Family Code Reviewer.docx

3. Only two persons of opposite sex may enter into a contract of marriage, and but one such contract may exist at the same time; while ordinary contracts may be entered into by any number of persons, whether of the same or different sex; 4. Marriage is not just a contract; it is likewise a social institution.

FAMILY CODE REVIEWER

MARRIAGE -

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Special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code.

MARRIAGE AS SOCIAL INSTITUTION -

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TWO ASPECTS OF MARRIAGE 1. Special contract 2. Social institution

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MARRIAGE AS SPECIAL CONTRACT -

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Generally considered that marriage is a civil contract, at least in the sense that it is entered into by agreement of the parties. However, while marriage is a contract and purely civil, it is also and specially a status or personal relation, founded on contract and established by law, under which certain rights and duties incident to the relationship come into being, irrespective of the wishes of the parties. Marriage is also a social institution regulated and controlled by the State.

PROOF OF MARRIAGE 1. Testimony of a witness to the matrimony; 2. Couple’s public and open cohabitation as husband and wife after the alleged wedlock; 3. Birth and baptismal certificate of children born during such union; and 4. The mention of such nuptial in subsequent documents. LAW FAVORS VALIDITY OF MARRIAGE -

DISTINGUISHED FROM ORDINARY CONTRACT -

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Marriage is a contract sui generis, differing in notable respects from ordinary contracts. It is a contract of peculiar character and subject to peculiar principles, being usually accorded more dignity than ordinary contracts, and the rules applicable to ordinary contracts are not ordinarily applicable to marriage contracts because of the nature of marriage relation and for reasons of public policy. The following are the distinctions between marriage and an ordinary contract: 1. The marriage contract cannot be revoked, dissolved or otherwise terminated by the parties, but only by the sovereign power of the state; 2. The nature, consequences and incidents of marriage are governed by law and not subject to agreement; while in ordinary contract, the parties are free to establish such clauses, terms and conditions provided the same are not contrary to law, morals, good customs, public order or public policy;

Specifically, the Constitution considers marriage as an “inviolable social institution,” and is “the foundation of family life which shall be protected by the State.” Our Constitution is so committed to the policy of strengthening the family as a basic social institution because the state can find no stronger anchor than on good, solid and happy families. The breakup of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members.

The law favors the validity of marriage because the State is interested in the preservation of the family and sanctity of the family is a matter of constitutional concern.

REQUISITES OF MARRIAGE 1. Essential 2. Formal ESSENTIAL REQUISITES OF MARRIAGE 1. Legal capacity 2. Consent FORMAL REQUISITES OF MARRIAGE 1. Authority of the solemnizing officer; 2. Valid marriage license; and 3. Marriage ceremony. 3 COMPONENTS OF LEGAL CAPACITY 1. Age requirement; 2. Sex of the parties; 3. Absence of legal impediments mentioned in Articles 37 and 38 of the Family Code.

AGE REQUIREMENT -

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Both the contracting parties must be at least eighteen (18) years of age, otherwise, he or she is not legally capacitated to contract marriage. A marriage contracted by any party below eighteen years of age is void from the beginning, even if such marriage is with the consent of the parents or guardians of the minor.

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AUTHORITY OF THE SOLEMNIZING OFFICER -

ABSENCE OF IMPEDIMENTS -

Impediments which may affect legal capacity are those mentioned in Articles 37 and 38: 1. Between ascendants and descendants of any degree, whether the relationship between the parties be legitimate or illegitimate; 2. Between brothers and sisters, whether of the full or half blood, and whether the relationship between the parties be legitimate or illegitimate; 3. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; 4. Between step-parents and step-children; 5. Between parents-in-law and children-inlaw; 6. Between the adopting parent and the adopted child; 7. Between the surviving spouse of the adopting parent and the adopted child; 8. Between the surviving spouse of the adopted child and the adopter; 9. Between an adopted child and a legitimate child of the adopter; 10. Between adopted children of the same adopter; 11. Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.

CONSENT -

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Necessary in order to create a valid marriage, and without consent the purported marriage is a mere nullity. Consent of the parties must be mutual, where one party alone consents to the contract there is no marriage.

MANIFESTATION OF CONSENT -

Contracting parties must “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.”

