Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
FAMILY CODE
EO 209 July 6, 1987
As amended by EO 227 July 17, 1987
Article 1 Marriage
Marriage is a special contract of permanent union between a man and
a woman entered into in accordance with the 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
Consent freely given
Distinguish:
1. Total absence of consent (Void ab initio)
Examples:
- Marriage in jest
- Marriage in a movie or stage play
- Marriage where there is mistake in identity
2.
Vitiated consent (Voidable Art 45)
- Consent obtained by force, intimidation and influence
- Consent obtained by fraud
- Consent was given but only defective
3.
There is consent but there is a motive other than for
purposes of establishing a conjugal and family life
Two things can be drawn from this definition
1. Marriage as a status
Entails personal rights, duties and obligations. Since the rights are
personal to the parties, they cannot be delegated to another
person. Also, the parties cannot be compelled to perform his
personal rights and obligations relative to marriage.
Examples:
- A husband cannot ask another to provide intimacy to his wife
- A wife cannot go to the court and ask for injunction to
compel her husband to be intimate with her
Marriage as a status also entails property relations
2. Marriage as a special contract
It is a special contract because it is imbued with public interest
and its nature, consequences and incidents are not subject to
stipulation.
An ordinary contract is governed by the principle of liberality (Art
1306). Parties are free to establish terms and conditions as they
deem fit. However, this is not the same with marriage because in
marriage, the nature, incidents and consequences are governed
by law and not by the will of the parties.
Except:
Property relations (Provided that the marriage settlement is done
prior to the solemnization of the marriage)
- Absolute community
- Complete separation of property regime
Article 2 Essential requisites
(1) Legal capacity of the contracting parties
(2) Consent freely given in the presence of the solemnizing officer
Legal capacity
1. Age (18 years old and above)
2. Absence of any legal impediment (Art 37 & 38)
3. Sex (Must be a male and a female)
Sex is determined at birth by visually looking at the genitals of
the baby. This determination is immutable that no amount of
surgical or scientific alteration of the genital can change the sex
classification.
Silverio v. Republic
Silverio was born a man but as he grew older, he underwent physical,
emotional and psychological changes such that his male inclination
increased and his female inclination, decreased. He eventually underwent
a sex reassignment surgery in Thailand. Thereafter, Silverio filed an
action in court to change his gender from male to female and his name
from Romel to Mely.
Ruling
Sex classification of an individual is determined at birth and once sex is
determined, this becomes immutable and can never be changed even by
a sex reassignment surgery. While we care for the plight of Romel, the
court cannot simply grant the relief because there is no law that
authorizes change of sex on the basis of a sex reassignment surgery. The
proper forum is not the court but with the legislative body because the
courts can only apply existing laws.
This rule that sex classification is determined at birth does not
apply when the person is born with an intersex anatomy or born
with both female and male genitals.
Republic v. Cagandahan
Jennifer Cagandahan was born with an intersex anatomy. She was
registered as female bearing the name Jennifer. But as she grew older,
she realized that her male characteristics increased more than her female
characteristics, such that she had neither breasts nor menstrual
development. For Jennifer, she is a male and when she reached the age
of majority, she filed an action in court to change her sex from female to
male and her name from Jennifer to Jeff.
Ruling
When a person is born with an intersex anatomy, his or her classification
should be determined by the person concerned and such determination
can be done upon reaching the age of majority where he is already
endowed with full capacity to act. The determination must have
reasonable biological basis.
The petitioner chose to be identified as a male and this has enough
biological basis because physically, he is more endowed with male
characteristics and plus his choice. The sex determination at birth is not
immutable given the intersex anatomy of Jennifer. It is temporary in
character subject to the final determination of Jennifer upon reaching the
age of majority.
What if the parties did not intend to establish conjugal and family life?
Example: Marriage for convenience
Republic v. Albios
An American citizen and a Filipino entered into a contract of marriage but they
never intended to be bound by marriage but only for the Filipina to acquire
American citizenship in consideration of $2000. Because of the American
husband refused to process the naturalization of the Filipina, the wife did not pay
the $2000 and they eventually split up. Subsequently the wife filed an action in
court to declare her marriage void contending that there was no consent because
they did not intend to establish conjugal and family life.
Ruling
We should distinguish motive from consent. Motive is the driving force that
prompted one to enter into a contract. It can be so varied as there are individuals.
But just because motive may appear less legitimate, it does not necessarily
render the marriage void for lack of consent, if there is really consent given.
Their motive may be less legitimate because it is clearly a marriage for
convenience but it does not detract from the fact that both freely consented to the
marriage.
If the purpose is to acquire American citizenship on the part of the wife because
the acquisition of American citizenship results from the marriage, then the parties
must have contemplated to enter into a valid marriage because the effect of
acquiring American citizenship can only be possible if the marriage is valid.
Article 3 Formal requisites
(1) Authority of the solemnizing officer
(2) Valid marriage license
it is the presence of "authority" of a
(3) Valid marriage ceremony
solemnizing officer that makes a
Art 7
formal req present, not "his
Authority of the solemnizing officer
presence" mismo
1. Incumbent member of the Judiciary
The authority of judges, except for appellate justices, (CA, Court
of Tax Appeals, Sandiganbayan and SC), is limited only within
their territorial jurisdiction.
However
A marriage solemnized by a judge outside his court’s jurisdiction does not
affect the validity of the marriage for it is only a mere irregularity which
only subjects the judge concerned to liabilities.
