues in spite of his physical reappearance, and by fiction of law, he must be regarded as legally an absentee,
until the subsequent M is terminated as provided by law. The result of this is the suspension of the legal effects of M
as to him as long as the 2nd M subsists.
GOMEZ V. LIPANA [38 S 615 (1958)]
Where a husband and his second wife from whom he concealed his first marriage, acquired properties during their
marriage, the second marriage being void, is subject to collateral attack in the intestate proceedings instituted by the
judicial administratrix for the forfeiture of the husband's share under Article 1417, Spanish Civil Code (no longer in
force) . "The legal situation arising from these facts is that while insofar as the second wife was concerned, she
having acted in good faith, her marriage produced civil effects and gave rise, just the same, to the formation of the
conjugal partnership wherein she was entitled to an equal share upon dissolution." The only JUST AND
EQUITABLE solution is to give one-half of the properties to the second wife, and the other half to the conjugal
partnership of the first marriage.
CONSUEGRA V. GSIS [37 S 315 (1971)]
The husband designated his second family as beneficiaries of his life insurance policy, upon his death, both his first
wife and second family share 50-50 in the benefits. Since the first marriage has not been dissolved, his wife remains
as his legal heir. Although the second marriage is presumed void, having been contracted during the subsistence of
the first marriage, there is a need for a judicial declaration of its nullity, which is no longer possible, the death of the
husband having terminated the second conjugal partnership of gains.
Baviera: The court should not have applied Gomez v. Lipana, since there is no provision in the Civil Code giving
effect to a void marriage in good faith.
PEOPLE V. MENDOZA [95 S 845 (1954)]
A subsequent marriage contracted by any person during the lifetime of his spouse is illegal and void from its
performance, and no judicial decree is necessary to establish its invalidity. A prosecution for bigamy based on said
void marriage will not lie.
PEOPLE V. ARAGON [100 P 1033 (1957)] - cited People v. Mendoza
Baviera: As a defense in bigamy, there is no need for judicial declaration of nullity of a void marriage; as far as
determination of property relations is concerned, there is a need for such judicial declaration for purposes of
remarriage.
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following
effects:
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and
their custody and support in case of dispute shall be decided by the court in a proper proceeding;
(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall be forfeited in favor of the common children or, if there
are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by
operation of law.
Q: If the subsequent marriage is not terminated by the subsequent reappearance or by judicial declaration, but by
death, do these effects arise?
A: It is submitted that generally if a subsequent M is dissolved by the death of either spouse, the effects of
dissolution of valid M shall arise. The GF or BF of either spouse can no longer be raised, bec., as in annullable or
voidable M, the M cannot be questioned except in a direct action for annulment. But if both parties acted in BF,
under 44, the M is void ab initio. In such case, the validity of the M can be attacked collaterally at any time, and the
effects provided on 44 can be applied even if the dissolution is by death of one of the spouses.
Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be null and void.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx
d. Crime.-- Articles 38 par. 9, 39

Art. 38. The following marriages shall be void from the beginning for reasons of public policy:
xxx
(9) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her
own spouse.
Art. 38 (9) used to be Art. 80 (6) of the NCC. Two changes were made: (1) the killing must be w/ the intention to
marry the other; (2) conviction is not required, a preponderance of evidence being sufficient.
Killing of Spouse - It is submitted that a criminal conviction for the killing is not necessary to render the marriage
void under the FC. The removal of the requirement by the FC must be taken as deliberate.
xxx
e. Physical capability - Articles 45 par. 5, 47 par. 5
xxx
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity
continues and appears to be incurable;
Physical Incapacity, Requisites:

(1) The incapacity exists at the time of the celebration of the M;
(2) Such incapacity must be permanent (it continues to the time when the case for annulment is being tried) and
incurable ;
(3) It must be unknown to the other contracting party;
(4) the other spouse must not himself/ herself be impotent.
This kind of marriage cannot be ratified by ratification.
The physical incapacity referred to by the law as a ground for A of M, is impotence [impotentia copulandi/ coeundi
as distinguished from impotentia generandi (sterility)], or that physical condition of the H or the W in w/c sexual
intercourse w/ a normal person of the opposite sex is impossible.
Impotence refers to lack of power to copulate, the absence of the functional capacity for the sexual act. The defect
must be lasting to be a ground for annulment. The test of impotence is not the capacity to reproduce, but the capacity
to copulate. (Sarao v. Gueverra.)
The refusal of the wife to be examined does not create the presumption of her impotency bec. Filipino girls are
inherently shy and bashful. The trial court must order the physical examination of the girl, bec. w/o proof of
impotency, she is presumed to be potent. To order her to submit to a physical examination does not infringe on her
constitutional right against self-incrimination (Sempio-Dy citing Jimenez v. Canizares, Aug. 31, 1960.)
Triennial Cohabitation - This doctrine provides that if the wife be a virgin and apt after 3 yrs. of cohabitation, the H
will be presumed to be impotent, and the burden will be upon him to overcome the presumption and does not
prevent impotency to be proved by another proper evidence.
Balane: Some commentators say that this disputable presumption is applicable in our jurisdiction.
The action on this ground is barred in the following cases:

(1) If the other party had knowledge of the incurable impotence bef. the M, bec. this would imply that he renounces
copulation, w/c is a personal right;
(2) If both spouses are impotent, and such impotence existed bef. the M, continues, and appears incurable, bec. in
this case an impotent pltff could not have expected copulation w/ the other spouse.
indicated herein:
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage.
f. Psychological Incapacity - Articles 36, 39
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization. (As amended by E.O. No. 227)
Provision is Taken from Canon Law - Par. 3 of Can 1095 of the New Code of Canon Law provides that:
Matrimonial Consent
The following are incapable of contracting marriage:

xxx
3. Those who, because of causes of a psychological nature, are unable to assume the essential obligations of
marriage.
The Committee decided to adopt par. 3 of the New Code of Canon Law as a ground for the declaration of nullity of
marriage for the following reasons:
(1) As a substitute for divorce;

(2) As a solution to the problem of Church-annulled marriages;
(3) As an additional remedy to parties who are imprisoned by a marriage that exists in name only as they have long
separated bec. of the inability of one of them to perform the essential obligations of marriage.
Psychological Incapacity Distinguished from Vice of Consent - Psychological incapacity is not a question of
defective consent but a question of fulfillment of a valid consent.
Psychological Incapacity Distinguished from Insanity - Mental incapacity or insanity of some kind, like physical
incapacity, is a vice of consent, while psychological incapacity is not a species of vice of consent.
Q: Why Were No Examples of Psychological Incapacity Given in this Article?

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

A: The Committee believes that there is no need to disqualify the psychologically incapacitated from contracting
another marriage bec. the fact of his psychological incapacity for marriage would be revealed anyway when he
applies for a marriage licence for the 2nd marriage, and the other party is thus placed on guard to conduct discreet
investigation about the matter.
General Characteristics of term "Psychological Incapacity": It must exhibit gravity, antecedence and incurability:
(1) Gravity, if the subject cannot carry out the normal and ordinary duties of marriage and family shouldered by any
average couple existing under ordinary circumstances of life and work;
(2) antecedence, if the roots of the trouble can be traced to the history of the subject before the marriage although its
overt manifestation appear only after the wedding; and
(3) incurability, if treatments required exceed the ordinary means of the subject, or involve time and expense beyond
the reach of the subject.
Q: Who can File the Action to Declare the Marriage Void?
A: Either party, i.e., even the psychologically incapacitated can file the action.
Q: What is the Status of the Children under this Article?

A: The children conceived or born before the decree of nullity of marriage are considered legitimate (Art. 54.)
SANTOS V. CA [240 SCRA 20 (1995)] - Meaning of "psychological incapacity" confined to the most serious
cases of personality disorders demonstrative of insensitivity or inability to give meaning and significance to the
marriage.
FACTS: On 9/20/86, Leouel Santos and Julia Rosario Bedia exchanged vows bef. a mun. trial judge of Iloilo City.
They lived w/ the wife's parents. One yr. later, a child was born of their marriage. Quarrels marred the marriage bec.
of frequent interference by Julia's parents. On 5/18/88, Julia left for the US to work as a nurse despite Leouel's pleas.
For the first time in 7 mos. Julia called him up by long distance promising to return home once her contract expires
in 1/89. She never did. When Leouel was in the US in 1990 to undergo a training program under the auspices of the
AFP, he tried to locate Julia, but to no avail. Hence this action in Negros Oriental, under Art. 36, FC. Summons was
served by publication. Julia opposed the complaint, claiming it was Leouel who had been irresponsible and
incompetent. But she filed a manifestation stating she would neither appear nor submit evidence. From an order of
the lower court dismissing the complaint for lack of merit, and the CA affirming said order, Leouel filed this petition
for certiorari.
HELD: It should be obvious, looking at all the disquisitions, including, and most importantly, the deliberations of
the FC Revision Committee itself, that the use of the phrase "psychological incapacity" in Art. 36 has not been
meant to comprehend all such possible cases of psychoses as, likewise mentioned by some ecclesiastical authorities,
extremely low intelligence, immaturity, and like circumstances. xxx Art. 36 cannot be taken and construed
independently of, but must stand in conjunction w/, existing precepts in our marriage law. Thus correlated,
psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the
marriage w/, as so expressed by Art. 68, FC includes their mutual obligations to live together, observe love, respect
and fidelity and render help and support. (Balane: This is a tentative definition of psychological incapacity.) There is
hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage. This psychological condition must exist at the time the marriage is
celebrated.
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. However, in
the case of marriages celebrated before the effectivity of this Code and falling under Article 36, such action or
defense shall prescribe in 10 years after this Code shall have taken effect. (As amended by E.O. No. 227)
Retroactivity of Art. 36 - By providing for a 10-yr prescriptive period for marriages of this nature solemnized bef.
the effectivity of the FC, the latter has actually given a retroactive effect to the present article.
We submit that this is a juridical mistake. It is like an ex post facto provision translated into the field of civil law. It
contravenes the provisions of Art. 255 w/c allows retroactivity of the FC provisions only when it does not impair or
prejudice vested or acquired rights.
g. Disease - Articles 45 par. 6, 47 par. 5
xxx
(6) That either party was afflicted with sexually-transmissible diseases found to be serious and appears to be
incurable.
Sexually-Transmissible Disease - Its requisites are:
(1) The disease must be sexually transmissible;
(2) The disease is found to be serious;
(3) It must be apparently incurable;
(4) The STD must exist at the time of the M;
(5) It was unknown to the other party when the M was solemnized; and
(6) the other party must himself/ herself be free from STD.
A marriage were either party was afflicted w/ STD may not be ratified by cohabitation. Cohabitation here may be
suicidal. Take note that there are two voidable marriages that cannot be ratified by ratification:
(1) voidable marriage bec. of impotence (here, there will be contradiction in terms; how can you cohabit if you are
impotent?);
(2) voidable marriage bec. of STD.
The reason for this cause for A is the danger to the health of the other spouse and offsprings, giving rise to
possibility of avoidance of sexual relations, and the failure to attain one of the purpose of M, that is, the procreation
of children and raising of a family.
indicated herein:
xxx
(5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party, within five years after the marriage.
4. Consent (an essential requisite) - Art. 2 par. 2
xxx
(1) Consent freely given in the presence of the solemnizing officer.
Mutual Consent - Such consent must be real, in the sense that it is not vitiated by mistake, duress, or fraud. It must
also be conscious or intelligent.
Effect of Mistake - Mistake as to the nature and legal consequences of the ceremony or as to the identity or the
person of one of the parties, renders the marriage void for lack of consent [see Art. 35(5).] But a marriage is not
invalidated by mistake as to rank, fortune, character or health, of one of the parties.
a. Insanity - Articles 45 par. 2, 47 par. 2
xxx
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other
as husband and wife;
Party of Unsound Mind - The test of unsoundness of mind is w/n the party at the time of the M was capable of
understanding the nature and consequences of the M. Insanity must exist at the time of the M, to make it void.
Somnambulism has the same effect as insanity.
Burden of Proof - The presumption of the law is generally in favor of sanity, and he who alleges the insanity of
another has the burden of proving it. But once general insanity is proved to exist, it is presumed to continue; and if a
recovery or a lucid interval is alleged, the burden to prove such allegation is on the person making it.
Ratification - This Art., in par. 2, gives the right of action to annul to the insane spouse and provides for ratification
after regaining reason. No right of action is given to the sane spouse; this is based on the assumption that he knew of
the insanity of the other party and is placed in estoppel. But if he did not know of such insanity at the time of the M,
he is given a right of action under Art. 47, par. 2, at any time before the death of the insane spouse.
indicated herein:
xxx
(2) For causes mentioned in number 2 of Article 45, by the sane spouse, who had no knowledge of the other's
insanity or by any relative or guardian or person having legal charge of the insane at any time before the death of
either party, or by the insane spouse during a lucid interval or after regaining sanity;
Where the sane spouse knew of the insanity of the other, he is estopped to seek annulment where he has lived w/ the
wife claimed to have been insane for several years and children have been born to them.
b. Fraud - Articles 45 par. 3, 46, 47 par. 3
xxx
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other as husband and wife;
Marriage through Fraud - The FC limits the cases w/c would constitute fraud sufficient for annulment of M to those
enumerated in Art. 46. Bec. of the enumeration, w/c must be considered as restrictive, no other case of fraud may be
admitted.
Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral
turpitude;
(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her
husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as
will give grounds for action for the annulment of marriage.
Conviction of Crime; Requisites:

(1) The crime involves moral turpitude and
(2) There has been a conviction.
Balane: To find what crimes involve moral turpitude, you go by decisions of the SC. Crimes against property are
generally considered crimes of moral turpitude.
Concealment of Pregnancy - Where a man has had sexual intercourse w/ his wife before the M, and she is pregnant
at the time of M, although he may not be the author of the pregnancy, the M will not be annulled. This is based on
the theory that there is no fraud, bec. the man knows his wife to be unchaste, as he was himself a party to her
premarital immorality.
Concealment of Diseases - Compared w/ Art. 45 (6):
(1) Under 45 (6), a STD is an independent cause for annulment. Under 46, concealment of a STD constitutes fraud
under par. 3.
(2) Under 45 (6), the STD existing at the time of the M must be found to be serious and appear to be incurable.
Under Art. 46 (3), the STD need not be serious or incurable. To be aground for A, it must have been "concealed" by
the sick party. It is the fraud that is the ground for A.
This difference has a very impt. consequence. If the disease falls under Art 45 (6), the M is not subject to ratification
by continued cohabitation. If the disease falls under Art. 46 (3), the ground for A is fraud, and the M is ratified under
par. 3 of Art. 45, if the spouse who is well, after knowing of the disease of the other, continues to cohabit w/ him or
her as H & W.
Effect of Cure - The recovery or rehabilitation will not bar the action. The defect of the M is not the disease,
addiction or alcoholism itself but the fraud w/c vitiated the consent of the other party.
Homosexuality - Sexual orientation is not enough. One has to be a practicing homosexual.
BUCCAT V. BUCCAT [72 P 19]
Where the wife was already 7 months pregnant, the petition to annul the marriage on the ground of fraud was
denied. Where there has been no misrepresentation or fraud, that is, when the husband at the time of the marriage
knew that the wife was pregnant, the marriage cannot be annulled. Here, the child was born less than 3 months after
the celebration of the marriage. We refuse to annul the marriage for the reason that the woman was at an advance
stage of pregnancy at the time of the marriage and such condition must have been patent to the husband.
ANAYA V. PALAROAN [36 S 97]
FACTS: Aurora Anaya prayed for the annulment of her marriage w/ Fernando Palaraon on the ground of fraud in
obtaining her consent - having learned that several mos. prior to their marriage, Fernando had pre-marital
relationship w/ a close relative of his. According to her the "non-divulgement to her of such pre-marital secret"
constituted fraud in obtaining her consent w/n the contemplation of no. 4 of Art. 85, NCC.
HELD: The non-disclosure to a wife by her husband of his pre-marital relationship w/ another woman is not a
ground for annulment of marriage. For fraud as a vice of consent in marriage, w/c may be a cause for its annulment,
comes under Art. 85, No. 4 of the NCC. This fraud, as vice of consent, is limited exclusively by law to those kinds
or species of fraud enumerated in Art. 86. The intention of Congress to confine the circumstances that can constitute
fraud as ground for annulment of marriage to the 3 cases therein may be deduced from the fact that, of all the causes
of nullity enumerated in Art. 85, fraud is the only one given special treatment in a subsequent article w/n the chapter
on void and voidable marriages. Its intention were otherwise, Congress would have stopped at Art. 85, for anyway,
fraud in general is already mentioned therein as a cause for annulment.
JIMENEZ V. CANIZARES [109 P 273 (1960)]
Where the husband filed a complaint for annulment of marriage on the ground of physical incapacity of his wife for
copulation, her genitals being too small for penetration, the sole testimony of the husband as to the incapacity of his
wife is not sufficient basis for annulment. The presumption is in favor of potency. Hence, the court ordered the wife
to submit to a physical examination. A physical examination in this case is not self- incriminating, since she is not
being charged of any crime.
PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)]
A marriage may be annulled even after one of the spouses has been convicted of adultery in violation of that
marriage.
indicated herein:
xxx
(3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after discovery of the
fraud;
xxx
This kind of marriage can be ratified by cohabitation for a reasonable period w/ may set in even before the 5-yr.
prescriptive period has expired.
c. Force, Intimidation, Undue Influence - Articles 45 par. 4, 47 par. 4
xxx
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
xxx
Force, Intimidation and Undue Influence - The definitions of "violence," "intimidation," and "undue influence" are
found in Arts. 1335 to 1337 of the NCC
Art. 1335. There is violence when in order to wrest consent, serious or irresistible force is employed.
There is intimidation when one of the contracting parties is compelled by a reasonable and well-grounded fear of an
imminent and grave evil upon his person or property, or upon the person or property of his spouse, descendants or
ascendants, to give his consent.
To determine the degree of intimidation, the age, sex and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim is just or legal, does not vitiate consent.
Art. 1336. Violence or intimidation shall annul the obligation, although it may have been employed by a third person
who did not take part in the contract.
Art. 1337. There is undue influence when a person takes improper advantage of his power over the will of another,
depriving the latter of a reasonable freedom of choice. The following circumstances shall be considered: the
confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been
unduly influenced was suffering from mental weakness, or was ignorant or in financial distress.
indicated herein:
xxx
(4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;
d. Mistake as to Identity - Articles 35 par. 5, 39
xxx
(5) Those contracted through mistake of one contracting party as to the identity of the other;
Mistake as to Identity - This refers to mistake as to the person himself, involving a substitution of another person for
the party who is desired in marriage, w/o the knowledge of the other contracting party.
Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. xxx
5. Authority of Solemnizing Officer - Articles 3 par. 1, 4 par. 1, 7, 10, 31, 32, 35 par. 2

(1) Authority of the solemnizing officer;
Q: Would a marriage void for want of authority of the solemnizing officer entered into under the NCC, now be
considered validated under the FC, if either or both parties believed in good faith that such officer had the legal
authority to solemnize the marriage?
A: Yes. Art. 255, FC provides: "This Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights in accordance w/ the NCC or other laws." The present FC may be given a curative or
remedial effect and validate the marriage in question.
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious
sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his
church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's
church or religious sect;
(3) Any ship captain or airplane chief only in the cases mentioned in Article 31;
(4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military
operation, likewise only in the cases mentioned in Article 32; or
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.
NOTE: Under the Local Government Code [Secs. 444 (b) (1) (xviii) & 455 (b) (1) (xviii)], mayors have again been
given the authority to solemnize marriages.
Members of the Judiciary - The jurisdiction of the members of the SC, the CA, the Sandiganbayan, and the Court of
Tax Appeals to solemnize marriages is the entire country, w/c is their territorial jurisdiction. The jurisdiction of the
RTC judges and judges of MTCs to solemnize marriages is their territorial jurisdiction as defined by the SC.
Requisites for Authority of Priest or Minister:

(1) He must be registered in the office of the Civ. Registrar General;
(2) he must have a written authority to solemnize marriages given by his church or religious sect;
(3) he must act w/n the limits of such authority; and
(4) at least one of the contracting parties must belong to the solemnizing officer's church or religious sect.
PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)]
A marriage performed by a minister whose authority to solemnize a marriage has expired is void ab initio.
Ship Captains, Airplane Chiefs, Military Commanders - These officers can solemnize only one kind of marriage - a
marriage in articulo mortis or at the point of death.
Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship
captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at
ports of call.
Art. 7 refers to an "airplane chief" but art. 31 refers to an "airplane pilot" who may not be the captain or chief. We
believe the controlling designation is "airplane chief." It is the head of the crew and who has the command of the
airplane who must be deemed to have been given by law the authority to solemnize marriages.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize
marriages in articulo mortis between persons within the zone of military operations, whether members of the armed
forces or civilians.
Consul-generals, Consuls, Vice-consuls - An ambassador, even if he is the head of a diplomatic mission, has no
authority to solemnize marriage. The reason for this is that, while an ambassador takes care of the relations bet. the
Phils. and the country to w/c he is assigned, the consuls take care of matters affecting Filipino citizens in the area of
their responsibility.
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul
of the Republic of the Philippines.
The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with
regard to the celebration of marriage shall be performed by said consular official.
xxx
(2) Those solemnized by any person not legally authorized to perform marriages unless church marriages were
contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to
do so;
xxx
6. Marriage License (a formal requisite.) - Articles 3 par. 2, 4 pars 1 & 3, 35 par. 3, 9 to 21 with exceptions in 27 to
34
xxx
(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title;
xxx
xxx
An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly, criminally and administratively liable.
COSCA V. PALAYPAYON, JR. [237 S 249 (1994)]
FACTS: Complainants allege that respondent judge solemnized marriages even w/o the requisite marriage license.
Thus, several couples were able to get married by the simple expedient of paying the marriage fees to resp. Baroy,
Clerk of Court II of the Mun. Trial Court of Tinambac, Camarines Sur, despite the absence of a marriage license. As
a consequence, their marriage contracts did not reflect any marriage license. In addition, resp. Judge did not sign
their marriage contracts and did not indicate the date of solemnization the reason being that he allegedly had to wait
for the marriage license to be submitted by the parties w/c was usually several days after the ceremony. Indubitably,
the marriage contracts were not filed w/ the local civil registrar.
HELD: On the charge regarding illegal marriages, the FC pertinently provides that the formal requisites of marriage,
inter alia, a valid marriage license except in the cases provided for therein. Complementarily, it declares that the
absence of any of the essential or formal requisites shall generally render the marriage void ab initio and that, while
an irregularity in the formal requisites shall not affect the validity of the marriage, the party or parties responsible for
the irregularity shall be civilly, criminally and administratively liable.
xxx
(3) Those solemnized without license, except those falling under Article 41;
xxx
REPUBLIC V. CA [236 SCRA 257 (1994)] - The certification by the Civil Registrar that the alleged marriage
license could not be found in his records is adequate to prove that no license was issued.
FACTS: Angelina Castro and Edwin Cardenas were married in a civil ceremony in the city court of Pasay w/o the
knowledge of Angelina's parents. The marriage lasted only for a couple of mos. Angelina decided to migrate to the
US but wanted to put in order her marital status bef. leaving. She consulted a lawyer regarding the possible
annulment of her marriage. It was discovered that there was no license issued to Cardenas by the Civil Registrar of
Pasig. The Civil Registrar certified that the alleged license no. does not appear from the records. The trial court
denied the petition. The CA reversed the trial court, hence, this petition for review on certiorari.
HELD: The presentation by the Civil Registrar is sanctioned by Sec. 29, R 132, ROC. The certification of due
search and inability to find, issued by the civil registrar of Pasig, enjoys probative value, he being the officer
charged under the law to keep a record of all data relative to the issuance of a marriage license. Unaccompanied by
any circumstance of suspicion, and pursuant to Sec. 29, R 132 of ROC, a cert. of due search and inability to find
sufficiently proved that his office did not issue the marriage license. There being no marriage license, the marriage
of Angelina and Edwin is void ab initio.
(1) Where to apply - Arts 9-10

.
Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either
contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2
of this Title.
The solemnizing officer is not required to investigate WON the license was issued in the place required by law.
(Peo. v. Jansen 54 P 176.)
Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul- general, consul or vice-consul
of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and
of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.
"Filipinos citizens abroad" may mean Filipinos permanently residing abroad or who are mere transients or
vacationists there.
Consuls on home assignment in the Phils. cannot solemnize marriages.
Salonga, Private International Law II, 1995 ed. (hereinafter Salonga): Consular Marriages - xxx The prevailing rule
is that a marriage performed before a consular or diplomatic agent empowered by a sending State to officiate
marriages is valid in the receiving State only if the latter has agreed to his acting in that capacity.
(2) Requirements for issuance

(a) application - Art. 11
Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application
for such license with the proper local civil registrar which shall specify the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil Status;
(5) If previously married, how, when and where the previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has
neither father nor mother and is under the age of 21 years.
The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality
in connection with the securing of the marriage license.
(b) Proof of capacity - Articles 12-14; Art. 21
Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth
certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents
duly attested by the persons having custody of the originals. These certificates or certified copies of the documents
required by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature
and official title of the person issuing the certificate shall be sufficient proof of its authenticity.
If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either
because of the destruction or loss of the original, or if it is shown by an affidavit of such party or of any other person
that such birth or baptismal certificate has not been received though the same has been required of the person having
custody thereof at least 15 days prior to the date of the application, such party may furnish in lieu thereof his current
residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public
official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of
lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents,
if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be
preferred as witnesses, or in their default, persons of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be required if the 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.
Documents Required - To prove the ages of the contracting parties, the ff. may be required by the local civ. registrar:
(1) Original or certified copies of birth certificates.
(2) In the absence of birth certs., the original or certified copies of baptismal certs.
(3) In the absence of the above documents, the party may present his residence cert. or the affidavit of 2 witnesses.
When Proof of Age Dispensed With:

(1) When the parents of the contracting parties appear personally bef. the local civ. reg. and swear to the correctness
of their ages;
(2) When the local civ. reg. is convinced, by merely looking at the parties that they have the required ages;
(3) When a party has formerly married, but is widows, or divorced, or the previous marriage has been invalidated.
(see art. 13.)
Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to
furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the
deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an
affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the
deceased persons.
Art. 14. In case either or both of the contracting parties, not having been 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 in writing by the interested
party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the
presence of two witnesses and attested before any official authorized by law to administer oaths. The personal
manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed
instead, shall be attached to said application.
Reason for parental consent - The parental consent of parties below 21 years is required in order to supplement the
natural incapacity of such parties, whose inexperience may lead them to a union w/c is difficult or prejudicial for
them.
Effect of Previous Marriage - A person below 21 who has been previously married, but whose marriage has
terminated by the death of the spouse does not need parental consent to remarry even if he or she is still below 21.
Effect of RA 6809 - The reduction of the age of majority and emancipation does not affect the requirement of the
present article, w/ respect to persons who have living parents.
Q: But when the person over 18 yrs. but below 21 yrs. is an orphan, not otherwise incapacitated, he cannot be placed
under guardianship and would have nobody "having legal charge" of him. Whose consent will be required?
A: In view of the impossibility of compliance, it seems that "parental consent" need not be secured.
A widowed mother who has remarried retains her parental authority over her children (art. 212, FC), and thus, her
consent is still required for the marriage of a child below 21 yrs. old.
Specific Consent Required - The better view xxx is that the consent must refer to marriage w/ a particular person.
The law intends that the child should benefit from the experience of the parent, and that the latter save the former
from what may be an unwise union.
Form of Consent - It must be in writing.

It may be made in either of 2 ways:
(1) by the parent personally appearing bef. the local civ. reg. and signing the instrument of consent, or
(2) by executing an affidavit of consent in the presence of 2 witnesses w/o having to appear bef. the local civ. reg.
Revocation of Consent - Once consent has been given and the proper license issued, it should be irrevocable except
for cause. To allow its revocation, w/o any reason is to subject the effectivity of the license issued by the govt to the
whim and caprice of the parent. We believe, however, that revocation for just cause must be made known to the
parties and to the local civ. reg. to have any effect.
Effect of Want of Consent - Aside from the civil sanction of nullity of the marriage, there is also a penal sanction. If
the parties knowingly entered into the marriage w/o parental consent, or the solemnizing officer has celebrated it
knowing of such absence when it was needed, they will become subject to the penal consequences imposed by Act
No. 3613 and the RPC.
EIGENMAN V. GUERRA [5 C.A. Rep. 836 (1964)] - Parental consent may be made expressly or impliedly, such
as by the presence of the mother during the marriage ceremony, without any objections.
Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them
before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by
their respective diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required,
submit an affidavit stating the circumstances showing such capacity to contract marriage.
The legal capacity of a foreigner to marry is recognized by our laws as governed by the law of the country of w/c he
is a citizen. This is in accordance w/ the nationality theory of personal laws w/c is followed by the Phils.
Q: What is the legal capacity of a stateless person?

A: Having no personal law of his own, since he owes no allegiance to any particular country, his legal capacity
should be determined by the laws of the Phils. under w/c he temporarily enjoys protection. The provisions of the FC
apply to him.
The net effect of Art. 21 is to leave it to the Govt of the alien to decide almost conclusively the question of WON he
or she can marry in the Phils. It is the interpretation of that Govt through its diplomatic or consular officials, that is
controlling, except where the M is bigamous or universally incestuous. Any abuse of that discretion is a matter w/c
the alien must take up w/ his own Govt.
Q: Suppose, however, that, w/o such a cert., the marriage is solemnized. Is the marriage valid?
A: Yes. The M should be considered as valid, assuming that the lack of cert. is the only defect. It is not one of the
void marriages enumerated in the NCC (now the FC); the cert. of legal capacity is not an essential requisite of
marriage.
(c) Parental advice - Art. 15
Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or
guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the
marriage license shall not be issued till after three months following the completing of the publication of the
application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be attached to the application for marriage license. Should the
parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.
Effect of Emancipation - The need for parental advice depends on filial relationship and not on parental authority.
Q: When the child is an orphan over 21 but below 25 yrs. old, he would be emancipated and cannot be under the
authority of a guardian. Who will give the parental advice in such a case?
A: The solution may be anomalous, but it seems that such advice is dispensed w/, due to impossibility of
compliance.
(d) Marriage Counseling - Art. 16

Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in
addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam, or minister
authorized to solemnize marriage under Article 7 of this Code or a marriage counselor duly accredited by the proper
government agency to the effect that the contracting parties have undergone marriage counseling. Failure to attach
said certificate of marriage counseling shall suspend that issuance of the marriage license for a period of three
months from the completion of the publication of the application. Issuance of the marriage license within the
prohibited period shall subject the issuing officer to administrative sanctions but shall not affect the validity of the
marriage.
Should only one of the contracting parties need parental consent or parental advice, the other party must be present
at the counseling referred to in the preceding paragraph.
Marriage Counseling - Both of the intended spouses are required to undergo marriage counseling if one or both of
them are bet. 18 and 25 yrs. of age. It is intended to prepare the youth for entering into the married state, w/
instructions on the responsibilities of the future couple to each other, to their children, and to society.
(e) Publication - Art. 17
Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the
applicants for marriage license and other data given in the applications. The notice shall be posted for ten
consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place
within the building and accessible to the general public. This notice shall request all persons having knowledge of
any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after
the completion of the period of publication.
(f) Investigation of Impediments - Art. 18
Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down
the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue
said license after the completion of the period of publication, unless ordered otherwise by a competent court at his
own instance or that of any interested party. No filing fee shall be charged for the petition nor a corresponding bond
required for the issuance of the order.
(g) Payment of fees - Art. 19
Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the
issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the
issuance of said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no
visible means of income or whose income is insufficient for their subsistence, a fact established by their affidavit, or
by their oath before the local civil registrar.
(h) Family Planning certificate - PD 965
(3) Place where valid - Art. 20
Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the
date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties
have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued.
The automatic cancellation of the license is not a mere irregularity or defect; the license is non-existent. The
marriage is void ab initio.
(4) Period of validity - Art. 20, supra.
(5) Duties of the Civil Registrar - Articles 24-25

Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to
administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in
connection with applications for marriage licenses shall be exempt from documentary stamp tax.
Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a
registry book strictly in the order in which the same are received. He shall record in said book the names of the
applicants, the date on which the marriage license was issued, and such other data as may be necessary.
PEOPLE V. DAVID [13 CA Rep. 495 (1968)] - Official Receipt of the Local Civil Registrar due to lack of the
regular form may be considered as a valid license.
(6) When no license needed - Articles 27-34
Chapter 2
MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT
Marriages of Exceptional Character - It is one on w/c the law considers of such a nature as to dispense w/ the formal
requirement of a marriage license.
The marriages exempted from the requirement of a marriage license are:

(1) marriages in articulo mortis or on the point of death,
(2) marriages in isolated places, or where there are no available means of transportation,
(3) marriages among Muslims or among members of ethnic cultural communities, and
(4) marriages of those who have lived together as husband and wife for at least 5 yrs.
Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized
without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives.
Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to
appear personally before the local civil registrar, the marriage may be solemnized without the necessity of a
marriage license.
Art. 29. In the cases provided for in the two preceding articles, the solemnizing officer shall state in an affidavit
executed before the local civil registrar or any other person legally authorized to administer oaths that the marriage
was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located
that there is no means of transportation to enable such party to appear personally before the local civil registrar and
that the officer took the necessary steps to ascertain the ages and relationship of the contracting parties and the
absence of a legal impediment to the marriage.
Art. 30. The original of the affidavit required in the last preceding article, together with a legible copy of the
marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality
where it was performed within the period of 30 days after the performance of the marriage.
Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship
captain or by an airplane pilot not only while the ship is at sea or the place is in flight, but also during stopovers at
ports of call.
Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize
marriages in articulo mortis between persons within the zone of military operations, whether members of the armed
forces or civilians.
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly
without the necessity of marriage license, provided that they are solemnized in accordance with their customs, rites
or practices.
Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband
and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal
impediment to the marriage.
This art. intends to facilitate and encourage the marriage of persons who have been living together in a state of
concubinage for more than 5 yrs. The publicity and other attendant inconveniences in securing the marriage license,
might be embarrassing to such persons and deter them from legalizing their union. The marriage of the parties will
result in the legitimation of natural children born to them during their cohabitation.
Note: The fact of absence of legal impediment bet. the parties must be present at the time of the marriage, not during
their 5-yr. cohabitation.
II. EFFECT OF LACK OF REQUISITES
A. 1. Difference in sex.- lack of it: void

2. Some form of ceremony - lack of it: void
3. Legal capacity - Lack of it - General rule: void
Exception: Age - Art. 45 par. 1
Impotence - Art. 45 (5), voidable
Disease - Art. 45 (6), voidable
4. Lack of consent voidable
Except: Mistake as to identity - void [Art. 35 (5)]
5. Authority of solemnizing officer - lack of it: void
Except: Art. 45 (1)
6. Marriage License - lack of it: void
Exceptions: Articles 27-34, supra.
Chapter 3
VOID AND VOIDABLE MARRIAGES
A defective marriage in this country is either void or voidable. A voidable marriage produces the effect of a valid
marriage, until annulled.
Void Marriages
The following marriages are void in spite of their omission from the enumeration contained in articles 35 to 38:
(1) Marriages where intent to marry is totally wanting (e.g., marriage in jest.);
(2) Marriages not solemnized in accordance w/ law (e.g., marriages by proxy);
(3) Marriages bet. persons of the same sex.
Void and Voidable Marriages Distinguished - Fundamental distinction - A void marriage is deemed never to have
taken place at all, while a voidable or annullable marriage is considered valid and subsisting until it is set aside by a
competent court. The following distinctions arise from this general difference:
(1) A void M can be attacked collaterally, while a voidable M can be attacked only in a direct proc. for annulment;
(2) A void M may be questioned even after the death of one of the parties, while a voidable M can no longer be
attacked after one of the parties is dead;
(3) A void M cannot be ratified or confirmed, while a voidable M is generally made perfectly valid by ratification or
confirmation, through continued cohabitation;
(4) the validity of a void M may be assailed by any one if the question becomes material, while an annullable M can
generally be attacked only by a party to it; and
(5) the action or defense to declare the nullity of a void M generally does not prescribe, while the action to set aside
a voidable M prescribes.
Effect of Void Marriages:
On property Relations - A community prop. or conjugal partnership is formed, and is dissolved and liquidated upon
the declaration of nullity, but if either spouse contracted the marriage in BF, his or her share is forfeited in favor of
the children or the innocent spouse, as the case may be. [see Art. 43(2)]
Status of Children - Such children are considered legitimate. (Art. 54.)
Effects of Voidable Marriages - A voidable marriage is valid and produces all its civil effects, until it is set aside by
judgment of a competent court in an action for annulment.
xxx
Under the FC, the rule applicable to marriages void from the beginning applies to voidable marriages. (see Art. 50,
FC. )
As to children born in voidable marriages, the NCC and the FC have the same rule; the children are legitimate.
Action to Annul Marriage - Annulment of M is an action in rem, for it concerns the status of the parties, and status
affects or binds the whole world. The res is the relation bet. the parties, or their marriage tie.
Annulment and Legal Separation Distinguished:

(1) Annulment - (A) is caused by some circumstance existing at the time of the M, while the cause of legal
separation (LS) arises after the celebration of the M;
(2) an A of M terminates the marital bond bet. the parties while LS does not; and
(3) A of M, once final, cannot be set aside so as to restore the marital relation, while LS may be terminated and
marital relations resumed by the reconciliation of the parties.
Ratification of Voidable Marriage - The law does not fix a definite period during w/c this cohabitation should last in
order to constitute ratification. It is submitted that when the cohabitation has continued for such a length of time,
after the cause of nullity has ceased to exist, as to give rise to a reasonable inference that the party entitled to bring
the action for nullity prefers to continue w/ the M, there is ratification w/c purges the M of its original defect.
Ratification refers to the right of action itself; prescription refers only to the remedy. There can be no remedy where
there is no more right of action.
Marriages Not Subject to Ratification (the law does not provide for their ratification):
(1) Where one of the spouses is incurably impotent;
(2) Where one of the spouses has an incurable sexually transmissible disease;
The defect of the M in these 2 cases is not one that merely affects consent. Ratification cures a defect in consent; it
cannot cure a physical defect.
The action to annul in these cases will exist as long as the period of prescription has not expired.
(3) A marriage where a sane spouse marries an insane spouse w/o the knowledge of the insanity. Although the
insane spouse can ratify the M after recovering reason, the sane spouse cannot be barred from asking for A even if
he has continued to cohabit w/ the insane spouse after learning of such insanity.
III. EFFECT OF DEFECTIVE MARRIAGES ON STATUS OF CHILDREN - Articles 54, 165
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under
Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be legitimate.
Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this
Code. (referring to Art. 54.)
General rule: Children of voidable marriage are legitimate.

