Family Code (Chapter 1: Requisites of Marriage)

Marriage is a special contract because:

• It can only be entered into by a man and a woman
• It does NOT expire
• Its nature, consequence and incidents are governed by law and NOT subject to stipulation except for marriage settlements that may fix property relations

Who may contract marriage?

• Any male or female of the age 18 or upwards with no legal impediments.

Two (2) Essential Requisites of marriage are:

• Legal capacity to marry of the contracting parties
• Consent freely given by the contracting parties in the presence of a solemnizing officer

Three (3) Formal Requisites of marriage are:

• Authority of the solemnizing officer
• Valid marriage license
• Marriage ceremony with both parties personally present, solemnized by an authorized solemnizing officer in the presence of at least 2 witnesses of legal age

What is the effect on the marriage of the absence of any of the formal or essential requisites?

• It will render the marriage void ab initio.

What is the effect on the marriage of a defect in any of the essential requisites?

• It will render the marriage voidable.

What is the effect on the marriage of an irregularity in the formal requisites?

• Marriage would still be valid but the party or parties responsible for said irregularity shall be civilly, criminally and administratively liable.

Who may solemnize a marriage?

• A judge (incumbent not retired) within the jurisdiction of his court.
• Priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church and registered with the civil registrar general provided that at least one of the contracting party belong to the solemnizing officer’s church or religious sect.
• A ship captain or airplane chief in cases of articulo mortis and the contracting parties are either passenger or crew of the ship or plane during its voyage.
• A military commander (at least 2nd lieutenant) of a unit (battalion), where a chaplain is assigned, in the absence of the latter, in cases of articulo mortis where the contracting parties, civilian or military are within the zone of military operation.
• Any consul general, consul, vice-consul in cases where Filipino citizens abroad want to contract marriage in accordance with the Philippine laws, shall assume the duties of the local civil registrar and solemnizing officer.
• Mayors or Acting Mayors , in default thereof, the Vice Mayor or any highest ranking member of the Sangguniang Bayan can solemnize marriage in pursuant to the Local Government Code.

Where can marriages be solemnized?

• In open court, church, chapel, temple.
• In the Office of consul-general, consul or vice-consul for Filipino citizens who wish to be married abroad under the Philippine laws and shall be solemnized by consul-general, consul or vice-consul.
• In a house or place designated by the contracting parties but within the jurisdiction of the solemnizing officer if they so request the latter in writing.
• In cases of marriage in articulo mortis:

a)      In a ship or airplane during its voyage where contracting parties are passengers or crew members. It shall be solemnized by the ship captain or airplane pilot only.

b)      In a Zone of Military Operation whether parties are civilian or members of armed forces. It shall be solemnized by a military commander of a battalion in the absence of a chaplain.

What are the requirements of a marriage ceremony?

• The contracting parties must appear personally before the solemnizing officer and declare in the presence of two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate signed by the contracting parties and the witnesses and attested by the solemnizing officer.
• In case of marriage in articulo mortis, when the party who is at the point of death is unable to sign the marriage contract, it shall be sufficient for one of the witnesses to write the name of said party. This fact will be attested by the solemnizing officer.
• There is no prescribed form or religious rite required for the solemnization of marriage. 

Who can issue a marriage license?

• The Local Civil Registrar where either of the contracting parties habitually resides.
• Consul-general, consul or vice-consul for marriages contracted abroad.

What shall be required of the contracting parties in applying for a marriage license?

• The parties shall file a separately sworn application for marriage license with either of the following requirements: (in order of priority)

1)      Original birth certificate or a copy certified by persons having custody of original

2)      Baptismal certificates or a copy certified by persons having custody of original

3)      Current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths witnessed by two persons of legal age. The nearest kin of the contracting parties shall be preferred as witnesses or, in their default, persons of good reputation in the province or the locality.

4)      Parents of the contracting parties appear shall personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties.

5)      Local civil registrar can personally look at the applicants and be convinced that either or both of them are of required age.

• If previously married the local civil registrar shall require either:

·         Death certificate of dead spouse or, in default thereof, an affidavit setting forth this circumstance and the party’s civil status and the name and date of death of deceased spouse, or

·         Judicial decree of absolute divorce, or

·         Judicial decree of annulment or declaration of nullity

• If any of the contracting party is between ages 18 and above but below 21, not having been emancipated by a previous marriage:

·         Consent to their marriage by father, mother, surviving parent or guardian or persons having legal charge of them in the order mentioned shall be required by the local civil registrar. An absence of this requirement will render the marriage annullable. Consent can be manifested in writing by the interested party or in the form of an affidavit.