2. Priests, rabbi, imams or ministers of any church
Provided that:
1. These officers must be duly authorized by their church or religious
sect
2. Registered with the civil registrar general
3. Acting within the limits of the authority granted to them by their
church or religious sect
4. At least one of the parties must belong to solemnizing officer’s
church or religious sect
However
A marriage solemnized by a solemnizing officer between contracting
parties who are not members of the same church or religious sect does
not affect the validity of the marriage, but the solemnizing officer shall be
subjected to administrative liability.
Take Note
The authority of the incumbent members of the Judiciary and
that of priests applies to all kinds of marriages whether under
normal circumstances or articulo mortis.
3. Ship captain or Ariplane chief
May solemnize marriages only in articulo mortis between
passengers and crew members while the ship is at sea or the
plane is in flight and during stopovers at ports of call.
4. Military Commander
May solemnize marriages only in articulo mortis.
Requisites
- Solemnizing officer must be a military commander of a unit
- He must be a commissioned officer at least 2nd lieutenant
- A chaplain must be assigned to such unit
- Said chaplain is absent
- Marriage must be in articulo mortis
- Marriage between members of the armed forces or civilian
- Within the zone of military operation
Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
5. Consul-General, Consul or Vice Consul
Authorized to solemnize marriages between Filipinos abroad inside
the premises of the consular office. They cannot solemnize a
marriage between a foreigner and a Filipino. it is void
Therefore
The issuance of the marriage license and the authority of the solemnizing
officer are devolved to the consular officer. All the duties of the local civil
registrar are performed by the consular officer.
6. City of municipal mayor
Pursuant to Sec 444 of the Local Government Code.
Is the authority of the mayor limited only to his LGU and constituents?
For purposes of determining the validity of marriage, it doesn’t matter
whether it is limited or not because it is only a mere irregularity. This is
premised on the fact that even judges of the lower courts when they
solemnize marriages outside their jurisdiction, despite the express provision
of the Family Code that their authority is limited only to their respective
jurisdictions, does not in any way affect the validity of the marriage for it is
considered only as a mere irregularity.
Take Note
Article 35 par 2 – Even if the person who solemnized the marriage is
not actually authorized because he is neither of the 6, the marriage
remains valid provided that either or both of the contracting parties
believed in good faith that the person who solemnized the marriage is
so authorized.
The rule of good faith as an exception is limited only to honest mistake of fact,
and not of law. Because if the mistake pertains to law, you apply the principle
that ignorance of the law excuses no one, hence the marriage is void.
Example:
If the parties believed that the senator who solemnized the marriage is
authorized when under the law, he is not, this is a mistake of law because
everyone ought to know the law that senators are not authorized solemnizing
officers.
But if the parties honestly believed that the judge who solemnized the marriage is
still an incumbent member of the judiciary, this is a mistake of fact.
A Valid Marriage License
Who may issue a marriage license?
The local civil registrar where either of the parties resides.
However
Issuance of the marriage license in violation of this rule does not affect the
validity of the marriage for it is only a mere irregularity, but the local civil registrar
is administratively liable.
Requirements before a marriage license can be issued
(Applicable only to Filipinos – Regio v. Regio)
1. The parties must sign separate applications under oath and
state personal circumstances - full name, age, status, place or
residence, citizenship, etc. (Art 11)
2. In support of the application, the applicant is required to submit
original birth certificate/baptismal certificate (Art 12)
Submission of the original birth certificate may be dispensed with
 If the parties present their residence certificate or cedula
 If at least 2 witnesses execute an affidavit attesting to the
qualifications of the applicants for marriage license
 If the parents of the contracting parties appear before the local civil
registrar and attest to their qualifications
 If the applicants personally appear before the local civil registrar and
the LCR, by merely looking at the applicants, is convinced that they
are of age
3. If the applicant is previously married, he shall submit a copy of
the death certificate or a divorce decree, or the judicial
declaration of nullity of marriage or annulment. (Art 13)
If the applicant is a foreigner (Art 21)
He is not required to submit requirements nos. 2 and 3, but only a
certificate of legal capacity issued by his consular office. (Consistent with
the nationality theory Art 15)
Effect of non-compliance
Issuance of marriage license is suspended for 3 months or 90 days from
completion of the publication of application.
Issuance of the marriage license within the 3 month suspension:
Will not affect the validity of the marriage, but subjects the local civil
registrar administratively liable.
6. If the contracting parties are between 18 and 25, they are
required to submit the certificate of marriage counseling. (Art 16)
Effect of non-compliance
Issuance of marriage license is suspended for 3 months or 90 days from
completion of the publication of application.
Issuance of the marriage license within the 3 month suspension:
Will not affect the validity of the marriage, but subjects the local civil
registrar administratively liable.
Duty of the Local Civil Registrar (Art 17)
After all these requirements are submitted, the local civil registrar
shall determine based on the records and information from any
sources whether the parties are suffering from any legal
impediments (LCR is required to post a notice for 10 days on a
bulletin board outside the office located in a conspicuous place)
Supposing the LCR is made aware that the contracting parties are
suffering from legal impediments (Art 18)
The LCR shall nonetheless issue the marriage license because his
duty is ministerial in character, unless enjoined by a court order.
If the applicant fails to comply with all the requirements, the local civil registrar
may refuse to issue the marriage license.