Children conceived and born of a void marriage are illegitimate. There are two exceptions (Art. 54):
1. Art. 36
2. Art. 53
IV. PRIMARY PROOF OR EVIDENCE OF MARRIAGE - Articles 22, 23
Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife,
shall also state:
(1) The full name, sex, and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2
of this Title;
(5) That either or both of the contracting parties have secured the parental consent in appropriate cases;
(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice
in appropriate cases; and
(7) That the parties have entered into marriage settlements, if any, attaching a copy thereof.
The marriage cert. is not an essential or formal requisite of marriage w/o w/c the marriage will be void. (Madridejo
v. De Leon, 55 P 1.). An oral marriage is, thus, valid, and failure of a party to sign the marriage cert. (De Loria v.
Felix, 104 P) or the omission of the solemnizing officer to send a copy of the marriage cert. to the proper local civil
registrar (Pugeda v. Trias, 4 S 49) does not invalidate the marriage.
Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the
original of the marriage certificate referred to in Art. 6 and to send the duplicate and triplicate copies of the
certificate not later than 15 days after the marriage, to the local civil registrar of the place where the marriage was
solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies
of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage
certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding
the solemnization of the marriage in a place other than those mentioned in Art. 8.
The best proof of the marriage is the marriage certificate. But this is not the only proof. The declaration of one of the
parties to the marriage, as well as of persons who were present at its celebration, are competent proof of the
marriage. Public and open cohabitation as H & W after the alleged marriage, birth and baptismal certificates of
children borne by the alleged spouses, and a statement of such marriage in subsequent documents are likewise
competent evidence to prove the fact of marriage.
There is a prima facie presumption that a man and a woman living maritally under the same roof are legally married.
The reason is that such is the common order of society, and if the parties were not what they hold themselves out as
being, they would be living in the constant violation of decency and law. (Perido v. Perido, 63 S 97, 98.)
Remember that even if no one receives a copy of the marriage cert., the marriage is still valid. (Jones v. Hortiguela,
64 P 179.)
LORIA V. FELIX [104 P 1 (1958)]
The signing of the marriage contract is a formal requirement of evidentiary value, the omission of which does not
render the marriage a nullity. "The signing of the marriage contract or certificate was required by statute simply for
the purpose of evidencing the act and to prevent fraud. No statutory provision or court ruling has been cited making
it an essential requisite - not the formal requirement of evidentiary value, which we believe it is. The fact of
marriage is one thing; the proof by which it may be established is quite another."
V. ACTION OF ANNULMENT OR DECLARATION OF NULLITY - Articles 48 to 52
Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties
and to take care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or
confession of judgment.
If the parties succeed in obtaining a decree of annulment by collusion notwithstanding observance of the provisions
of this Art., such decree must be held to be absolutely void if no cause really existed. It would be against public
policy.
Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between
the spouses, the Court shall provide for the support of the spouses and the custody and support of their common
children. The Court shall give paramount consideration to the moral and material welfare of said children and their
choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate
visitation rights of the other parent.
TOLENTINO V. VILLANUEVA [56 S 1 (1974)] - Where the husband filed a case for annulment on the ground of
concealment of pregnancy, and the wife failed to file a responsive pleading, the court referred the case to the fiscal
for investigation. However, the husband refused to show his evidence nor be interrogated by the fiscal, hence, the
court correctly dismissed the complaint for annulment. The investigation of the fiscal is a prerequisite to the
annulment of marriage where defendant has defaulted.
JOCSON V. ROBLES [22 S 521 (1968)] - Where the second wife filed an action for annulment, and the husband
also assailed the validity of the marriage claiming he was coerced to marry her by her parents and brothers, and filed
a motion for summary judgment supported by affidavits of the plaintiff's father and brothers to this effect, and the
plaintiff also submitted the case for judgment on the pleadings, the court correctly denied the motion for summary
judgment in view of provisions of the Civil Code expressly prohibiting the rendition of a decree of annulment of
marriage upon a stipulation of facts or a confession of judgment. The affidavits of the wife's father and brothers
practically amounts to these methods not countenanced by the Civil Code.
VILLAROMAN V. ESTEBAN [73 O.G. 11736 (1976)]
(1) The principle of estoppel cannot apply to defeat a suit for annulment of marriage on the ground that plaintiff was
not of age when he contracted marriage, since the ages of the contracting parties which require parental consent,
cannot be modified or altered by their joint act or omission or by that of either of them.
(2) Staying with the wife in her residence only on Saturdays and Sundays merely indicates transient sexual
intercourse which is not considered as cohabitation. This circumstance and the conduct of the man in abandoning his
wife before reaching the age of majority or according to the wife's version, 9 months after attaining legal age,
negates the intention on the part of the man to confirm or ratify a defective marriage by cohabiting and living with
the woman as her husband.
Effect of Annulment
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by Article 44 shall also apply
in the proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40
and 45.
The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless
such matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the
proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated shall be adjudicated in accordance with the
provisions of Articles 102 and 129.
effects:
xxx
are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse.
(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent
spouse by testate and intestate succession.
Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by
operation of law.
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely
of a final judgment declaring such previous marriage void.
(1) That the party in whose behalf it is sought to have the marriage annulled was 18 years of age but below 21, and
the marriage was solemnized without the consent of the parents, guardian or person having substitute parental
authority over the party, in that order, unless after attaining the age of 21, such party freely cohabited with the other
and both lived together as husband and wife;
(2) That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other
and both lived together as husband and wife;
(3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the
facts constituting the fraud freely cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of consummating the marriage with the other, and such incapacity
continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be
incurable.
Art. 102. Upon dissolution of the absolute community regime, the following procedures shall apply:
xxx
(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot
on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said
children.
Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:
xxx
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise
agreed upon by the parties, be adjudicated to the spouse with whom the majority of the common children choose to
remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of said
children.
Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of
the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already provided for such matters.
The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate successional
rights of the children accruing upon the death of either or both of the parents; but the value of the properties already
received under the decree of annulment or absolute nullity shall be considered as advances on their legitime.
NOTE: The word 'delivered' in par. 1 is wrong according to DLC as it is violative of Art. 777; it is contrary to
principles of succession.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the
properties of the spouses, and the delivery of the children's presumptive legitimes shall be recorded in the
appropriate civil registry and registries of property; otherwise, the same shall not affect their persons.
Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be null and void.
Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under
Article 36 has become final and executory, shall be considered legitimate. Children conceived or born of the
subsequent marriage under Art. 53 shall likewise be legitimate.
Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes
manifest only after its solemnization.
Effects of the Setting Aside of all Defective Marriages (whether they are void ab initio, or voidable, or a subsequent
marriage terminated upon reappearance of a spouse presumed to be dead):
(1) There will be a liquidation, partition, and distribution of the properties of the spouses.
Liquidation involves the inventory of the properties and payment of the obligations of the spouses and of the
marriage.
Partition is the process in w/c the remaining properties will be divided into the various portions to be allocated to all
the parties.
Distribution is the delivery to the spouses and the children, in the proper cases, of the shares or properties allocated
to them respectively in the partition.
(2) In determining the share of each spouse in the properties of the M, the properties, or their value, that had been
donated in consideration of M by the innocent spouse to the spouse in BF, shall be revoked by operation of law and
returned to the innocent spouse to become part of his distributable prop.
(3) The children conceived or born bef. the judgment becomes final are considered legitimate. The judgment shall
provide for their custody and support. Their presumptive legitime from each parent (as if the parent died and they
inherit from him or her on the date of final judgment) shall be delivered to them in cash, prop. or securities.
(4) The innocent spouse may revoke the designation of the spouse in BF as beneficiary in the former's life insurance
policy.
(5) The spouse in BF shall be disqualified to inherit from the innocent spouse even under a will or testament.
(6) The conjugal dwelling and the lot on w/c it is built will be given to the spouse w/ whom the common children
choose to remain, unless the parties agree otherwise.
(7) If both spouses acted in BF, all donations by reason of M from one to the other, and all testamentary provisions
made by one in favor of the other, are revoked by operation of law.
(8) The judgment, the partition and distribution of the prop. of the spouses, and the delivery of the children's
presumptive legitimes shall be recorded in the appropriate civil registry.
(9) After all the foregoing, the former spouses are free to marry again; otherwise, the subsequent M shall be void.
Liability for Damages -It is submitted that in an appropriate case, damages may be recovered by an injured party
from another responsible for the nullity of a void or voidable marriage. The basis of the liability will be the
commission of an unlawful act or BF. Arts. 20 and 21 of the NCC can serve as the legal basis for an action for
damages.
VI. STATUS OF FOREIGN MARRIAGES - Art. 26
Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country, where
they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under
Articles 35 (1), (4), (5) and (6), 36, 37, 38.
xxx.
Art. 35 (1) - below 18
(4) - bigamous or polygamous
(5) - mistake as to identity
(6) - non-registration with the LCR of the ff:
- judgment of annulment or absolute nullity of the marriage
- partition and distribution of properties of the spouses
- delivery of the children's presumptive legitimes
Art. 36 - psychological incapacity
Art. 37 - incestuous marriages
Art. 38 - marriages that are void as against public policy
If the marriage w/c is solemnized abroad is void under Phil. law, it is considered void in the Phils.
Exceptions: Art. 35, paragraphs 2 and 3.
Jovito Salonga, Private International Law II, 1995 ed. (hereinafter Salonga):
Philippine Law on Formal Validity - Phil. law adheres to the imperative rule: a marriage formally valid where
celebrated is valid elsewhere (the maxim locus regit actum is applied compulsorily; the law of the place of
celebration, the lex loci celebrationis, is solely decisive.) Par. 1 of Art. 17, NCC embodies the maxim locus regit
actum: "The forms and solemnities of contracts, wills, and other public instruments, shall be governed by the laws of
the country in w/c they are executed."
To establish a valid foreign marriage, 2 things must be proven, namely,

(1) the existence of the foreign law as a question of fact; and
(2) the alleged foreign marriage by convincing evidence. (Yao Kee v. Sy-Gonzales, supra.)
Marriage by Proxy - Proxy marriages, where permitted by the law of the place where the proxy participates in the
marriage ceremony, are entitled to recognition in countries adhering to the lex loci celebrationis rule, at least insofar
as formal validity is concerned. Marriage by proxy abroad affects formal requisite only. It can be argued as valid.
Philippine Law on Substantive Validity - w/ reference to marriages celebrated abroad, Phil. law primarily refers to
the law of the place of celebration. The general rule expressed in the formula "valid where celebrated, valid
everywhere" admits of at least 2 exceptions:
(1) in the case of Filipino nationals who marry abroad before Phil. consular or diplomatic officials;
(2) in the saving clause of Art. 26 par. 1.
Art. 26 par. 1 of the FC is a domestic, internal rule applicable only to Filipino nationals. However, universally
incestuous marriages - such as those bet. parents and children or bet. brothers and sisters - will be considered void
here, whatever may be the nationality of the spouses.
As a general rule, a marriage should be upheld if valid according to the law of the place of celebration, unless the M
itself or the enjoyment of the incidents of the marital relationship would offend the strongly-held notions of decency
and morality of a State that has a close relationship to the contracting parties.
Art. 26. xxxWhere a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine law. (n) (as amended by E.O. 227, dated July 17, 1987.)
This is the only instance where we recognized foreign divorce.
Take note that the requirements in Art. 52 need not be complied w/ because there is no such requirement in Art. 26,
par. 2.
Requisites - There are four requisites for this Article to apply:

1. The marriage must be one between a Filipino and a foreigner
2. Divorce is granted abroad.
3. Divorce must have been obtained by the alien spouse
4. Divorce must capacitate the alien spouse to remarry.
Q: Suppose the foreign spouse was a former Filipino citizen. Does the law require that the foreign spouse was
already a foreigner at the time the marriage was contracted?
A: There is no Supreme Court ruling on this. But a 1993 DOJ opinion tells us that Art. 26 does not require that the
alien spouse was already a foreigner at the time of the marriage.
Art. 26 par. 2 applies to a situation where the alien spouse was the one who obtained the divorce decree abroad
capacitating him or her to remarry, in w/c case the Filipino spouse shall likewise have the capacity to remarry.
This rule seems to place a Filipino citizen on a plane of inequality. The reason for this is that our law does not allow
the Filipino to seek a foreign divorce, hence, if he obtains one, it is not recognized in the Phils. He is subject to the
Phil. law on status, wherever he goes.
VAN DORN V. ROMILLO [139 S 139 (1985)] - According to Baviera, the second paragraph of Art. 26 was
brought about by the case of Van Dorn v. Romillo, where the court held that an American husband granted absolute
divorce in his country is estopped from asserting his rights over property allegedly held in the Philippines as
conjugal property by him and his former wife. To maintain, as the husband does, that under our laws, the wife has to
be considered still married to him and still subject to a wife's obligation under the Civil Code cannot be just.
Petitioner wife should not be obliged to live together with, observe respect and fidelity, and render support to her
husband. The husband should not continue to be one of her heirs with possible rights to conjugal property. SHE
SHOULD NOT BE DISCRIMINATED AGAINST IN HER OWN COUNTRY IF THE ENDS OF JUSTICE ARE
TO BE SERVED.
MUSLIM CODE - P.D. 1083
Art. 13. (1) Application. The provisions of this Title shall apply to marriage and divorce wherein both parties are
Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in accordance with Muslim
law or this Code in any part of the Philippines.
(2) In case of a marriage between a Muslim and non-Muslim, solemnized not in accordance with Muslim law or this
Code (Muslim Code), the Civil Code of the Philippines shall apply.
Art. 29. (1) (Subsequent Marriage) By divorcee - (1) No woman shall contract a subsequent marriage unless she has
observed an idda of three monthly courses counted from the date of divorce. However, if she is pregnant at the time
of the divorce, she may remarry only after delivery.
PENAL SANCTIONS - ACT 3613, The Marriage Law, Secs. 30-42
Sec. 30-36. Superseded by New Civil Code, Now Title I, FC
Sec. 37. Influencing parties in religious respects. - Any municipal secretary or clerk of the Municipal Court (now
Local Civil Registrar), who directly or indirectly attempts to influence any contracting party to marry or refrain from
marrying in any church, sect, or religion or before any civil authority, shall be guilty of a misdemeanor and shall,
upon conviction thereof, be punished by imprisonment for not more than one month and a fine of not more than two
hundred pesos.
Sec. 38. Illegal issuance or refusal of license. - Any municipal secretary (now Local Civil Registrar) or clerk of the
Municipal Court of Manila (Local Civil Registrar) who issues a marriage license unlawfully or who maliciously
refuses to issue a license to a person entitled thereto or fails to issue the same within twenty-four hours after the time
when, according to law, it was proper to issue the same, shall be punished by imprisonment for not less than one
month nor more than two years, or by a fine of not less than two hundred pesos nor more than two thousand pesos.
Sec. 39. Illegal solemnization of marriage. - Any priest or minister solemnizing marriage without being authorized
by the Director of the Philippine National Library (now Director of National Library) or who, upon solemnizing
marriage, refuses to exhibit his authorization in force when called upon to do so by the parties or parents,
grandparents, guardians, or persons having charge; and any bishop or officer, priest, or minister of any church,
religion or sect the regulations and practices whereof require banns or publications previous to the solemnization of
a marriage in accordance with section ten (superseded by Art. 60, New Civil Code, now under Art. 12, EO No. 209,
as amended), who authorizes the immediate solemnization of a marriage that is subsequently declared illegal; or any
officer, priest or minister solemnizing marriage in violation of the provisions of this act, shall be
punished by imprisonment for not less than one month nor more than two years, or by a fine of not less than two
hundred pesos nor more than two thousand pesos.
Sec. 40. Marriages in improper places. - Any officer, minister, or priest solemnizing marriage in a place other than
those authorized by this Act, shall be punished by a fine of not less than twenty five pesos nor more than three
hundred pesos, or both, in the discretion of the court.
Sec. 41. Failure to deliver marriage certificate. - Any officer, priest or minister failing to deliver to either of the
contracting parties one of the copies of the marriage contract or to forward the other copy to the authorities within
the period fixed by law for said purpose, shall be punished by imprisonment for not more than one month or by a
fine of not more than three hundred pesos, or both, in the discretion of the court.
Sec. 42. Affidavit on marriage "in articulo mortis." - Any officer, priest, or minister who, having solemnized a
marriage in articulo mortis or any other marriage of exceptional character, shall fail to comply with the provisions of
Chapter II of this Act (Chapter 2, Title III, New Civil Code, now Title I, Family Code), shall be punished by
imprisonment for not less than one month nor more than two years, or by a fine of not less than three hundred pesos
nor more than two thousand pesos, nor both, in the discretion of the court.
Sec. 43. Unlawful signboards. - Any person who, not being authorized to solemnize marriage, shall publicly
advertise himself, by means of signs or placards placed on his residence or office or through the newspapers, as
authorized to solemnize marriage, shall be punished by imprisonment for not less than one month nor more than two
years, or by a fine of not less than fifty pesos nor more than two thousand pesos, or both, in the discretion of the
court.
Sec. 44. General penal clause. - Any violation of any provision of this Act not specifically penalized, or of the
regulations to be promulgated by the proper authorities, shall be punished by a fine of not more than two hundred
pesos or by imprisonment for not more than one month, or both, in the discretion of the court.
Sec. 45. Disqualification of priests and ministers. - Any priest or minister of the gospel or any denomination, church,
sect, or religion convicted of the violation of any of the provisions of this Act or of any crime involving moral
turpitude, shall, in addition to the penalties incurred in each case, be disqualified to solemnize marriage for a period
of not less than six months nor more than six years at the discretion of the court. (As amended by Act No. 4236).
V. LEGAL SEPARATION
Divorce and Its Kinds - Divorce is the dissolution or partial suspension, by law, of the marital relation; the
dissolution being termed divorce from the bond of matrimony, or a vinculo matrimonii; the suspension being known
as divorce from bed and board, or a mensa et thoro. The former is sometimes also called absolute, and the latter
relative divorce.
Legal Separation and Separation of Property - In the former, there is a suspension of common marital life, both as to
person and property, while in the latter, only the property relation is affected, and the spouses may be actually living
together.
Legal Separation and Separation of Spouses - Legal Separation (LS) can be effected only by decree of the court; but
the spouses may be separated in fact w/o any judgment of the court. Under the NCC, any contract for personal
separation between husband and wife shall be void and of no effect. [Art. 221 (1), NCC.] With the repeal of Art.
221, and the omission from the FC of a similar provision, the rule prior to the NCC is restored, and such agreements
are again valid.
Foreign Divorces - A foreign divorce bet. Filipino citizens, sought and decreed after the effectivity of the NCC, is
not entitled to recognition as valid in the Phils. This is still the rule under the FC.
TENCHAVEZ V. ESCAO [15 S 355 (1965)]
Where the wife, a Filipina, deserted her Filipino husband, obtained a divorce in the U.S., married an American
citizen, and later herself became an American citizen, the Filipino husband is entitled to legal separation
conformably to Philippine law and to damages.
(1) A foreign divorce between Filipino citizens, sought and decreed after the effectivity of the New Civil Code, is
not entitled to recognition as valid in the Philippines, and neither is the marriage contracted with another party by
the divorced consort, subsequently to the foreign decree of divorce, entitled to validity in this country.
(2) Invalid divorce entitles innocent spouse to recover damages (P25,000 as moral damages; basis - 2176).
(3) An action for alienation of affection against the parents of one consort does not lie in the absence of proof of
malice or unworthy motives on their part.
Note: WHAT IS IMPORTANT IS THE CITIZENSHIP AT THE TIME OF MARRIAGE.
Supposing the wife became an American citizen first, then divorced her Filipino husband, would it still constitute as
adultery giving rise to legal separation? [NO]
A. GROUNDS
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage
in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or adoption.
Observe that some grounds would tend to overlap w/ the grounds for annulment. In such a case, the aggrieved party
has the option, either to bring an action for annulment or for LS.
Paragraph (1) - The violence must be of a serious degree, but does not have to amount to an attempt against the life
of the petitioner, w/c is covered by par. (9). The violence must be repeated, to the extent that common life w/ def.
becomes extremely difficult for the plaintiff.
It is submitted that the repeated physical violence or the grossly abusive language should be committed only by one
spouse and not by both to each other.
Paragraph (2) - The physical violence or moral pressure to compel the plaintiff to change religious or political
affiliation need not be repeated. A single incident would be enough.
The pressure must be undue. It becomes undue when the other spouse is deprived of the free exercise of his or her
will.
Paragraph (3) - If both spouses agree that the wife or a daughter engage in prostitution, neither one should be
allowed to obtain LS, on the principle that a person should come to court w/ clean hands.
Paragraph (4) - The crime for w/c the def. was convicted is immaterial.
Paragraph (5) - This ground does not have to exist at the time of the marriage. Distinguish this from Art. 46 (4).
Paragraph (6) Questions - (1) Will knowledge of one party that the other was a lesbian or a homosexual bar the
action for LS?
(2) Does homosexuality contemplate sexual orientation or does it contemplate only
homosexual practice.
Homosexuality refers to practice, not by nature; if by nature, then Art. 36 will apply.
On pars. 5 & 6 - These grounds can be reason for actions for LS only when they come to exist after the celebration
of the marriage. If the defect had existed at the time of the marriage, but the marriage had been ratified by continued
cohabitation or the action to annul has prescribed, it is submitted that the action for LS may not be subsequently
brought.
Paragraph (7) -Would this include a subsequent marriage by a person after a declaration of presumptive death of the
other spouse? It is submitted that every subsequent marriage, where there is a subsisting prior marriage, should give
the other spouse the right to ask for LS.
Paragraph (8) - Sexual Infidelity - The act of a wife in having sexual intercourse w/ any other man not her husband
will constitute adultery. On the other hand, concubinage is committed by the husband in three ways:
(1) by maintaining a mistress in the conjugal dwelling:

(2) by having sexual intercourse w/ the other woman under scandalous circumstances; and
(3) by cohabiting w/ her in any other place.
To equalize the situation of husband and wife in this respect, the FC makes "sexual infidelity" sufficient ground for
either to justify the grant of LS.
Sexual Perversion - This includes all unusual or abnormal sexual practices w/c may be offensive to the feelings or
sense of decency of either the husband or the wife. But if the act of sexual perversion is by free mutual agreement,
neither party can ask for LS, bec. they are equally guilty of the perverse act. Sexual Perversion is a flexible concept.
It is basically, a cultural thing.
GANDIONCO V. PENARANDA [155 SCRA 725] - A civil action for LS, based on concubinage, may proceed
ahead of, or simultaneously w/, a criminal action for concubinage, bec. said civil action is not one "to enforce the
civil liability arising from the offense" even if both the civil and criminal actions arise from or are related to the
same offense. A decree of LS, on the ground of concubinage may be issued upon proof of preponderance of
evidence in the action for LS. No criminal proceeding or conviction is necessary.
Paragraph (9) - An attempt against the life of the plaintiff spouse, as a ground for LS, implies that there is intent to
kill. But the act against the life of the plaintiff spouse must be wrongful in order to constitute a ground for LS. Even
if repeated physical violence, this can fall under No. 1.
Paragraph (10) - Under Art. 101, "the spouse who has left the conjugal dwelling for a period of three months or has
failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to
have no intention of returning to the conjugal dwelling.
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain the decree of legal separation; or
(6) Where the action is barred by prescription.
There are other grounds that are not found in Art. 56.
(7) Death of either party pendente lite. (Lapuz v. Eufemio, supra.)
LS is a personal right and does not survive death.
(8) Reconciliation pendente lite. (Art. 66 par. 1.)
Paragraph (1) - Condonation as Defense - Condonation is the forgiveness of a marital offense constituting a ground
for LS, and bars the right to LS. It may be express or implied. It is express when signified by words or writing, and it
is implied when it may be inferred from the acts of the injured party. Condonation is pardon w/c comes after the
offense.
MATUBIS V. PRAXEDES [109 P 788 (1960)] - The law specifically provides that legal separation may be
claimed only by the innocent spouse provided the latter has not condoned or consented to the adultery or
concubinage committed by the other spouse; and plaintiff having condoned and/or consented IN WRITING to the
concubinage committed by the defendant husband, she is now undeserving of the court's sympathy.
The stipulation though void is equivalent to express consent.
Paragraph (2) - Consent is the agreement or conformity in advance of the commission of the act w/c would be a
ground for LS.
Paragraph (3) - Connivance is distinguished from consent in that consent is unilateral, or an act of only one spouse.
Connivance implies agreement, express or implied, by both spouses to the ground for LS.
Paragraph (4) - Recrimination is a countercharge in a suit for LS that the complainant is also guilty of an offense
constituting a ground for LS. This defense is based on the principle that a person must come to court w/ clean hands.
Paragraph (5) - Collusion is the agreement bet. husband and wife for one of them to commit, or to appear to commit
or presented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the
purpose of enabling the other to obtain LS.
B. LIMITATION OF ACTION
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause.
The law does not encourage LS, and provides for prescription of the action even when the offended party has not
had knowledge of the cause. If plaintiff does not come to know of the ground for LS, and 5 yrs. expire from the date
of its occurrence, he cannot sue for LS.
BROWN V. YAMBAO [54 O.G. 1827 (1957)]
In an action for legal separation on the ground of adultery filed by the husband, even though the defendant wife did
not interpose the defense of prescription, nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation or annulment of marriage, involve public interest, and it is the policy of our law
that no such decree be issued if any legal obstacles thereto appear upon the record. Also, the husband was guilty of
commission of the same offense by living with another woman.
This is an exception the Rules of Court provision that defenses not raised in the pleadings will not be considered,
since provisions on marriage are substantive in nature.
C. HEARING
Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing
of the petition.
This article is intended to give the spouses a chance to reconcile. Incidental matters may be heard even during the
six-months cooling-off period. During the six month period, the court may still act to determine the custody of the
children, alimony and support pendente lite.
ARANETA V. CONCEPCION [99 P 709 (1956)] - Evidence not affecting the cause of separation, like the actual
custody of the children, the means conducive to their welfare and convenience during the pendency of the case,
should be allowed so that the court may determine which is best for their custody.
SOMOSA-RAMOS V. VAMENTA [46 S 110 (1972)] - An ancillary remedy of preliminary mandatory injunction
is not barred by the six-month statutory suspension of trial in an action for legal separation. In this case, the wife
filed a petition for legal separation, and a motion for preliminary mandatory injunction for the return of what she
claims to be her paraphernal and exclusive property.
Art. 103 NCC is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of
the 6 months period. That the law remains cognizant of the need in certain cases for judicial power to assert itself is
discernible from what is set from what is set forth in Art. 104 NCC (now Art. 61, FC.) Here, there would appear to
be a recognition that the question of management of the spouses' respective property need not be left unresolved
even during the 6 months period. An administrator may even be appointed for the management of the prop. of the
conjugal partnership.
PACETE V. CARRIAGA [231 SCRA 321] - (Art 58) of the FC mandates that an action for LS must "in no case
be tried before six months shall have elapsed since the filing of the petition," obviously in order to provide the
parties a "cooling-off" period. In this interim, the court should take steps toward getting the parties to reconcile.
Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses
and is fully satisfied, despite such efforts, that reconciliation is highly improbable.
The effort of the Court is not limited to the period before trial (at least 6 mos.) but may be continued even after trial
and before judgment is rendered.
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion
between the parties and to take care that the evidence is not fabricated or suppressed.
DE OCAMPO V. FLORENCIANO [107 P 35 (1960)] - Where the husband, after finding the wife guilty of
adultery sent her to Manila to study beauty culture, and there she committed another adultery with a different man,
and the husband filed a petition for legal separation, the wife's admission to the investigating fiscal that she
committed adultery, in the existence of evidence of adultery other than such confession, is not the confession of
judgment disallowed by the Code. What is prohibited is a confession of judgment - a confession done in court or
through a pleading.
(1) "Where there is evidence of the adultery independently of the defendant's statement agreeing to the legal
separation, the decree of separation should be granted, since it would not be based on the confession but upon the
evidence presented by the plaintiff. What the law prohibits is a judgment based EXCLUSIVELY on defendant's
confession."
(2) The failure of the husband to actively search for his wife who left the conjugal home after his discovery of her
illicit affairs, and to take her home does not constitute the condonation or consent to the adultery. It was not his duty
to search for her.
(3) The petition should be granted based not on the first adultery, which has already prescribed, but on the second
adultery, which has not yet prescribed.
1. RIGHTS AND OBLIGATIONS OF PARTIES
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each
other.
The court, in the absence of a written agreement between the spouses, shall designate either of them or a third
person to administer the absolute community or conjugal partnership property. The administrator appointed by the
court shall have the same powers and duties as those of a guardian under the Rules of Court.
SABALONES V. CA [230 SCRA 79] - In case of an action for legal separation, where the spouses did not agree as
to who will administer the conjugal partnership, the Court may appoint one of the spouses. Such appointment may
be implied. While it is true that no formal designation of the administrator has been made, such designation was
implicit in the decision of the trial court denying the petitioner any share in the conjugal properties (and thus also
disqualifying him as administrator thereof.) That designation was in effect approved by the CA when it issued in
favor of the resp. wife the preliminary injunction now under challenge.
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to
the support of the spouses and the custody and support of the common children.
Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between
the spouses, the Court shall provide for the support of the spouses and of their common children. The Court shall
give paramount consideration to the moral and material welfare of said children and their choice of the parent with
whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the
other parent.
Effects of Filing Petition:

(1) The spouses can live separately from each other
(2) The administration of the common prop., whether in absolute community or conjugal partnership of gains, shall
be given by the Court to either of the spouses or to a third person, as is best for the interests of the community.
(3) In the absence of a written agreement of the spouses, the Court shall provide for the support bet. the spouses and
the custody and support of the common children, taking into account the welfare of the children and their choice of
the parent w/ whom they wish to remain.
(4) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be
necessary, unless such spouse voluntarily gives such consent.
Alimony "pendente lite." - During the pendency of the suit for legal separation upon a complaint filed and admitted,
it is the duty of the court to grant alimony to the wife and to make provisions for the support of the children not in
the possession of the father.
Should def. appear to have means to pay alimony and refuses to pay, either an order of execution may be issued or a
penalty for contempt may be imposed, or both.
While the action is pending, the custody of the children may be determined in one of two ways:
(1) by agreement of the spouses w/c shall not be disturbed unless prejudicial to the children; and
(2) by court order, w/c shall be based on the sound discretion of the judge, taking into account the welfare of the
children as the ruling consideration.
LERMA V. CA [61 S 440 (1974)] - Where the husband filed a complaint for adultery against the wife, and the wife
filed a petition for legal separation in bad faith, the wife having been convicted of adultery in the meantime, she is
not entitled to support pendente lite. "The right to separate support and maintenance, even from the conjugal
partnership property, presupposes the existence of a justifiable cause for the spouse claiming such right to live
separately. A petition in bad faith, such as that filed by the one who is himself or herself guilty of an act which
constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the
intendment of the law granting separate support."
2. EFFECT OF DEATH OF A SPOUSE
LAPUZ V. EUFEMIO [43 S 177 (1972)] - The death of the plaintiff BEFORE a decree of legal separation abates
such action. "An action for legal separation which involves nothing more than bed-and-board separation of the
spouses is purely personal. The Civil Code recognizes this (1) by allowing only the innocent spouse (and no one
else) to claim legal separation; (2) by providing that the spouses can, by their reconciliaton, stop or abate the
proceedings and even rescind a decree of legal separation already granted. Being personal in character, it follows
that the death of one party to the action causes the death of the action itself - actio personalis moritur cum persona."
Even if property rights are involved, because these rights are mere effects of the decree of legal separation, being
rights in expectation, these rights do not come into existence as a result of the death of a party. Also under the Rules
of court, an action for legal separation or annulment of marriage is not one which survives the death of spouse.
MACADANGDANG V. CA [108 S 314 (1981)] - The death of a spouse AFTER a final decree of legal separation
has no effect on the legal separation. The law clearly spells out the effect of a final decree of legal separation on the
conjugal property. Therefore, upon the liquidation and distribution conformably with the effects of such final decree,
the law on intestate succession should take over the disposition of whatever remaining properties have been
allocated to the deceased spouse.
D. DECREE OF LEGAL SEPARATION
1. EFFECTS
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse
shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership,
which shall be forfeited in accordance with the provisions of Article 43 (2);
effects:
xxx
are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse;
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article
213 of this Code; and
Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent designated by the
Court. The Court shall take into account all relevant considerations, especially the choice of the child over seven
years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to
order otherwise.
(4) The offending spouses shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by
operation of law.
There are four (4) other effects