CONSENT MUST BE FREE OR VOLUNTARY -

Must be given freely, voluntarily and intelligently.

When consent is obtained through mistake, fraud, force, intimidation or undue influence, the marriage is annullable. If either of the contracting party is of unsound mind at the time of the celebration of the marriage, the marriage is likewise annullable.

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If the solemnizing officer is not authorized under the law to celebrate marriage, the same is ordinarily considered void ab initio. However, if either or both parties believed in good faith that the solemnizer had the legal authority to do so, then the marriage shall remain valid despite the solemnizer’s lack of authority.

PERSONS AUTHORIZED TO SOLEMNIZE MARRIAGES: 1. Incumbent members of the judiciary within the court’s jurisdiction; 2. Priest, rabbi, imam or minister of any church or religious sect duly authorized by his church or religious sect; 3. Ship captain or airplane chief, in cases of articulo mortis; 4. Military commanders of a unit, in cases of Articulo mortis; 5. Consul-general, consul or vice-consul, in limited cases. 6. Mayors. INCUMBENT MEMBERS OF THE JUDICIARY WITHIN THE COURT’S JURISDICTION 1. Must be incumbent members; 2. Must solemnize the marriage within their court’s jurisdiction. PRIEST, RABBI, IMAM OR MINISTER OF ANY CHURCH OR RELIGIOUS SECT DULY AUTHORIZED BY HIS CHURCH OR RELIGIOUS SECT 1. The priest, rabbi, imam or minister of any church or religious sect must be duly authorized by his respective church or sect; 2. Must be duly registered with the Civil Registrar General; 3. Must act within the limits of his written authority; and 4. At least one of the contracting parties must belong to the solemnizing officer’s church or sect. SHIP CAPTAIN OR AIRPLANE CHIEF, IN CASES OF ARTICULO MORTIS 1. Marriage must be in articulo mortis; 2. Marriage must be between passengers or crew members.

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Such authority may be exercised not only while the ship is at sea or the plane is in flight but also during stopovers at ports of call.

MILITARY COMMANDERS OF A UNIT, IN CASES OF ARTICULO MORTIS 1. He must be a commissioned officer, or an officer in the armed forces holding rank by virtue of a commission from the President; 2. Assigned chaplain to his unit must be absent; 3. Marriage must be in articulo mortis; 4. Marriage must be solemnized within the zone of military operations. - The contracting parties may either be members of the armed forces or civilians

1. Personal appearance of the contracting parties before the solemnizing officer; 2. Personal declaration that they take each other as husband and wife; and 3. Such declaration be done in the presence of the solemnizing officer and at least two witnesses of legal age. COMMON-LAW MARRIAGE -

WITNESSES -

CONSUL-GENERAL, CONSUL OR VICECONSUL, IN LIMITED CASES. -

Extends only to “marriages between Filipino citizens abroad.”

VALID MARRIAGE LICENSE -

Required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.

MARRIAGE CEREMONY -

Solemnization of a marriage comprehends a personal appearance together by the contracting parties before one authorized by law to solemnize marriages, and that the ceremony be entered into and performed by the parties together with a person authorized to perform such in the presence of at least two witnesses.

REQUIRED IN A MARRIAGE CEREMONY:

The requirement of at least two witnesses of legal age is, however, merely directory so that a failure to comply therewith does not invalidate the marriage.

EFFECT OF ABSENCE OF ANY REQUISITE -

1. 2. 3.

INSTANCES WHEREIN A MARRIAGE LICENSE IS DISPENSED WITH, TO WIT: 1. In case either or both of the contracting parties are at the point of death; 2. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar; 3. Marriages among Muslims or among members of the ethnic communities, provided these are solemnized in accordance with their customs, rites or practices; 4. Ratification of marital cohabitation between a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other.

Sometimes termed as “consensual marriage” or “marriage in fact.” A common-law marriage is not recognized as valid in the Philippines because marriage ceremony is a requisite for the validity of Philippine marriages

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Absence of any of the essential or formal requisites shall render the marriage void ab initio. The following marriages are void ab initio: Those marriages contracted by any party who is not legally capacitated; Those marriages where consent is lacking; Those solemnized by any person not authorized to perform marriages, except when the marriage will fall under the exception mentioned in Article 35(2) of the Family Code; Those solemnized without a valid marriage license, except those marriages exempt from the license requirement; and Common-law marriages and marriages by proxy.