If the applicant has already complied with all the requirements and the LCR is
made aware of any legal impediment, the LCR cannot refuse to issue the
marriage license
Validity of marriage license (Art 20)
120 days and may be used anywhere in the Philippines.
Exceptions to marriage license
1. Marriage in articulo mortis (Art 27)
2. Marriage wherein either of the parties is a resident in a remote
place where there is no adequate means of transportation to
enable the party to appear before the LCR (Art 28)
3. Marriage between Muslims or other ethnic cultural communities
so long as the marriage is solemnized in accordance with their
customs and traditions (Art 33)
4. Marriage between parties who have cohabited for at least 5
years without any legal impediment (Art 34)
When is legal impediment determined?
Ninal v. Badayog
The Supreme Court made a definitive ruling that for ratification of
marital cohabitation to apply as an exception to the requirement of
marriage license, it is necessary that the cohabitation of at least 5
years should be characterized by exclusivity and continuity.
This ruling has been superseded by Manzano v. Sanchez
Manzano v. Judge Sanchez
The Supreme Court enumerated the requisites for Art 34 to apply:
1. That the parties must be living together for at least 5 years
2. They must be free from any legal impediment
3. The absence of any legal impediment must exist at the time of the
marriage
Hence, it is allowed that a legal impediment was present during the 5year cohabitation, so long that at the time of the marriage the legal
impediment no longer exists. (Consistent with Art 3 and 4 where the
requisites of marriage are to be determined at the time of the marriage
and not prior)
But whatever doubt created by the Manzano v. Sanchez ruling has been
totally wiped out in the very recent case of the Office of the Court
Administrator v. Judge Anatolio Necessario et al.
If the applicant is a stateless person
Required to submit an affidavit, stating the facts indicating his legal
capacity to marry.
Office of the Court Administrator v. Necessario
Whether or not the judges are guilty of gross ignorance of the law for
solemnizing marriages under Art 34 between parties who were
between the ages of 19 and 22.
What shall determine his legal capacity?
 Permanent domicile – where he resides
 Temporary domicile – where he applies for marriage license
Obviously, 5 years back, the parties were suffering from legal
impediment during the period of cohabitation, although at the time of
the marriage they were already of age.
4. If the applicants are between 18 and 20, a written parental
consent must be submitted in support of the application for
marriage license. (Art 14)
Effect of non-compliance
Marriage is VOIDABLE.
5. If either or both of the parties are between 21 and 25, required to
submit a written parental advice. (Art 15)
The Supreme Court reverted to the ruling in Ninal and held that the
judges were guilty of gross ignorance of the law for solemnizing
marriages under Art 34 when obviously from the very allegations in the
affidavit, these parties were suffering from legal impediments during
the period of 5-year cohabitation.
The settled rule:
In the ratification of marital cohabitation under Art 34, the
parties should be free from legal impediments all throughout
the period of at least 5 years.
Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
Valid Marriage Ceremony
Art 6 – No prescribed form for a marriage ceremony, so long as the
parties personally appear before the solemnizing officer and declare
that they each other as husband and wife, in the presence of at least 2
witnesses of legal age.
What is really important?
1. Personal appearance of the parties before the solemnizing
officer (Reason why marriage by proxy is not allowed)
2. Personal declaration that they take each other as husband and
wife before the solemnizing officer (Contained in the marriage
contract – not an essential nor formal requisite, so that even in the
absence of marriage contract, the marriage may still be proved by other
forms of evidence)
Absence of 2 witnesses of legal age does not affect the validity of the
marriage – irregularity.
People v. Lucio Murico
Parties were only made to sign the marriage contract without the
presence of the solemnizing officer. The Supreme Court said that there
was no marriage at all.
Venue for the solemnization of marriage (Art 8)
1. Chambers of the judge or in open court
2. Church, chapel or temple
3. Office of the consular office
Exceptions:
1. Marriage in articulo mortis
2. Marriage between parties residing in a remote place
3. When the parties request in writing the solemnizing officer that
the marriage be solemnized at a house or place indicated in a
sworn statement.
Article 4 Absence l Defect l Irregularity
Essential Requisites
Formal Requisites
Under the laws of Japan, the marriage is valid.
Under the laws of the Philippines, the marriage is void
This is a situation where insofar as the alien spouse is concerned, the
marriage is valid but void insofar as the Filipino spouse is concerned.
Take Note:
The exceptions or prohibitions in Article 26 apply only to Filipino citizens
because these are matters concerning status and legal capacity.
What is then the status of the marriage?
Two conflicting views: (No settled rule yet)
1. The marriage shall be considered void under the exception,
regardless whether the marriage is valid insofar as the alien spouse
in concerned
2. The marriage shall be considered valid because it is a policy in the
Philippines to uphold the validity of marriage so any doubt should be
resolved in favor of the existence and legality of marriage
Where a marriage between a Filipino citizen and a foreigner is validly
celebrated and a divorce is thereafter validly obtained abroad by the
alien spouse capacitating him or her to remarry, the Filipino spouse
shall likewise be capacitated to remarry. (Van Dorn v. Romillo and Imelda
Pilapil v. Ibay Somera)
When is foreign citizenship determined?
Republic v. Obreccido
Foreign citizenship is to be reckoned at the time the divorce decree was obtained
by the alien spouse and not during the solemnization of marriage. It doesn’t
matter if at the time of the marriage, they are both Filipinos. If one of them
acquired foreign citizenship and while already a foreigner, he obtained a valid
divorce decree abroad, this shall be covered under 2nd paragraph of Article 26.
