VIRTUAL WEDDINGS UNDER PHILIPPINE LAW
Pedro Jose F. Bernardo1
My cousin recently got married in the time of Covid19 (https://bit.ly/2ZSEzaQ). While it was possible for him
and his then fiancée to have postponed the wedding to a later date, they had decided to push through, while at
the same time, scaling down much of what they had been planning by way of a ceremony and the subsequent
reception. Instead, what took place was an intimate ceremony that consistent only of the couple, their
respective immediate households, and the officiating priest. And the whole time, everyone was conscious of
social-distancing, and were even wearing face masks as required by government authorities! The circumstances
under which the wedding was held only reminded me that, indeed, omnia amor vincit - loves conquers all.
But where does the requirement that weddings must be conducted in person come from, if it is even a legal
requirement at all? Could not virtual weddings be held as a valid legal substitute for actual wedding ceremonies,
especially in this time of Covid19, when we have come to accept the use of technology in so many of our
everyday transactions and interactions?
This therefore got me thinking: are virtual weddings, or weddings where would-be spouses are not be in the
same physical location as their officiant but manifest their consent virtually through online platforms such as
Zoom, Skype, Facebook or Instagram, valid under Philippine law?
Requisites of a valid marriage
To give rise to a valid marriage under Philippine law, two sets of requisites must be satisfied. The first set of
requirements is known as the “essential requisites of marriage”, while the second set of requirements is known
as the “formal requisites of marriage”. The first set of requisites is said to be “essential” because it goes into the
substance of what, in law, a marriage is: a “special contract of permanent union between a man and a woman.”
Meanwhile, the second set of requisites is said to be “formal” because they provide for the manner or form
required by law to give rise to this special contract.
Article 2 of the Family Code of the Philippines enumerates what these essential requisites are:
(1)
Legal capacity of the contracting parties who must be a male and a female; and
(2)
Consent freely given in the presence of the solemnizing officer.
Meanwhile, Article 3 of the same law provides for the formal requisites, as follows:
(1)
Authority of the solemnizing officer;
(2)
A valid marriage license; and
(3)
A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
You will note that as an essential requisite, the law requires that consent must not only be given freely by each
of the marrying parties, but that such consent must be declared in a particular way: in the presence of the
solemnizing officer.
1
PJ Bernardo is a partner in a Singapore law firm and oversees its Myanmar and Cambodia offices. He taught civil law at the Ateneo Law School
before pursuing post-graduate studies in the United States, and while he has been practicing law abroad since 2013, he has maintained strong
research interests in Philippine civil, constitutional and commercial law and practice.
Now, because these essential and formal requisites are required to give rise to a valid marriage, the absence of
any one would result in a void marriage. Article 4 of the Family Code is clear: “The absence of any of the essential
or formal requisites shall render the marriage void ab initio.”
However, imperfect compliance or attempt to satisfy essential and formal requisites will lead to less drastic
result. For imperfections or “defects” in essential requisites, the law says that such defect “will render the
marriage voidable,” that is, the marriage would be valid, but it can be annulled by certain interested persons
within a specified period of time. Meanwhile, for imperfections or “irregularities” in formal requisites, the law
says that these “shall not affect the validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.” There is therefore a distinction between
imperfections in essential requisites (resulting in a voidable marriage) and in formal requisites (which do not
affect validity, but will give rise to liability on the part of the parties responsible).
The nature of “presence” as required by law
Like any other contract, parties entering into a marriage must freely give their consent to this legal relationship.
But because marriage is a “special contract of permanent union”, the Family Code requires more: the consent
of the couple must be given in a particular way, that is, in the presence of a solemnizing officer.
What does this “presence” require? Accompanying provisions of the Family Code provide an answer.
In describing the formal requisite of the wedding ceremony, the law states that while not needing to be in any
“form or religious rite”, this wedding ceremony must nonetheless involve “the appearance of the contracting
parties before the solemnizing officer.” The language used is telling: the couple must appear “before the
solemnizing officer.” This description is elsewhere amplified when, repeating the nature of the wedding
ceremony, the law specifically states that it must be one where each of the marrying parties “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.”
Taking these provisions together, it becomes clear that the presence required of the couple to properly manifest
their respective consent before the solemnizing office is one that is physical and not merely virtual. And what
is more, the fact that the Family Code specifically mentions such presence as part of the essential requisite of
consent means that any other way that such consent is given (including virtual) would result not merely in a
defect, but an absence of such essential requirement. Failure to satisfy this presence requirement in the way
contemplated by the Family Code, therefore, would mean that the marriage is void ab initio.
The inevitable conclusion, then, is that under the current state of the law, marriages celebrated virtually would
be void because these would not satisfy the specific requirement of the Family Code that consent be given
personally by the marrying parties before or in the physical presence of the officer solemnizing the marriage.
Why the need for physical appearance?