EFFECT OF DEFECT OR IRREGULARITY IN THE REQUISITES -

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If any of the essential requisites is defective, the marriage is not void ab initio but merely voidable. If there is an irregularity in any of the formal requisites, the validity of the marriage is not affected but the party or parties responsible for such irregularity shall be civilly, criminally or administratively liable.

VENUE OR PLACE OF MARRIAGE 1. If the marriage is to be solemnized by a member of the judiciary, the marriage must be held in the chamber of the judge or in his sala in open court; 2. If the marriage is to be solemnized by a religious solemnizer, the marriage must be held in the church, chapel or temple of the religious solemnizer concerned;

3. If the marriage is to be solemnized by the consul-general, consul or vice-consul, the marriage must be celebrated in his office. CASES WHERE MARRIAGE MAY BE CELEBRATED ELSEWHERE: 1. Marriage contracted at the point of death; 2. Marriage contracted in remote places in accordance with the provisions of Article 29 of the Family Code; 3. Both parties requested the solemnizing officer in writing and under oath to solemnize the marriage elsewhere. WHERE TO APPLY FOR ISSUANCE OF MARRIAGE LICENSE -

Application for issuance of marriage license must be filed in the local civil registrar of the city or municipality where either contracting party habitually resides, although a license obtained elsewhere shall not affect the validity of the marriage.

WHAT MUST BE SPECIFIED IN THE APPLICATION 1. 2. 3. 4. 5.

6. 7. 8. 9. 10.

Full name of the contracting party; Place of birth; Age and date of birth; Civil status; If previously married, how, when and where the previous marriage was dissolved or annulled; Present residence and citizenship; Degree of relationship of the contracting parties; Full name, residence and citizenship of the father; Full name, residence and citizenship of the mother; and Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years.

DOCUMENTS ACCOMPANYING THE APPLICATION 1. Birth Certificate or Baptismal Certificate 2. Death Certificate of Spouse, Divorce Decree 3. Parental Consent - In case either or both of the contracting parties are between the ages of eighteen and twenty-one, they shall exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. - Consent shall be in writing by the interested party, who personally appears before the proper local civil

registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. 4. Parental Advice - Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. - If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following the 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. - If a marriage license is issued notwithstanding the absence of such parental advice or prior to the three-month suspension period under Article 15 of the Family Code, the same shall be considered as mere irregularity in the issuance of the license and shall not affect the validity of the marriage. 5. Certificate of Marriage Counselling - Issued by a religious solemnizer or a marriage counsellor duly accredited by the government is required in cases where parental consent or parental advice is needed. 6. Certificate of Legal Capacity - When either or both the contracting parties are citizens of a foreign country it shall be necessary for them before a marriage license can be obtained in the Philippines, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. NOTICE AND PUBLICATION OF APPLICATION -

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Local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for 10 consecutive days on a bulletin board outside the office of the local civil registrar located

in a conspicuous place within the building and accessible to the general public. VALIDITY OF MARRIAGE LICENSE -

Marriage license shall be valid in any part of the Philippines for a period of 120 days from the date of issue.

MARRIAGE CERTIFICATE -

Best documentary evidence of a marriage. However, the absence thereof is not proof that no marriage took place since other evidence may be presented to prove the existence of marriage.

CONTENTS OF MARRIAGE CERTIFICATE 1. the full name, sex and age of each contracting party; 2. their citizenship, religion and habitual residence; 3. the date and precise time of the celebration of the marriage; 4. that the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title; 5. that either or both of the contracting parties have secured the parental consent in appropriate cases; 6. that either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; 7. That the parties have entered into marriage settlement, if any, attaching a copy thereof. DISTRIBUTION OF COPIES -

Marriage certificate shall be accomplished by the person solemnizing the marriage in quadruplicate copies and each copy shall be distributed, as follows: 1. the original copy shall be given to either of the contracting parties; 2. the duplicate and triplicate copies shall then be sent to the local civil registrar of the place where the marriage was solemnized; and 3. the quadruplicate copy shall be retained by the solemnizing officer, together with the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8.

