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Title I
MARRIAGE

Chapter 1
REQUISITES OF MARRIAGE
(Arts. 1-26, FC)

1. Define marriage.
ANS: Under the FC, 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 the FC. (Art. 1,
FC.)

2. What are the 2 aspects of marriage?

ANS: Marriage has 2 distinct aspects. It may be understood either as an act or as a status.

It is an 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.
(Schouler, Law of Domestic. Relationship, par. 11.)
It is 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 and education of the
species, are or from time to time may thereafter be, assigned by law to matrimony. (Bishop,
Marriage, Divorce and Separation, Sec. 11.)

3.What are the essential requisites of a valid marriage?

ANS: No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer. (Art. 2, FC.)

4. What are the formal requisites of marriage?

ANS: The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in marriages of exceptional character; 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 2 witnesses of legal age. (Art.
3, FC.)

5. Two boys claimed to be the legitimate children of the deceased. They did not present
the marriage contract of their parents, but only a certification that records in the
municipality where the marriage was performed had been destroyed during the war. The
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wife testified as to the existence of the marriage, as did 2 family friends who themselves
attended the wedding and who know the couple and their children. The brother and sister
of the deceased, who denied knowing the claimants, said their brother died single and
without issue, and because there was no marriage contract, the alleged marriage was not
proven. Is this correct?
ANS: No. Although the marriage contract is considered primary evidence of marriage,
failure to present it is not proof that no marriage took place. Other evidence such as testimonies
of witnesses may be presented to prove marriage. The presumption is that a man and a woman
deporting themselves as husband and wife are in fact married and this can only be rebutted by
cogent proof to the contrary, which is not obtaining in the above-cited case. (Balogbog vs. CA,
G.R. No. 83598, BC 2nd Div, J. Mendoza, March 7, 1997, 80 SCAD 229.)

6. While "X", an Associate Justice of the Court of Appeals, was vacationing in Cebu
City, he was requested to solemnize the marriage of Serge and Joan in the residence of
Serge's parents. "X" could not refuse the request of both the parents of the couple because
they were his relatives. On the day set for the wedding, there were so many visitors at the
residence of Serge's parents so that "X" decided to solemnize the marriage at the kiosk of
the public plaza located nearby. Is the marriage of Serge and Joan valid? Give your
reasons. (1989)
ANS: Yes, because the requirement that the marriage be solemnized in a particular or a
public place is not an essential requisite of the law.

7. What are the effects of the following to a contract of marriage:

(a) Absence of any of the essential or formal requisites?
(b) Defect in any of the essential requisites?
(c) Irregularity in the formal requisites?
ANS: The effects are as follows:
(a) The absence of any of the essential or formal requisites shall render the marriage
void ab initio, except as stated in Art. 35(2) of the FC where marriage was contracted
with either or both parties believing in good faith that the solemnizing officer had the
legal authority to do so. (Art. 4, 1st par., FC.)
(b) A defect in any of the essential requisites shall render the marriage voidable as
provided in Art. 46 of the FC. (Art. 4, 2nd par., FC.)
(c) 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. (Art. 4, 3rd par., FC.)

8. What is the form prescribed by law for the marriage ceremony? (1916)
ANS: 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 2 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 the case of a marriage in articulo mortis, when the party at the point of death is unable to
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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. (Art. 6, FC.)

9. Who may contract marriage?

ANS: Any male or female of the age of 18 years or upwards not under any of the impediments
mentioned in Arts. 37 and 38 of the FC, may contract marriage. (Art. 5, FC.)

10. Paul, a 17-year-old Filipino and a permanent resident in the United States, married
Jean, a 16-year old American in Las Vegas, Nevada. The parents of both gave their consent
to the marriage. The marriage is valid in Nevada. Is it also valid in the Philippines? Give
your reasons. (1989)
ANS: No, the marriage is not valid. Under the FC, the law requires that the contracting
parties are at least 18 years of age. However, if the marriage took place before the effectivity of
the FC, the marriage will be valid since under the provisions of the CC, a marriage valid in the
place of celebration is valid in the Philippines except bigamous, polygamous, and incestuous
marriages as determined by Philippine law. The minimum age under the old law is 16 for the
male and 14 for the female.

11. Is marriage by proxy, whether in the Philippines or abroad, valid? Explain. (1973)
ANS: I distinguish.
If the marriage by proxy is celebrated in the Philippines, it is void because of non-
compliance with the formal but essential requisite of a marriage ceremony as prescribed in Art. 3
of the FC. According to this Article, it shall be necessary for the contracting parties to appear
personally before the solemnizing officer and declare in the presence of not less than 2 witnesses
of legal age that they take each other as husband and wife. It is obvious that marriage by proxy is
not allowed under this codal provision.

However, if the marriage by proxy is celebrated abroad, Art. 26 of the FC is applicable. 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 Arts. 35(1), (4), (5) & (6), 36, 37 and 39 of the FC. It is clear that
marriages by proxy fall within the purview of the general rule and not within the purview of the
exceptions.