While the Filipino spouse as a result of the divorce decree obtained abroad by
the alien spouse is capacitated to remarry, it does not necessarily mean that the
Filipino spouse may now immediately apply for a marriage license and contract a
subsequent marriage.
Process for the Filipino spouse to remarry
File a petition for declaratory relief (Rule 63 of RRC) to establish his or
her to capacity to remarry
What needs to be proved?
Absence shall render the marriage void ab initio. (Art 35)
Defect shall render the marriage
voidable (Art 45)
Irregularity shall not affect the
validity of the marriage but the
party
responsible
for
the
irregularity shall be held liable.
Article 26 Lex Loci Celebracionis
Marriage solemnized abroad and valid there as such shall also be valid
in the Philippines, except those prohibited in Art 35 (1, 4, 5, 6), Art 36,
37 and 38
Exceptions:
1. Below 18 years old
2. Bigamous marriages
3. Mistake in identity
4. Subsequent marriage under Art 53
5. Psychological incapacity
6. Incestuous marriages
7. Void for reasons of public policy
This rule contemplates many scenarios:
1.
Marriage between foreigners abroad
Valid in the Philippines if valid in the place where celebrated
2.
Marriage between foreigners but solemnized in the Philippines
Since the marriage is solemnized in the Philippines, the validity of the
marriage shall be determined by Philippine laws, except for their legal
capacity
1. Prove the foreign divorce decree
- Presentation of a certified true copy issued by the legal
custodian
- Authentication by the Philippine consular official (red ribbon)
where the document is kept
2. Prove the foreign law under which the divorce decree was issued
(Prove that the divorce decree obtained abroad was validly issued
by the foreign courts and duly complied with the laws allowing the
divorce)
3. Prove that the divorce decree is an absolute divorce which
capacitates the foreign spouse to remarry
(Relative v. Absolute divorce)
Failure to prove these
The petition for declaratory relief may be denied by the courts.
If the foreign spouse who obtained the divorce decree is the one
who applied for marriage license
Petition of declaratory relief is only for the Filipino spouse. It is not a
remedy available for the foreign spouse.
Before
When a foreigner obtains a divorce abroad and wishes to remarry in the
Philippines, all he has to do is have that copy of divorce decree annotated on the
certificate of marriage between him and the former Filipino spouse. The alien
spouse then can apply for a marriage license and contract a subsequent marriage.
Now
The divorce decree should be recognized by Philippine courts and the order of the
court recognizing the divorce decree should be the basis of the LCR to annotate
the divorce decree on the certificate of marriage.
The local civil registrar has no authority to allow the annotation of any foreign
judgment like a divorce decree. The LCR may only annotate a divorce decree only
if such divorce decree shall have been duly recognized by Philippine courts.
3. Marriage between two Filipinos abroad
If marriage is valid abroad, it shall also be valid in the Philippines, except
if it falls under the recognized prohibitions
4.
Marriage between a Fiipino and a foreigner in the Philippines
Since marriage is solemnized in the Philippines, Philippine laws shall be
applied for purposes of validity of the marriage, but the legal capacity of
the foreigner is determined by his national law.
5. Marriage between a Filipino and a foreigner abroad
If valid in the place of celebration, it shall also be valid in the Philippines,
subject to the recognized exceptions
What happens if the marriage is solemnized in Japan, between a Filipino
and a Chinese national?
Chinese – 15 years old
Filipino – 17 years old
In Japan – 15 is the marrying age
In other words, any foreign judgments may only be recognized in the Philippines if
it is approved by our own courts. Without the divorce decree being annotated on
the first certificate of marriage, the foreign spouse cannot secure a marriage
license and contract a subsequent marriage.
Corpuz v. Sto. Tomas
Corpus is a natural-born Filipino but subsequently applied Canadian citizenship.
When he was already a Canadian, he went to the Philippines and married a
Filipino. However, he had to return to Canada because of his work. He came
back to the Philippines without informing the wife because he wanted to surprise
her but found out that his wife was already having illicit relationship with another.
He returned to Canada and obtained a divorce decree.
After a while, he returned to the Philippines and wanted to marry another Filipina.
For this purpose, he went to the local civil registrar in a city in Manila to annotate
the divorce decree. The LCR annotated but he was advised by someone that
despite the annotation, he remains to be married to the Filipino spouse. He was
advised to go to court and so he filed a petition in RTC for the purpose of
recognition of the divorce decree.
Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
nd
The Supreme Court said that the 2 par of Art 26 is not available to the foreigner
because it is only available exclusively to the Filipino spouse. But while Corpuz
cannot avail of the 2nd par of Art 26, it does not follow that he has no right to have
the divorce decree recognized. The proper remedy is under Rule 39 Sec 48 of
the Rules of Court which provides the rule for the effect of foreign judgment. The
proper remedy Corpuz should pursue is under Rule 108 – a correction of entry in
the local civil registrar.
One who is afflicted of psychological incapacity is unaware of the
essential marital obligations and even if he is aware, he is
incapacitated to give due assumption to these obligations.
Remedy that the foreigner can avail of
A special proceeding for correction or cancellation of entries in the Civil
Registrar under Rule 108 of the Rules of Court.