By requiring the physical appearance of the couple before their solemnizing officer, the law intends to ensure
that each marrying party’s consent to the marriage is freely and properly given and that no other impediments
or irregularities exist that would otherwise cast doubt upon the legality of the union. The role of the solemnizing
officer, therefore, is to ensure that all requirements for a valid and binding marriage have been duly satisfied,
and this was only possible (or so the logic goes) if the couple personally appeared before the solemnizing officer.
So fundamental is the need to personally manifest one’s consent to be married that our law even prohibits socalled “proxy marriages”, by which persons are allowed give marital consent to the solemnizing officers not
personally but through their respective proxies or agents.
It was not always this way.
In the middle ages, state and religious authorities in Europe recognized as valid those marriages with only the
couple exchanging marital consent. The only requirement was that this marital consent had to be given per
verba de praesenti, that is, “in the present tense” and not merely as an expression of a future intent.
Not surprisingly, proving the existence or validity of these so-called “clandestine marriages” became difficult,
especially since it was often the spouses themselves who were locked in dispute over its existence or validity.
This difficulty was summed up by the canon lawyer Gratian, who said: “Marriages which are contracted secretly
are not denied to be marriages, nor is a dissolution of the union ordered, if they can be established by the
confession of both parties. But they are forbidden, for should one of the parties repent of the marriage, the
judge cannot accept the confession of the other person as proof of the marriage.” At the same time, these
clandestine marriages also notoriously lent themselves to instances of bigamy and incest, since no authority
intervened to confirm the absence of any existing impediments.
The Catholic church eventually withdrew ecclesiastical recognition of these clandestine marriages in all Catholic
countries in 1564, with the result that only those marriages performed before a bishop or parish priest and in
the presence of at least two witnesses were recognized under ecclesiastical law as being valid and binding. These
canonical requirements eventually found their way into the various national laws of Christian Europe, and,
thorough the Spanish conquest, to our own Philippine shores.
It is worthwhile to note, though, that in a certain sense, marriages per verba de praesenti continue to exist under
our Family Code under the guise of so-called “common law marriages” where persons cohabit as husband and
wife without the benefit of a valid and solemnized marriage. While the Family Code does not consider these
unions as a valid marriage, its existence does give rise to certain legal consequences, particularly in the area of
property relations between the couple.
Virtual presence and consent
If the requirement for personal physical appearance before the solemnizing officer is to ensure that each of the
couple’s consent to the marriage is indeed freely given, then such requirement can no doubt be properly
satisfied even if the marriage ceremony itself is performed through virtual rather than physical means. This
need for personal physical presence, therefore, can be seen as an anachronistic carry-over from an age when
solemnizing officers only had the actual physical presence of the marrying parties to confirm the nature and
voluntariness of their consent and commitment.
Not so anymore.
With the proliferation of the internet and the widespread adoption of online communication technology that
not only allow almost-instantaneous transmission of audio, but also of video messages, it is now possible for
couples wishing to marry to manifest their free consent without them having to be in the same physical location
as the solemnizing officer. Understood in this way, virtual presence would actually not change the law’s essential
requirement: consent must still be given personally by the marrying parties in the presence of a solemnizing
officer. The only change would thereby involve the modification of the form of the marriage ceremony to be
conducted, from one where physical appearance is necessary, to one where virtual appearance will be allowed.
Indeed, the acceptance of virtual weddings would actually be consistent with the so-called “spiritualization” of
our civil laws, where the form required to give rise to binding legal relationships is secondary only to the parties’
intention and free consent. In the case of marriage, whether consent is given physically or virtually should not
diminish from the fact that such consent is given at all, especially where all other requisites of a valid marriage,
including the participation and authority of the solemnizing officer, has been satisfied.
Moving forward
We are living in strange and uncertain times, and we do not know when or even if our lives will return to the
way they have been before this pandemic. With so much of our lives already having been upended, it would be
wise for our lawmakers to review our laws and adjust its requirements to address the limitations, difficulties and
burdens that Covid19 has brought upon our lives.
There have, in fact, been recent legislative proposals in the House of Representatives that would allow the
implementation of virtual weddings. If a marriage is to be performed virtually, the proposed law requires that
the corresponding marriage certificate be notarized prior to its registration with the local civil registrar to ensure
its authenticity and due execution (see House Bill No. 7042, filed by Rep. Ron Salo).
This “shift to virtual” has also been adopted by the Philippine Supreme Court, where the notarization of
documents can be completed virtually, where the notarizing parties and the notary public appear through
specifically defined “videoconferencing facilities.” (see A.M. No. 20-07-04-SC).
Clearly then, for purposes of marriage, allowing the manifestation of consent to be made virtually and not only
physically would not undermine the purposes of the Family Code, which will continue to provide for existing
safeguards against improvident, coerced or irregular unions. What we have, instead, is an opportunity to update
our marriage laws in a way that will keep pace with widely available technological advances and alleviate the
uncertainty suffered by couples whose plans have been placed in limbo because of the persistence of this
pandemic. No doubt, Covid19 has already taken away so much from us – shall we also allow it now to curtail
even this most fundamental of human commitments?