• If any of the contracting party is between ages 21 and above but below 25:

·         They are obliged to ask their parents or guardian for advice upon the intended marriage.

·         They are also required to undergo marriage counseling conducted by an authorized solemnizing officer or a counselor duly accredited  by the proper government agency.

If they do not obtain consent, or if it be unfavorable, or if they do not undergo counseling, the marriage license shall not be issued till after 3 months following the completion of publication of the application of marriage license. If only one of the party is required to submit the requirements mentioned, the other party must still be present at the counseling.

• Citizens of a foreign country are required to submit a certificate of legal capacity to marry issued by their respective diplomatic or consular offices.

• For a stateless person or refugees from other countries, they shall be required to submit an affidavit stating the circumstance showing such capacity to contract marriage.

• Payment of prescribed fees for non-indigent parties otherwise its free.

What is the validity of the marriage license?

• It shall be valid anywhere in the Philippines but only for 120 days from the date of issue.

What is a notice of application for marriage license and why is it important?

• It is a notice prepared by the local civil registrar after receiving properly filled up marriage application, which contain the full names and residences and other relevant information about the contracting parties applying for a marriage license.

• It is necessary to inform the public of the impending marriage so that if anyone knows of any legal impediment to the said application, it can be reported to the local civil registrar.

How long is the publication?

• 10 consecutive days.

Where shall the notice of application for marriage license be published?

• It shall be posted on a bulletin board outside of the office of the local civil registrar located in a conspicuous place and accessible to the general public.

What happens to the application if any impediment is known by the local civil registrar or is brought to his attention?

• The local civil registrar shall note down the particulars thereof and his finding thereon but shall nonetheless issue the license after the completion of the period of publication unless ordered by a competent court .

What are the duties of the solemnizing officer?

1)      Furnish either of the contracting parties the original marriage certificate.

2)      Send duplicate and triplicate copies of the certificate not later than 15 days after the marriage to the local civil registrar of the place where the marriage was solemnized.

3)      Retain a quadruplicate copy of the marriage certificate and the original 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 this title of the Family Code.

What are the duties of the local civil registrar?

1)      Prepare the documents required by this title.

2)      Administer oaths without charge.

3)      Recording of all applications for marriage licenses in a registry book strictly in the order which the same are received.

Additional Notes:

• All marriages solemnized abroad in accordance with their laws shall also be valid in the Philippines except those marriages which are void ab initio as provided in this Code.
• Divorce is recognized by the family code but only in marriages between a Filipino citizen and a foreigner where the alien spouse obtained a divorce abroad. In such cases, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law.
• For purposes of remarriage:

1)      A foreigner must file a petition for change of status if he was previously married in the Philippines.

2)      For a Filipino citizen, judicial declaration of nullity is required.

Psychological Incapacity

SANTOS vs. COURT OF APPEALS, 240 SCRA 20, January 4, 1995

• Psychological Incapacity must be characterized by

a)      gravity,

b)      juridical antecedence, and

c)       incurability

• Psychological Incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants concomitantly must be assumed and discharged by the parties to the marriage which include their mutual obligations to live together, observe love, respect and fidelity and render help and support

• The intendment of the law is to confine psychological incapacity to the most serious cases of personality disorders clearly demonstrative of utter  insensitivity or inability  to give meaning and significance to the marriage.

REPUBLIC OF THE PHILIPPINES vs. COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, G.R. No. 108763, February 13, 1997

• Mere showing of “irreconcilable differences” and “conflicting personalities” in no wise constitute psychological incapcity. 

• Root cause of psychological incapacity must be

a)      medically or clinically identified,

b)      alleged in the complaint,

c)       sufficiently proven by experts, and

d)      clearly expained in the decision

• The incapacity must be proven to be existing “at the time of the celebration” marriage. 

• Such incapacity must be shown to be medically and clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related  to marriage, like the exercise of a profession or employment in a job

• Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage (Art 68-71 & Art 220-225). The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will.

BRENDA B. MARCOS vs. WILSON G. MARCOS, G.R. No. 136490, October 19, 2000

• The foregoing guidelines in Santos v. Court of Appeals do not require that a physician examine the person to be declared psychologically incapacitated. In fact, the root cause may be "medically or clinically identified." What is important is the presence of evidence that can adequately establish the party's psychological condition.