1. MARRIAGE LAWS IN THE PHILIPPINES By: Atty. Gaby Concepcion

2. SEMPER PRAESUMITUR PRO MATRIMONIO (The presumption is always in favor of the validity of marriage)

3. Marriage is a very special contract in that: The parties must be male and female. Actually, the Supreme Court has already stated that in a marriage contract, there are, in fact, 3 parties: the man, the woman and the State, considering that the State provides for the duties, privileges and restrictions which are deemed written into every marriage contract. Unlike ordinary contracts which may be terminated or rescinded by the parties upon mutual agreement, the marital bonds can only be severed by death, or upon a court declaration of nullity or annulment; The rights and obligation of the parties are not subject to stipulation by the parties and are fixed by law; and Breach of the marital contract does not give rise to an action for damages.

4. Article 1 of the Family Code (the “Code”) lays down the basic premise of our laws on marriage “ 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.”

5. ESSENTIAL REQUISITES Legal capacity of the contracting parties who MUST be at least 18 years old, male and female, and not under any impediment to marry. Consent freely given in the presence of the solemnizing officer. (Art. 2, Family Code)

6. Examples of void marriages arising from an absence of an essential requisite: Absence of legal capacity A marriage between an 18 year old boy and a 16 year old girl. A marriage between 2 girls or between 2 boys. The Family Code has settled the debate as to whether or not same-sex marriages may be performed in the Philippines. An interesting legal question has arisen, however. What about those who have opted to have a sex change operation?

7. Examples of void marriages arising from an absence of an essential requisite: Absence of legal capacity This question has been answered and settled by the Supreme Court in the case of Silverio vs. Republic of the Philippines Republic of the Philippines vs. Cagandahan

8. Absence of consent A marriage in jest A “theatrical” marriage

9. Other legal impediments that may affect the legal capacity of a person to contract marriage: Prior subsisting marriages (i.e. bigamous marriages); Incestuous marriages (i.e., those between ascendants and descendants/ brothers and sisters, whether of the full or half blood, legitimate or illegitimate) (Art. 37, Family Code)

10. Marriages that are void for reasons of public policy (Art. 38, Family Code), as follows Between blood relatives up to the 4th civil degree Between step-parents and step-children Between parents-in-law and children-in-law Between the adopter and the adopted Between the surviving spouse of the adopter and the adopted Between the adopted child and the legitimate child of the adopter Between adopted children of the same adopter 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, Family Code) Other legal impediments that may affect the legal capacity of a person to contract marriage:

11. a) Between brother-in-law and sister-in-law; b) Between stepbrother and stepsister; c) Between the adopted child and the illegitimate child of the adopter ; d) Between the adopted child of the husband and adopted child of the wife.) The following marriages are considered valid:

12. Examples of a Defect in any of the Essential Requisites which Renders the Marriage Voidable. When either party is between 18 and 21 years of age and the marriage is performed without parental consent When consent is vitiated by fraud, violence, intimidation or undue influence

13. Formal requisites of marriage under the Family Code (1) Authority of the solemnizing officer; (2) A valid marriage license, save for “marriages of exceptional character” (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

14. Under Art. 7 of the Family code, the following are the persons authorized to solemnize marriages 1.Any incumbent member of the judiciary within the court's jurisdiction; -members of the Supreme Court, Court of Appeals, Sandigangbayan and Court of Tax Appeals have jurisdiction to solemnize marriages nationally -members of the RTC and the MTC have jurisdiction within their territorial jurisdiction 2. Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect; 3. Any ship captain or airplane chief (only in marriages in articulo mortis between passengers and/or crew members) in the cases mentioned in Article 31;

15. 4.Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation (only in marriages in articulo mortis); 5.Any consul-general, consul or vice-consul (only for marriages abroad between Filipinos); 6.A mayor (pursuant to the Local Government Code) Under Art. 7 of the Family code, the following are the persons authorized to solemnize marriages

16. Marriage License Requirements Under Art. 9 of the Family code, a marriage license shall be issued by the local civil registrar where either contracting party resides. The application for the marriage license shall be posted for ten (10) consecutive days outside the office of the civil registrar. A license shall be valid in any part of the Philippines for a period of 120 days and shall be automatically cancelled at the end of said period. No valid marriage license, no valid marriage.

17. MARRIAGE CEREMONY No particular form of the ceremony is required. However, the personal appearance of the parties before the solemnizing officer shall be necessary

18. Example of Void Marriages Due to the Absence of a Formal Requisite Marriages solemnized by the Chief of Police (i.e., total absence of authority of the solemnizing officer) A marriage with no valid marriage license because the marriage was solemnized after the expiry date of said license A marriage with no valid marriage license as the marriage was solemnized one year prior to the issuance of the marriage license – Sy vs. Court of Appeals and Sy (G.R. No. 127263, 12 April 2000) -

19. Absence of a marriage ceremony Cacho vs. People of the Philippines (G.R. No. 1452261, 6 Feb. 2004) A marriage solemnized without a license, as certified by the local civil registrar. Republic of the Philippines vs. The Court of Appeals Carino vs. Carino (G.R. No. 132529, 2 Feb. 2001) Alcantara vs. Alcantara and the Court of Appeals (G.R. No. 167746, 28 Aug. 2007) Example of Void Marriages Due to the Absence of a Formal Requisite