MARRIAGES THAT ARE VOID AB INITIO EVEN IF VALID IN THE PLACE WHERE IT WAS CELEBRATED: 1. If both parties are Filipinos and either one or both of them is below 18;

2. If one of the parties to a marriage is a citizen of the Philippines and he or she is below 18; 3. If the marriage is bigamous or polygamous; 4. If the marriage is contracted through mistake of one contracting party as to the identity of the other; 5. If one of the parties in a subsequent marriage is a party to a prior marriage which has been annulled or judicially declared void but fails to comply with the requirement of article 52 of the Code; 6. If one of the parties to a marriage, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage; 7. If the marriage is incestuous; 8. If the marriage is void by reason of public policy. MARRIAGES BETWEEN FILIPINOS CELEBRATED ABROAD CONSIDERED AS VALID IN THE PHILIPPINES, IF VALID IN THE PLACE WHERE IT WAS CELEBRATED 1. A marriage celebrated without a marriage license if such is not a requirement in the place where the marriage was celebrated. However, if the marriage is celebrated before the Philippine consular officials under article 10 of the Code, the requirement of a valid marriage license cannot be dispensed with and the absence of which shall render the marriage void. 2. A marriage celebrated by a person not included in the enumeration in article 7 of the Code if, under the laws of the place where the marriage is celebrated, he has the authority to solemnize marriages. 3. A proxy marriage MARRIAGES EXEMPT FROM THE LICENSE REQUIREMENT 1. Cases where either or both of the contracting parties are at the point of death; - Marriage shall remain valid even if the ailing party subsequently survives. - Solemnizing officer is required to execute an affidavit stating that the marriage was performed in articulo mortis and that he took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. 2. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar; - Residence of either party is so located that there is no means - of transportation to enable such party to appear personally before the local civil registrar

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Solemnizing officer is likewise required to execute an affidavit stating that the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar and that he took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of legal impediment to the marriage. 3. Marriages among Muslims or among members of ethnic cultural communities provided the same are solemnized according to their customs, rites or practices; 4. Marriages of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. REQUISITES FOR COMMON LAW COHABITATION 1. The man and woman must have been living together as husband and wife for at least five years before the marriage; 2. The parties must have no legal impediment to marry each other; 3. Fact of absence of legal impediment between the parties must be present at the time of marriage; 4. Parties must execute an affidavit stating that they have lived together for at least five years 5. Solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. VOID MARRIAGES -

Is deemed never to have taken place at all and cannot be the source of rights. Can be attacked collaterally. Have no legal effects except those declared by law concerning the properties of the alleged spouses, regarding co-ownership or ownership through actual joint contribution, and its effect on the children born to such void marriages

VOIDABLE MARRIAGE -

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Considered valid and produces all its civil effects, until it is set aside by final judgment of a competent court in an action for annulment. Can be generally ratified or confirmed by free cohabitation or prescription while a void marriage can never be ratified and is not subject to prescription. Can be assailed only in a direct proceeding for that purpose and not collaterally 224

MARRIAGES VOID FROM THE BEGINNING 1. Those contracted by any party below eighteen years of age even with the consent of parents or guardians; 2. 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 had the legal authority to do so; 3. Those solemnized without license, except those covered by the preceding Chapter; 4. Those bigamous or polygamous marriages not failing under Article 41; 5. Those contracted through mistake of one contracting party as to the identity of the other; and 6. Those subsequent marriages that are void under Article 53 CHARACTERISTICS OF PSYCHOLOGICAL INCAPACITY 1. Gravity - The incapacity must be grave or serious that the party would be incapable of carrying out the ordinary duties required in marriage. 2. Juridical antecedence - The incapacity must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage. 3. Incurability - The incapacity must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. GUIDELINES IN THE INTERPRETATION AND APPLICATION OF ART. 36 (MOLINA DOCTRINE) 1. The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. 3. The incapacity must be proven to be existing at the time of the marriage. 4. Such incapacity must also be shown to be medically or clinically permanent or incurable. 5. Such illness must be grave enough to bring about the disability of the party to assume essential obligations of marriage.

6. The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. 7. Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given respect in our court.