Te v. Te and Halili v. Halili
The Supreme Court declared the parties guilty of psychological incapacity
because they are found to be suffering from dependent personality disorder
as manifested by the following characteristics:
1.
Lacks self-esteem and cannot decide on his own, can only decide with
the advice and affirmation of others
2.
Under the constant fear of being rejected or abandoned
3.
Person who is sensitive to other criticisms
4.
Person who allows to be dominated by others
The ruling laid down in Corpuz v. Sto. Tomas was applied in the case of
Fujiki v. Marinay
Fujiki v. Marinay
Involves a foreign judgment declaring the marriage void by reason of being
bigamous. The Supreme Court ruled that the proper remedy for the foreign
judgment is a special proceeding pursuant to Rule 108 of the Rules of Court –
cancellation or correction of entries in the Civil Registrar.
Article 35 Void Marriages
A person who is intolerant to other flaws and mistakes, impatient
domineering and aggressive. Superiority complex
3. Pathological lying
Antonio v. Reyes
A wife keeps on lying to her husband, a pathological liar. The Supreme
Court ruled that it is a clear symptom or manifestation of psychological
incapacity because one of the essential obligations of marriage is to
observe honest, open communication with the other. Pathological lying is
psychological incapacity.
legitimate
or
st
1 civil degree – parents
2nd degree – siblings
3rd degree – uncles and aunties
4th civil degree – first cousins
Beyond – no longer prohibited
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
If the relationship is adoptive, the effect of the adoption is only between the
adopter and the adopted. It does not affect beyond the relatives of the
adopter or adopter. If the adopted child has a child, the said child is not the
grandchild of the adopter.
Not prohibited: Marriage between the adopter and the child of the adopted
5. Between the surviving spouse of the adopting parent and the
adopted child
Applies only when the adopter dies. But if the marriage between the adopter
and his spouse was dissolved by reason other than death, this prohibition
does not apply. Hence, the ex-spouse of the adapter may marry the
adopted.
6.
Camacho Reyes v. Reyes
The husband was found to be guilty of psychological incapacity, particularly
of dependent personality disorder. Husband was found to be irresponsible
manifested by a series of business failures. He kept traveling and ignoring
his family. When his wife underwent a surgical proceeding, he ignored the
wife and simply kept reading the newspaper.
2. Anti-social narcissistic personality disorder
Void by reason of being incestuous (Art 37)
1. Between ascendants and descendants of any degree
2. Between brothers and sisters, whether half or full blood
whether
1. Dependent personality disorder
The Supreme Court that the husband is so indifferent to the needs of the
wife. He cannot make decisions of his own unless given the blessings of his
parents.
Void by reason of absence of the marriage requisites
1. Below 18 years old
2. Absence of solemnizing officer
3. Absence of marriage license
4. Bigamous marriages
5. Mistake in identity
6. Subsequent marriages under Art 53
7. Psychological incapacity (Art 36)
Void by reason of public policy (Art38)
1. Between collateral blood relatives,
illegitimate, up to the fourth civil degree
By jurisprudence, psychological incapacity may take the form of:
4. Senseless and protracted refusal to have sex with the other
Chi Ming Tsoi v. CA
Senseless, pointless and protracted refusal to have sex with the other is
psychological incapacity because one of the essential obligations of
marriage is physical intimacy
Characteristics of Psychological Incapacity
1. Juridical Antecedence
Illness must exist at the time of the marriage or even before although its
manifestations showed after. Must be rooted to the history of the party
antedating the marriage. Hence, if the illness commenced after the
marriage, it cannot be psychological incapacity (ex.dysfunctional childhood)
2. Incurability
There is no known cure and if there is, it is beyond the means of the person
concerned. Incurability can either be absolute or relative.
Absolute – exists irrespective of the partner
Relative – exists only insofar as one particular partner is concerned
3. Gravity
Between the surviving spouse of the adopted child and the
adopting parent
Illness must be grave that it is the cause of the incapacity, without which
the manifestations of psychological incapacity would not have been
possible. If the incapacity is more of a difficulty, refusal and neglect to
perform an obligation, it is not psychological incapacity.
Applies only when the adopted child dies. But if the marriage between the
adopted and his spouse was dissolved by reason other than death, this
prohibition does not apply. Hence, the ex-spouse of the adopted may marry
the adopter.
If non-performance of marital obligations is only brought about by the
refusal or neglect of the party to perform, it is not psychological incapacity
because what is contemplated by law is really inability.
7. Between an adopted child and a legitimate child of the adopter
They are considered siblings.
8. Between adopted children of the same adopter
If the adopter adopted two children, they cannot marry each other because
they are considered as siblings.
9. Between parties where one, with the intention to marry the other,
killed that other person’s spouse, or his or her own spouse
Subsequent marriage contracted by a spouse while the marriage
is still subsisting even if the first marriage is void
A marriage void by failure to comply with Art 40 – judicial declaration of
nullity of a previous marriage
Article 36 Psychological Incapacity
Perceived by most as divorce. A product of compromise between
advocates of divorce and the conservative faction in Congress.
What is psychological incapacity
Not mental incapacity because if it is, it only amounts to insanity, only a
ground for annulment. It is also not physical incapacity like impotency
because the same is a ground for annulment.
It refers to serious personality disorder, an illness to the psychological
makeup of an individual, demonstrative of utter insensitivity to give
meaning and significance of marriage.