20. A marriage solemnized with a false affidavit of cohabitation in violation of Art. 34 Ninal vs. Bayadog (G.R. No. 13378, 14 March 2000) De Castro vs. De Castro (G.R. No. 160172, 13 Feb. 2008) Republic of the Philippines vs. Dayot (G.R. No. 175581, 28 March 2008)

21. Effect of Irregularity in any Formal Requisites The marriage shall be valid but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (Art. 4, Family Code)

22. Examples of Irregularities in the Formal Requisites of a Marriage. Marriage license obtained in a place other than the residence of either party Absence of witnesses 10 days posting requirement of application for marriage license not complied with Non-compliance with the requirements of parental advice, marriage counseling or family planning services Failure of the solemnizing officer to execute the affidavit required in marriages of “exceptional character”

23. Sample Administrative Cases of the Supreme Court Aranes vs. Judge Occiano (A.M. No. MTS-02- 1390, 11 April 2002) Moreno v. Judge Bernabe (A.M. No. MTJ-94- 963, 14 July 1995) Cosca et al. vs. Palaypayon (A.M. No. MTJ-92- 721, 30 September 1994) NAVARRO VS. DOMOGTOY (A.M. No. MTJ-96- 1088, 19 July 1996)

24. VOID AND VOIDABLE MARRIAGES/ ANNULMENT VERSUS DECLARATION OF NULLITY.

25. VOID MARRIAGES Under the Family Code, the bases for determining what constitute void marriages are as follows Lack of one or more of the essential and formal requisites of marriage Reasons of public policy and Special cases and situations (e.g. psychological incapacity)

26. VOID MARRIAGES Under the Art. 35 of Family Code, the following are marriages that are void from the beginning: Those contracted by any party below eighteen years of the age even with the consent of parents or guardians; Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer that the legal authority to do so; Those solemnized without a license, except marriages of exceptional character;

27. VOID MARRIAGES Under the Art. 35 of Family Code, the following are marriages that are void from the beginning: Those bigamous or polygamous marriages not falling under Article 41; Those contracted through mistake of one contracting party as to the identity of the other; Those subsequent marriages that are void under Article 53.

28. VOIDABLE MARRIAGES In accordance with Art. 45 of the Family code, the following are the voidable marriages: Either party is between 18 to 21 years of age and no parental consent was obtained, unless the such party freely cohabited with the other as husband and wife after reaching the age of 21. Either party was of unsound mind unless such party freely cohabited with the other after coming to reason, That the consent of either party was obtained through fraud, unless such party, with full knowledge of the facts constituting fraud, freely cohabited with the other as husband and wife.

29. VOIDABLE MARRIAGES In accordance with Art. 45 of the Family code, the following are the voidable marriages: That the consent of either party was obtained through force, intimidation or undue influence, unless the same having disappeared, such party freely cohabited with the other as husband and wife. That either party was incapable of consummating the marriage (i.e., impotent) and such incapacity appears to be incurable That either party was afflicted with a sexually transmissible disease that is serious and incurable (e.g. AIDS).

30. The following shall constitute fraud as shall give rise to an action for annulment Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; Concealment of a sexually-transmissible disease, regardless of its nature, existing at the time of the marriage; or Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism existing at the time of the marriage.

31. Differences Between Void and Voidable Marriages As to legal effect, void marriages are inexistent from the beginning and thus produce no legal effects. They are not capable of ratification and children born thereof as illegitimate. Upon a declaration of nullity, the properties of the parties are settled in accordance with the rules on co- ownership.

32. Differences Between Void and Voidable Marriages Voidable marriages, on the other hand, are valid until annulled and may be ratified and “cleansed” of its defects by cohabitation. The remedy of annulment, however, may be barred by prescription. Thus, in case of fraud; force, violence, intimidation or undue influence; impotence; and affliction of a serious, incurable sexually transmitted disease, the action for annulment must be brought within 5 years by the injured spouse from discovery of the fraud, or from the cessation of the force, violence, intimidation or undue influence or from date of the marriage, in case of impotence and affliction with serious, incurable STD, as the case may be. Ratification of a voidable marriage shall bar an action for annulment even if the prescription period has not yet expired.

33. ART. 36. DECLARATION OF NULLITY As some people may have had the chance to comment, the closest thing to a divorce in the Philippines would be a declaration of nullity under Art. 36 of the Family Code which is premised on the psychological incapacity of one of the parties to comply with the essential marital obligations of marriage, even if such incapacity becomes manifest only after the marriage. It is referred to as a “declaration of nullity” as the law presumes that the marriage is void from the beginning and thus needs a formal declaration that it is indeed void.

34. ART. 36. DECLARATION OF NULLITY This concept of psychological incapacity is not new to us as it is based on canon law. It does not relate to a person’s mental capacity or physical condition, but relates rather to some psychological disorder that renders the person unable to comply with the essential obligations if marriage – for example, the conjugal act, the community of life and love, mutual help, procreation, rearing and education of children, and does not refer to “isolated idiosyncrasies”

35. Under the precedent–setting case of Republic of the Philippines vs. Molina This incapacity must be, among others: Grave enough to bring about an inability to assume the essential obligations of marriage Incurable or permanent Present at the time of the marriage even if its effects became manifest after the marriage Medically or clinically identified and proven by experts

36. CONCLUSION SEMPER PREAESUMITUR PRO MATRIMONIO Thank you very much.