(5) Donation propter nuptias may be revoked by the innocent spouse. (Art. 64.)
(6) Designation of the guilty spouse in the insurance policy may be revoked. (id.)
(7) Cessation of the obligation of mutual support. (Art. 198.)
(8) Wife may continue using the surname before the decree of legal separation. (Art. 372, NCC.)
Support and Assistance - After the decree of LS, the obligation of mutual support bet. the spouses ceases; however,
the court may order that the guilty spouse give support to the innocent spouse. (Art. 198.)
Successional Rights - The guilty spouse, by virtue of the decree of LS becomes disqualified to succeed the innocent
spouse. She would not even be entitled to the legitime. But if the will is executed after the decree, the disposition in
favor of the offender shall be valid.
LEDESMA V. INTESTATE ESTATE OF PEDROSA [219 SCRA 806] - The law mandates the dissolution and
liquidation of the prop. regime of the spouses upon finality of the decree of LS. Such dissolution and liquidation are
necessary consequences of the final decree. This legal effect of the decree of legal separation ipso facto or
automatically follows, as an inevitable incident of, the judgment decreeing the LS for the purpose of determining the
share of each spouse in the conjugal assets. (citing Macadangdang v.CA, 108 SCRA 314.)
Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by
him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any
insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donation shall be
recorded in the registries of property in the places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of the complaint for revocation in the registries of
property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take
effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within 5 years from the time the decree of legal
separation become final.
2. RECONCILIATION
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be
filed with the court in the same proceeding for legal separation.
Reconciliation is a mutual agreement to live together again as husband and wife. It must be voluntary mutual
agreement. It is submitted that the fact of resuming common life is the essence of reconciliation and terminates the
legal separation even if the joint manifestation has not been filed in court. Technically, what will set aside the decree
of LS is the filing of a joint verified manifestation of reconciliation. Without that, the court cannot act motu proprio.
Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the
share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property
regime.
The court order containing the foregoing shall be recorded in the proper civil registries.
Effects of Reconciliation:
(1) Custody over the children - Joint custody is restored.
(2) Compulsory and intestate succession is restored.
(3) Testamentary succession - There is no revival. Reconciliation will not necessarily revive the institution of the
guilty spouse in the will of the innocent spouse.
(4) Donation propter nuptias will remain revoked.
Art. 67. The agreement to revive the former property regime referred to in the proceeding Article shall be executed
under oath and shall specify:
(1) The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for
legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in
its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of
properties. The recording of the order in the registries of property shall not prejudice any creditor not listed or not
notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim.
The FC authorizes the spouses to agree to "revive their former property regime." We submit that this is not
restrictive and does not limit the spouses to the regime they had before the decree of LS. The spouses are placed in
the same position as before the marriage and could establish the property regime they want, as if making a marriage
settlement. If they do not agree on any system, then by law their new regime will be that of separation of property.
V. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
There are 2 aspects in family relations, one internal and another external. In the internal aspect, w/c is essentially
natural and moral, the family is commonly known to be sacred and inaccessible even to the law. It is only in the
external aspects, where third persons and the public interest are concerned, that the law fixes rules regulating family
relations.
A. IN GENERAL
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render
mutual help and support.
These are called legal obligations but they are more of a statement of policy. An action for specific performance is
not proper to enforce these obligations. The only possible consequences are found in Art.100 for ACP and 127 for
CPG. With regard to the mutual obligation of fidelity, there are consequences both civil and criminal (adultery or
concubinage.). With respect to support, there are legal provisions in the FC w/c carry out the duty.
Marriage entitles the husband and wife to each other's society, that is, they are mutually entitled to cohabitation or
consortium. This means that they shall have a common life, under the same roof, to better fulfill those obligations
inherent in the matrimonial status.
The right of cohabitation includes domestic and sexual community of the spouses, the extent of both of w/c will
differ according to the circumstances. The spouses will be considered as living together, although driven by the
stress of circumstances or pecuniary difficulties to separate, if there is no intention on the part of either to sever their
marital relations permanently.
But for the purpose of the law, only the tangible and material aspect of cohabitation can be taken into account. The
law is powerless to impose that intimacy of life is the basis of conjugal peace and happiness.
Sexual Relations - Although a husband is entitled to sexual relations w/ his wife, and it is not rape to force the wife
to have sexual relations against her will, this right is not absolute. The right involves only normal intercourse.
Legal Sanction for Cohabitation - Cohabitation by the parties must be spontaneous and cannot be imposed by the
law or the courts. The only possible sanction is patrimonial in nature. If the husband refuses to live w/ the wife, he
can be compelled to pay her a pension, and indemnity for damages; and if the wife refuses to live w/ the husband, he
can refuse to support her.
The husband cannot by the use of force, even of public authority, compel the wife to return home. Such remedy
would be a violation of personal dignity and security. Modern law abhors imprisonment for debt, and coercive
measures to compel the wife to live w/ the husband would be worse than imprisonment for debt.
Any person who interferes w/ the right of the spouses to cohabitation may be held liable for damages under Art. 26,
FC.
Mutual Fidelity - This fidelity is the loyalty w/c each should observe toward the other, the wife having nothing to do
w/ another man, nor the husband w/ another woman.
Mutual Help - Mutual help involves care during sickness, and bearing the inconvenience caused by such sickness, of
the other spouse. The obligation of mutual help, however, is not limited to material assistance and care during
sickness. It extends to everything that involves moral assistance, and mutual affection and regard.
There are positive legal provisions w/c reveal the scope of this duty and implement the general rule laid down in the
present article. Among them are:
(1) the legitimacy of defense of a spouse (Art. 11, RPC);
(2) the increase in penalty in a crime by one spouse against the person of the other (Art. 246, id.);
(3) the incapacity of one spouse to testify against the other (R123, Sec. 26, ROC);
(4) the right of one spouse to object to adoption of or by the other (Arts. 185 and 188); and (5) the prohibition of
donations between them (Art. 87.)
Legal Sanction - The only aspect of the obligation of mutual help for w/c there is a legal sanction is the duty to
support. This can be enforced by court action. But the law cannot penetrate to the intimate relations in the home in
order to enforce the mutual obligations of care, of moral assistance, and of mutual affection and regard.
Position of Spouses in the Family - The perfect parity of rights and duties of H & W has to be reconciled w/ the need
for unity of direction in the family. Since the power of direction cannot be vested at the same time in 2 persons, the
existence of a head of the family becomes imperative; and both nature and tradition have given this prerogative to
the husband. This power of the H as head of the family, however, is not composed of rights and prerogatives, but of
duties and responsibilities, bec. the H does not use it for his personal benefit but for the greater and higher interests
of the family.
Chastisement is unlawful, and it has been held that the H should not be permitted to inflict personal chastisement
upon his wife, even for the grossest outrage. The only possible exception to this rule under our law is that given in
Art. 247 of the RPC, w/c provides that: Any legally married person who, having surprised his spouse in the act of
committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall
inflict upon them physical injuries of any other kind, he shall be exempt from punishment.
Love Between Spouses - Mutual love cannot be compelled or imposed by court action.
ARROYO V. VASQUEZ [42 P 54] - Def. is under obligation both moral and legal, to return to the common home
and cohabit w/ plaintiff. But the great weight of authorities, however, is strongly convincing that it is not w/n the
province of the courts in the Phils. to compel anyone of the spouses to cohabit w/ and render conjugal rights to the
other.
VAN DORN V. ROMILLO [139 SCRA 139] - supra. (Art. 15 NCC.)
To maintain, as private resp. does, that under our laws, petitioner has to be considered as still married to private resp.
and still subject to a wife's obligations under Art. 109 et seq. of the NCC cannot be just. Petitioner should not be
obliged to live together w/, observe respect and fidelity, and render support to private resp. The latter should not
continue to be one of the heirs w/ possible rights to conjugal property. She should not be discriminated against in her
own country if the ends of justice are to be served.
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid
and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible
with the solidarity of the family.
The power to fix residence is joint. Whatever residence is fixed should bind both parties. The right to fix family
domicile includes the right to change it, so long as the spouses agree to the transfer. It can be said that any of the
grounds for LS would be sufficient for a spouse to have a separate domicile, if he or she prefers that to LS.
Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other
conjugal obligations shall be paid from the community property and, in the absence thereof, from the income of or
fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall
be satisfied from their separate properties.
Art. 70 is an implementation of the third duty of the spouses, that of support. Correlate this w/ Art. 194.
Where to get the funds? There are three sources in the order of priority:
1. From the common property
2. From the income or fruits of the separate property
Note: Numbers 1 and 2 are different sources only if the property relationship is ACP. In CPG, numbers 1 and 2 will
be the same.
3. From the separate property themselves.
Art. 71. The management of the household shall be the right and duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions of Article 70.
The order of liability for family support of the different properties of the marriage is: first, the community prop.,
then the income of the spouses or fruits of their separate properties, and finally, the separate properties of the
spouses. The liability of the spouses for the support of the family being joint, this may mean that they contribute
equally, regardless of the value of the respective properties of the spouses. However, this would not be equitable.
The better rule seems to be that the contribution should be proportionate to the properties of the spouses.
Management of Household - In view of the silence of the law on how the disagreement bet. the spouses in the
management of the household shall be settled, the custom should be observed, and the wife's position should be
given priority.
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.
What Relief May Be Granted - Under the NCC, when one party applies for relief bec. of the acts or negligence of
the other spouse, "the court may counsel the offender to comply with his or her duties, and take such measures as
may be proper." Notwithstanding this omission in the FC, we believe that the court has full freedom to determine the
kind of relief that may be given. The relief, however, must be lawful.
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent
of the other. The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection,
the resulting obligation shall be enforced against the community property. If the benefit accrued thereafter, such
obligation shall be enforced against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.
Q: May the husband or wife engaged in a profession or business freely dispose of the products of such activity?
A: If the disposition is in the course of the professional or commercial activity, the spouse should be free to dispose
of the products of such activity. But if the funds will be used to buy real estate, then the spouse should act jointly, if
the property regime of the marriage is absolute community or conjugal partnership of gains, bec. such funds are
common prop. of the marriage.
B. OBLIGATION TO LIVE TOGETHER
ARROYO V. ARROYO [42 S 54 (1921)] - The courts can make a judicial declaration of abandonment without
sufficient justification but it cannot compel cohabitation, consortium being a purely personal right. However, the
courts can impose economic sanctions or such unjustified departure from the conjugal dwelling.
PEREZ V. PEREZ [109 P 656 (1960)] - Material injury as used in Article 116 of the Civil Code (Art. 72 of the
Family Code) does NOT refer to patrimonial (economic) injury or damage, but to personal (i.e. physical or moral)
injury to one of the spouses since Art. 116 lies in the chapter concerning PERSONAL RELATIONS between
husband and wife.

Marriage

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MARRIAGE

Purposes of Marriage in General:

Marriage Differentiated from Ordinary Contracts:

(5) As to effect: OC do not create status, M does.

Principal Effects of Marriage:

Goitia v. Campos Rueda [35 P 252]

I. REQUISITES OF A VALID MARRIAGE

Absence of a requisite - whether essential or formal, renders the M void

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

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

Art. 3. The formal requisites of marriage are:

Requisites of some form of ceremony:

Martinez v. Tan [12 P 731]

SAN GABRIEL V. SAN GABRIEL [56 O.G. p. 3555 (1960)]

3. Legal Capacity (an essential requisite.)

Balane: 18 yrs. old is an absolute minimum.

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

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

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

DOMINGO V. CA [226 SCRA 572 (1993)]

ATIENZA V. BRILLANTES [243 SCRA 32 (1995)]

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

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

GOMEZ V. LIPANA [38 S 615 (1958)]

CONSUEGRA V. GSIS [37 S 315 (1971)]

PEOPLE V. MENDOZA [95 S 845 (1954)]

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

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

Physical Incapacity, Requisites:

This kind of marriage cannot be ratified by ratification.

The action on this ground is barred in the following cases:

f. Psychological Incapacity - Articles 36, 39

The following are incapable of contracting marriage:

(1) As a substitute for divorce;

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

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

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

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

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

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

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

Conviction of Crime; Requisites:

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

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

BUCCAT V. BUCCAT [72 P 19]

ANAYA V. PALAROAN [36 S 97]

JIMENEZ V. CANIZARES [109 P 273 (1960)]

PAULINO V. CRUZ [4 C.A. Rep 1207 (1963)]

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

Art. 3. The formal requisites of marriage are:

Requisites for Authority of Priest or Minister:

PEOPLE V. WHIPKEY [69 O.G. No. 42, p. 9678 (1973)]

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

(1) Where to apply - Arts 9-10

Consuls on home assignment in the Phils. cannot solemnize marriages.

(2) Requirements for issuance

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

When Proof of Age Dispensed With:

Form of Consent - It must be in writing.

Q: What is the legal capacity of a stateless person?

(c) Parental advice - Art. 15

(d) Marriage Counseling - Art. 16

(e) Publication - Art. 17

(f) Investigation of Impediments - Art. 18