Ferarris v. Ferarris
Amy Perez filed a petition for nullity of marriage under Art 36 against her
husband and pointed out several flaws in the characteristics of her husband
such as womanizing, going to frequent travels. The Supreme ruled that the
petitioner failed to establish that the flaws of the husband are rooted on
some personality disorder. It is more of difficulty or outright refusal or
neglect on the part of the husband to perform his marital obligations.
Take Note
Focus on the effects – incapacity to perform the marital obligations.
Article 40 Judicial declaration of nullity
The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment
declaring such marriage void.
If a person knew that his existing marriage is void and such person wishes to
remarry, the only way by which the subsequent marriage can be valid if for him to
first obtain a judicial order declaring the previous marriage void. Without the
judicial declaration, the subsequent marriage is likewise void.
Rationale
Intended to make certain the status of the subsequent marriage because without
the declaration of nullity of the previous marriage, the second marriage will be
shrouded in mystery whether it is valid or void.
It is not for the parties to judge for themselves that their marriage is void. Only
the court has the power to declare a marriage void.
Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
Will the subsequent marriage without the benefit of the judicial order
declaring the first marriage void, make the spouse criminally liable for
bigamy?
Alice the first wife, executed an affidavit of reappearance purposely to terminate
the marriage between Teresita and Clemente. The SSS believing the allegations
of Alice, directed Teresita to return what she had received and cut off her
monthly pension.
Yes, because absent the judicial declaration of nullity of marriage, the
marriage is presumed valid and existing, so that a subsequent
marriage will make the spouse liable for bigamy. Because at the time
the accused contracted the second marriage, the first marriage is still
deemed to be existing.
Aggrieved by the decision, Teresita appealed the decision. The Supreme Court
said, while the SSS has the jurisdiction to determine who the real beneficiary is,
this however does not carry with it the authority to review or overturn the decision
of the regular court. It is beyond the jurisdiction of the SSS to set aside on its own
the decision of the court declaring Alice to be presumptively dead.
It does not matter if subsequently, the previous marriage is declared
void. What is being punished is the act of contracting a subsequent
marriage without the benefit of a judicial order.
Without the affidavit of reappearance being recorded in the LCR, the marriage
between Teresita and Clemente remains and the order of the court declaring
Alice presumptively dead, stands. This negates the opinion of Sta. Maria that the
mere reappearance restores the first marriage and renders functus officio the
order of the court declaring the presumptive death.
Cases in point: Mercado v. Tan, Antone v. Beronilla, Abunado v. People,
Salvador v. Spouses Serafico, Aurelio v. People, Capili v. People, People v.
Odtuhan
Will the subsequent marriage which is void make the spouse criminally
liable for bigamy?
Cases in point: Tenebro v. CA, Victoria Jarillo v. People, Capili v. People
The Supreme Court said that bigamy is still committed because what is punished
by bigamy is simply the act of contracting a subsequent marriage during the
subsistence of the first. It does not matter if the marriage is void.
The settled rule
Whether what is void is the first or the second marriage, bigamy is
committed the moment subsequent marriage is entered into. Forget
about the ruling in People v. Murico for it has outlived its jurisprudential
relevance.
People v. Murico
The Supreme Court acquitted Lucio Murico from the crime of bigamy because it
was established that the first marriage was void for absence of a solemnizing
officer. Since there was no marriage to speak of, there can be no bigamy.
Article 41 Presumptive death
Contemplates of a situation where the spouse in a present marriage
disappears for 4 years (2 years if there is danger of death) and the
present spouse has reason to believe that the missing spouse is
already dead, that present spouse may contract a subsequent
marriage.
Rule:
1. The present spouse needs to file a petition in court, a summary
proceeding to declare the missing spouse presumptively dead.
2. For the petition to prosper, the spouse must present convincing
evidence that diligent effort has been exerted to locate the
missing spouse but to no avail.
 Announcement in the radio that the person is missing
 Publication in the newspaper that the person is missing
Effect of declaration of presumptive death
1. The first marriage is considered dissolved by reason of death,
which is why upon the finality of the judgment declaring the
spouse in the first marriage presumptively dead, the property
regime in such marriage is dissolved and liquidated.
2. This is however temporary, without prejudice to the reappearance
of the missing spouse
Effect if the missing spouse reappears
1. The mere reappearance of the missing spouse does not terminate
the subsequent marriage and neither does it restore the previous
marriage
2. If the subsequent spouse wishes to resume marital relations with
the former spouse, he is required to cause the recording of an
affidavit of reappearance with the LCR of the place where the
spouses in the subsequent marriage is residing
3. As soon as the affidavit of reappearance is recorded in the LCR,
the subsequent marriage is automatically terminated and the
previous marriage restored.
Sta. Maria’s opinion
Mere reappearance does not terminate the subsequent marriage but
enough to restore the previous marriage. Hence there will be two valid
marriages.
This reasoning by Sta. Maria, however, has been negated by the
Supreme Court in the ruling of SSS v. Baylon
SSS v. Baylon
Clemente Baylon was married to Alice Diaz. After the marriage, Alice
disappeared for 15 years and so Baylon filed a petition in court granting Alice
presumptively dead. Thereafter, he married Elisa and subsequently, he married
Teresita. He married thrice. He died in the care of the third wife, Teresita and so
it was her who claimed for the death and funeral benefits of her husband and the
same was given to her.