12. Robert and Evelyn, both Filipinos, met in Los Angeles, California. They agreed to
get married on June 10, 1989. On June 7, 1989, Robert flew to New York due to an urgent
business matter but intended to return to Los Angeles on June 9, 1989, in time for the
wedding. The business emergency of Robert, however, lasted longer than he expected so
that he failed to return to Los Angeles. In order not to postpone the wedding, Robert
immediately called his brother Val who was also residing at Los Angeles to stand as his
proxy at the wedding, which the latter did. Is the marriage of Robert and Evelyn valid in
the Philippines? Give your reasons. (1989)
ANS: If the marriage was performed in accordance with the laws of California and valid
there, then the marriage is likewise valid in the Philippines.
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13. Who may solemnize marriages?

ANS: Marriages 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 of marriages in articulo
mortis between passengers or members as mentioned in Art. 31 of the FC;
(4) Any military commander of a unit to which a chaplain is assigned, in absence of
the latter, during a military operation, likewise only in the cases of marriages in articulo
mortis between persons within the zone of military operation, whether members of the
armed forces or civilians, as mentioned in Art. 32 of FC; or
(5) Any consul-general, consul or vice-consul in the case of marriages between
Filipino citizens abroad as provided in Art. 10 of the FC. (Art. 7, FC.)

(Note: Whereas under Art. 56 of the CC, marriages may be solemnized by mayors of cities and
municipalities, under the FC, mayors are no longer authorized to solemnize marriages. However,
in view of the Local Government Code which took effect on January 1, 1992, the duly elected
Mayors of the cities and municipalities can again solemnize marriages, thus, reverting back to
the old law. The term "Mayor" includes a Vice-Mayor who is the "Acting Mayor" or who is
merely "acting as Mayor.")

14. Explain the requirement of parental advice under our present marriage law. Is this
requirement indispensable for the validity of the marriage?
ANS: According to Art. 15 of the FC, any contracting party between the age of 21 and 25
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 3
months following the completion of the publication of the application therefor. A sworn
statement by the contracting parties to the effect that such advice has been sought, together with
the written advice given, if any, shall be attached to the application for marriage license. Should
the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement.
(Art. 15, FC.)
It is evident from the above provision that the requirement of parental advice is not
indispensable for the validity of the marriage. Consequently, even if the contracting parties are
able to secure a marriage license without the required parental advice and they got married even
before the expiration of the 3 months following the completion of the publication of the
application for a marriage license, the marriage is perfectly valid, although the parties are
criminally liable.

15. W got married to M when she was only 18 years of age. At the age of 19, she
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became a widow. One year later, she accepted the marriage proposal of X. Her parents,
however, are violently opposed to the marriage. In securing the marriage license so that the
2 can get married, would it be necessary for W to secure the consent as well as the advice of
her parents?
ANS: It is submitted that both the consent and advice of W's parents are necessary in order
to secure a marriage license.
In the case at bar, W, who had been previously emancipated by a previous marriage, is only
19 years of age and under R.A.6809 parental consent is required. The said provision is explicit,
which declares that contracting marriage shall require parental consent until the age of 21.
Therefore, W, in getting married to X is still required to secure parental consent.
It is also necessary for W to secure advice from her parents. Art. 15 of the FC does not
exempt a widowed person from this requirement. The reason for this is obvious. The basis is for
the welfare of the party concerned as well as the recognition of his or her never ending obligation
to honor his or her parents. However, if the advice be unfavorable, the marriage shall not take
place till after 3 months following the completion of the publication of the application for a
marriage license.

16. When is marriage counseling for the issuance of a marriage license required?
What is the ptn1Jose of the requirement? Who will do the counseling? What is the effect of
lack of certificate of marriage counseling?
ANS: Marriage counseling is required for the issuance of a marriage license under the FC in
cases where the parties need parental consent or parental advice. If only one of the contracting
parties need parental consent or parental advice, the other party must be present at the
counseling.
The purpose of the requirement is to enable the parties to find out if they are compatible
before they get married.
The priest or minister of the church or religious sect to which the party concerned belongs,
or a marriage counselor accredited by the proper government agency may do the counseling.
The effect of lack of certificate of marriage counseling is the same as the lack of parental
advice. The issuance of the marriage license is suspended for three months. (Art. 16, FC.)