However, the second wife and two daughters came forward to claim the death
benefits of Clemente. Not long after, the first wife reappeared and also dipped
her fingers into the estate left by Clemente. Hence, a complaint was filed before
the SSS, the issue as to who between the parties is entitled to claim the death
benefits of Clemente.
But in this case, Alice actually executed an affidavit of reappearance, does it
mean to say that the marriage between Clemente and Teresita is now terminated
automatically?
The Supreme Court said that the subsequent marriage entered into after
obtaining a court order declaring the former spouse presumptively dead is
actually a voidable marriage. It is a rule that a voidable marriage may only be
assailed during the lifetime of the parties. Hence, for the subsequent marriage to
be terminated, the recording of the affidavit of reappearance should be made
during the lifetime of Clemente.
Hence, Teresita the third wife was awarded the death benefits.
Article 43 Effects of the termination of the subsequent marriage
Effect of the termination of the subsequent marriage by the recording
of the affidavit or reappearance by the missing spouse:
1. Children born prior to the termination – legitimate
2. The property regime shall be dissolved and liquidated in
accordance with the rules governing the absolute community of
property regime or conjugal partnership of gains.
 The property regime governing the spouses in the second marriage is
either absolute community or conjugal partnership.
 The rule on liquidation of property regime depends on the kind of
property regime being liquidated
 Absolute Community of Property – Art 108
 Conjugal partnership of gains – Art 129
(Rule on dwelling – awarded to the spouse with whom majority of the
common children choose to stay)
Other property regimes – Art 148 void by reason of legal impediment
Special co-ownership – family dwelling shall be divided equally
divided if established to be co-owned by them. Choice of the common
children will not matter
3. In case there is donation by reason of marriage, donation
remains valid. If the donee acted in bad faith, donation is
revoked by operation of law.
When is a party considered in bad faith: When the party at the time of
the solemnization of marriage, knew that the other spouse is still alive
despite the judicial declaration of presumptive dead.
4. Any insurance policy where the guilty spouse is the beneficiary,
it is not revoked by operation of law, but revocable only at the
instance of the innocent spouse
5. In testate or intestate successions, the guilty spouse is
disqualified from inheriting from the innocent spouse.
Take Note
The effects of Art 43 equally apply to marriages declared void under
Art 40 and declared annulled under Art 45
Hence Art 43 applies to:
1. Subsequent marriage terminated by reason of reappearance of
the missing spouse
2. Subsequent marriage entered into by a spouse who is
previously married, without obtaining a judicial declaration of
nullity
3. Voidable marriages
Relevance of this rule
When the marriage is declared void by reason of Art 40 or declared
annulled by reason of Art 45, the property regime obtaining in these
kinds of marriages is either:
1. Absolute community of property
2. Conjugal partnership of gains
Therefore, the liquidation should follow the rules provided for under
102 and 129
Therefore
Marriages declared void by reason of psychological incapacity, lack of
marriage license or any other ground other than Art 40, the property
regime in these void marriages is not absolute community of property
or conjugal partnership of gains, hence you don’t follow the rules on
liquidation under Art 102 and 129
Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
The rules on liquidation of property regime in these kinds of marriages
is either governed by Art 147 or 148 (special kind of co-ownership)
Valdez v. RTC
The Supreme Court ruled that when the marriage is declared void, the property
regime existing in the marriage is either that under 147 or 148 and so such
regime shall be liquidated in accordance with the rules on co-ownership. The
only exception is when the marriage is declared void by reason of Art 40.
Ground
Who may ratify
(Cures the defect, hence no action for
annulment can be filed)
No parental consent
Party who failed to obtain the parental
consent after reaching the age of 21
Mental insanity
Person of unsound mind
Fraud
Innocent spouse upon discovery of the
fraud
Force, intimidation, and
undue influence
Innocent spouse upon cessation of the
cause
Do not be misled by the case of Carino v. Carino, where the Supreme
Court committed a very patent mistake
Carino v. Carino
Involves a policeman named Juanito. His first wife was Susan Igdao and the
second wife is Susan Yi. Without obtaining a judicial declaration of nullity of
marriage of his previous marriage, he contracted a second marriage. Juanito
died. The two wives scrambled over a piece of Juanito’s estate. Claiming that
everything should go to her, the second wife filed an action in court for the
collection of a sum of money. In support of his position, the second wife assailed
the validity of the first marriage for lack of marriage license which was duly
established.
Issue: Who gets to own the estate left by Juanito?
The Supreme Court ruled that the first marriage is void for lack of marriage
license but it does not mean to say that the second marriage is valid just because
the first marriage is void, because under Art 40, without the judicial declaration of
nullity of marriage, the subsequent shall likewise be void for being bigamous.
Susan Yi therefore cannot claim to be the legal wife.
Since the second marriage is void for being bigamous, the property regime
should be governed by Art 148 (co-ownership). Under 148, only the properties
which are acquired by the parties through their actual joint contribution. In this
case, the property left by Juanito consists of his salary, acquired by Juanito
alone. Susan Yi therefore got nothing.
The Supreme Court made a mistake because the marriage between Juanito and
Susan Yi is exactly the marriage contemplated under Article 40 because the
subsequent marriage was entered into without the benefit of the judicial
declaration of nullity of the first marriage. Hence, the property regime should
have been liquidated according to the rules of either Art 102 or 129 pursuant to
Art 43.
Article 44
Contemplates the same situation as 41 (subsequent marriage entered
into when the missing was declared presumptively dead), the only
difference is, in 44, both spouses to the subsequent marriage acted in
bad faith.
Impotency and STD cannot be ratified – because these are not
matters of defective consent and are prejudicial to the interest of an
innocent spouse.
Ground
Who can file for
annulment
No parental
consent
Person who did obtain
the parental consent
not
Article 45 Voidable Marriages
Marriages which are valid until declared annulled by the court (Defects
in the essential requisites of marriage)
with
Do not equate annulment from nullity
Nullity – refers to a void marriage
Annulment – refers to a voidable marriage
Grounds of annulment
These grounds must exist before or at the very moment of the
solemnization of the marriage and not afterwards
1. No parental consent between 18 and 21
2. Insanity
3. Physical incapacity (Impotency or Satiriasis)
4. Vitiated consent by fraud
 Concealment of a previous conviction by final judgment of a crime
involving moral turpitude
 Concealment by the wife of pregnancy at the time of the marriage by
another man
 Concealment of STD regardless of its nature existing at the time of
the marriage
 Concealment of drug addiction, habitual alcoholism, lesbianism or
homosexuality existing at the time of the marriage
5. Vitiated consent by force, intimidation or undue influence
6. Incurable Sexually Transmitted Disease
Take Note
Unlike a void marriage which cannot be ratified, a voidable marriage
can be ratified, except impotency and STD.
Effect of Ratification
No action for annulment for marriage can be filed because it is cured
by free cohabitation.
Within 5 years after
reaching 21
Insane spouse
During the time he
comes to reason,
before his death
Sane spouse
During the lifetime of
either spouses
Legal guardian
Lifetime of either
spouses
Mental insanity
Sane spouse, insane
spouse or legal
guardian of the insane
Fraud
Innocent spouse
Within 5 years after
discovery of the fraud
Force, intimidation,
undue influence
Innocent spouse
Within 5 years upon
cessation of the
cause
Impotency
Innocent spouse
Within 5 years after
the marriage
STD
Innocent spouse
Within 5 years after
the marriage
Effect if both acted in bad faith:
Not the ones mentioned in Art 43.
Effects:
1. Marriage is void
2. Children conceived within the void marriage – illegitimate
3. Property regime is Art 148 (special co-ownership)
4. All kinds of donations are revoked by operation of law
5. Insurance policy – void because they are not legally married
6. None may inherit from the other because of the absence of
relationship
Prescriptive period
Take Note
When the court declares the marriage annulled, the effects under Art
43 shall apply
Art 55 Legal Separation
Actually relative divorce. The spouses are still married, hence
continues to be an heir to the other, except if the supposed heir is the
guilty spouse and none of them can remarry.
Grounds for legal separation
These grounds could exist at any time.
1. Repeated physical violence or grossly abusive conduct
2. Moral pressure to compel the other to change religious or
political affiliation
3. Corruption or inducement
4. Final judgment sentencing the respondent of imprisonment of
more than 6 years
5. Drug addiction or habitual alcoholism
6. Lesbianism or homosexuality
7. Contracting of subsequent bigamous marriage
8. Sexual infidelity (The law does not define sexual perversion)
9. Attempt against the life of petitioner
10. Abandonment without justifiable cause for more than one year
Persons and Family Relations l Atty. Randi Torregosa l Reviewer by Tanya Ibañez
Sexual perversion
- Sex with animals
- Oral or anal sex
Effects of Legal Separation
Art 63 and 64
1. Children remain legitimate. Custody of the children shall be
awarded to the innocent spouse. (Except: If child is below 7, child
goes to the mother even if the mother is the guilty spouse)
2. The property regime is dissolved (Absolute community or conjugal
partnership Art 102 and 129)
3. Remains to be heir to the other. Guilty spouse is disqualified from
inheriting from the innocent spouse, whether testate or intestate.
4. All innocent may revoke donations made by him in favor of the
guilty spouse within 5 years from the time decree of legal
separation has become final
5. Any insurance policy where the guilty spouse is the beneficiary, it
is not revoked by operation of law, but revocable only at the
instance of the innocent spouse
Distinguish between a void from a voidable marriage
Void marriage
Voidable marriage
Different grounds
Void from the very beginning
Valid until annulled
An action for nullity of marriage
does not prescribe
An action for annulment prescribes
An action for nullity of marriage
may be filed only either by the
wife or the husband
An action for annulment may only
be filed by the injured party or the
legal guardians
An action for nullity of marriage
may be filed even after the death
of either of the parties
An action for annulment can only
be filed during the lifetime of both
parties
Can be attacked either directly or
collaterally
Can only be directly attacked
As to the issue of who can file a direct action to declare a void
marriage void:
1. If the marriage took place before the effectivity of the Family
Code (August 3, 1988), any interested party may file a direct
action to declare a void marriage void
2. Even if the marriage took place during the effectivity of the
Family Code or onwards, but the action of nullity was marriage
was filed before March 15, 2003 any interested party may file
March 15, 2003 - Administrative matter prescribing the rule for nullity of
void marriages took effect that only the wife or husband can file for an
action of nullity of marriage
If collateral attack – any party can file (intestate proceedings, action for
support)
If direct attack – either the husband or wife
Administrative matter 02110 (Read Dino v. Dino involving rules on nullity of
marriage and annulment of marriage)