17. Mr. Bradley Latta, an Australian national, married Josefina VaUar, a Filipino
citizen last January, 1990. It appears that Mr. Latta was issued a certificate of legal
capacity to contract marriage after the marriage which is not in accordance with Art. 21 of
the FC which requires that "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 diplomatic or
consular officials." The Australian Embassy claims that such a marriage is void from the
beginning. Is this marriage contracted without certificate of legal capacity but with a
marriage license void ab initio?
ANS: The marriage contracted in the above problem is not a void marriage. Arts. 2 and 3 of
the FC repealed Art. 53 of the CC with respect to the requisites of marriage. Thus, under Arts. 2
and 3 of the FC, a marriage has essential and formal requisites. Moreover, under Art. 4 of the FC,
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any irregularity in the formal requisites of a marriage, one of which is a marriage license, will
not affect the validity of the marriage. Thus, it has been held that the marriage under a license is
not invalidated by the fact that the license was wrongfully or fraudulently obtained without
prejudice to the prosecution of the parties (People vs. Belen, 45 O.G. Supl. No.5, p. 88; Melchor
vs. Melchor, 102 Neb. 790, 169 N. w: 720); and that the solemnizing officer does not have to
investigate whether or not the license has been properly issued. (People v. Janson, 54 Phil. 176.)
It is the absence of an essential or formal requisite that will render the marriage void ab initio. It
is worth observing that the law specifies what marriage are void from the beginning and the
absence of a certificate of legal capacity to marry is not one them. (Dept. of Justice Opinion No.
50, s. 1991.)

18. What is the rule on marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized? Exceptions. (1992)
ANS: Art. 26 of the FC provides that 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 (the rule of lex loci celebrationis).
The exceptions to the rule are the following:
(1) If either or both parties did not have the legal capacity to get married (Art. 35[1],
FC);
(2) The marriage is immoral for being bigamous or polygamous (Art. 35[4], FC);
(3) Consent of one party is lacking because of mistake as to identity of the other (Art.
35[5], FC);
(4) Those subsequent marriages that are void under Art. 53 of the FC (Art. 35[6],
FC);
(5) One of the parties was psychologically incapacitated at the time of the marriage to
comply with the essential marital obligations (Art. 36, FC);
(6) The marriage is incestuous (Art. 37, FC); or
(7) The marriage is void by reason of public policy. (Art. 38, FC.)

19. What is the effect of divorce obtained abroad by an alien spouse from his or her
Filipino spouse?
ANS: Under Art. 26 (second par.) of the FC, where a Filipino is married to a foreigner who
thereafter obtained a valid divorce abroad capacitating him or her to remarry, the Filipino spouse
shall likewise have the capacity to remarry under Philippine law. (As amended by E.O. No. 227.)

20. In 1989, Maris, a Filipino citizen, married her boss or Johnson, an American
citizen, in Tokyo in a wedding ceremony celebrated according to Japanese laws. One year
later, Johnson returned to his native land, Nevada, and he validly obtained in that state an
absolute divorce from his wife, Maris.
After Maris received the final judgment of divorce, she married her childhood
sweetheart Pedro, also a Filipino citizen, in a religious ceremony in Cebu City, celebrated
according to the formalities of Philippine la"'- Pedro later left for the U.S. and became
naturalized as an American citizen. Maris followed Pedro to the U.S. and after a serious
quarrel, Maris filed a suit and obtained a divorce decree issued by the court in the state of
Maryland.
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Maris then returned to the Philippines and in a civil ceremony celebrated in Cebu City
according to the formalities of Philippine law, she married her former classmate, Vincent,
likewise a Filipino citizen.
(a) Was the marriage of Maris and Johnson valid when celebrated? Is their
marriage still validly existing? Reasons.
(b) Was the marriage of Maris and Pedro valid when celebrated? Is their
marriage still validly existing now? Reasons.
(c) Was the marriage of Maris and Vincent valid when celebrated? Is their marriage
still validly existing now? Reasons.
(d) At this point in time, who is the lawful husband of Maris? Reasons. (1992)
ANS: (a) The marriage of Maris and Johnson was valid when celebrated because all
marriages solemnized outside the Philippines (Tokyo) in accordance with the laws in force in the
country where they are solemnized (Japan), and valid there as such, are also valid in the
Philippines.
Their marriage no longer subsists, because it has been dissolved by the absolute divorce
validly obtained by Johnson which capacitated Maris to remarry. (Art. 26, FC.)
(b) The marriage of Maris and Pedro was valid when celebrated because of the divorce
validly obtained by Johnson which capacitated Maris to marry Pedro.
The marriage of Maris and Pedro is still validly existing, because the marriage has not been
validly dissolved by the Maryland divorce. (Art. 26, FC.)
(c) The marriage of Maris and Vincent is void ab initio because it is a bigamous marriage
contracted by Maris during the subsistence of her marriage with Pedro. (Arts. 35 and 41, FC.)
The marriage of Maris and Vincent does not validly exist because Art. 26, FC does not
apply. Pedro was not a foreigner at the time of his marriage with Maris and the divorce abroad
(in Maryland) was initiated and obtained not by the alien spouse, but by the Filipino spouse.
Hence, the Maryland divorce did not capacitate Maris to marry Vincent.
(d) At this point in time, Pedro is still the lawful husband of Maris because their valid
marriage has not been dissolved by any valid cause. (Art. 26, FC.)