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Relevant
articles from Legal
Updates blog
Financial support for abandoned woman and family
Rights
and obligations of husbands and wives
Adultery,
concubinage and psychological violence
Divorce
obtained abroad by a Filipino citizen against alien spouse
recognized in the Philippines
Divorce
and remarriage
The
Amy Perez case: Psychological incapacity in annulment of marriages
Mediation
not applicable to domestic violence cases
Custody
battles over children: what determines fitness of a parent
over another?
Can
a mother be deprived of custody of her child?
Can
you legally force your spouse to live with and to love you?
When
a man is married to or living in with several women successively
or simultaneously, who has the right to inherit from him?
Free
PDF newsletters on legal issues available for download
Relevant
articles from Salt
and Light blog (on
relationships, marriage and family)
Lessons
in life and love from Miriam Quiambao
Relationship
tips for Shalani (and other single men and women)
Getting
married? Take a look at what "covenant marriage"
is
How
to save your marriage alone
Boundaries
in Marriage
Oldies
but Goodies: Ten Commandments for Wives and Husbands
Why
Marriages Fail: He said, She said ...
Communication:
Key to your Marriage
"Sad
Movies Always Make Me Cry"
Surviving
Marital Infidelity
Marital
infidelity: causes, consequences and conclusions
Hope
and help for the battered woman (4): Emotional abuse / psychological
violence
Hope
and help for the battered woman (5): Biblical response to
abuse; evangelical Christians are best husbands – University
of Virginia study
“Are
you ready? Let’s get it on!” Marriage: The Ultimate
Fighting Championship
All
about women: Move over, Jang Geum!
Do
wives really want husbands to share their feelings and thoughts
with them?
Emotional
word pictures as a communication tool for increasing intimacy
between husbands and wives
Hate
Eight? Eight kinds of husbands and wives
Love
Potion No. 9
Men
are terrible mind readers ...
Rights
and obligations between husband and wife from the Biblical
standpoint and that of the Family Code
Ruffa,
Ylmaz, TV Patrol, divorce and remarriage by Filipinos
The
only exercise some people do is jumping to conclusions: Mind
reading and negative interpretations
Transformers:
Why do persistent suitors become passive husbands?
Update
on the Mary Winkler case: A word of hope and encouragement
for pastors' wives and female church workers
Why
do men think the things they think, say the things they say,
and do the things they do?
Malcampo-Sin vs. Sin
G.R.
No. 137590.
March 26, 2001
The Family Code emphasizes the
permanent nature of marriage, hailing it as the foundation
of the family. It is this inviolability which is central to
our traditional and religious concepts of morality and provides
the very bedrock on which our society finds stability. Marriage
is immutable and when both spouses give their consent to enter
it, their consent becomes irrevocable, unchanged even by their
independent wills.
However, this inviolability
depends on whether the marriage exists and is valid. If it
is void ab initio,
the “permanence” of the union becomes irrelevant, and the
Court can step in to declare it so. Article 36 of the Family
Code is the justification. Where it applies and is duly proven,
a judicial declaration can free the parties from the rights,
obligations, burdens and consequences stemming from their
marriage.
A declaration of nullity of
marriage under Article 36 of the Family Code requires the
application of procedural and substantive guidelines. While
compliance with these requirements mostly devolves upon petitioner,
the State is likewise mandated to actively intervene in the
procedure. Should there be non-compliance by the State with
its statutory duty, there is a need to remand the case to
the lower court for proper trial.
Tenebro vs. CA
G.R. No. 150758.
February 18, 2004
We are called on to
decide the novel issue concerning the effect of the judicial
declaration of the nullity of a second or subsequent marriage,
on the ground of psychological incapacity, on an individual’s
criminal liability for bigamy. We hold that the subsequent
judicial declaration of nullity of marriage on the ground
of psychological incapacity does not retroact to the date
of the celebration of the marriage insofar as the Philippines’ penal laws are concerned. As such, an individual who
contracts a second or subsequent marriage during the subsistence
of a valid marriage is criminally liable for bigamy, notwithstanding
the subsequent declaration that the second marriage is void
ab initio on the ground of psychological incapacity.
Petitioner in this
case, Veronico Tenebro, contracted marriage with private complainant
Leticia Ancajas on April 10, 1990. The two were wed by Judge
Alfredo B. Perez, Jr. of the City Trial Court of Lapu-lapu City. Tenebro and Ancajas
lived together continuously and without interruption until
the latter part of 1991, when Tenebro informed Ancajas that
he had been previously married to a certain Hilda Villareyes
on November 10, 1986. Tenebro showed Ancajas a photocopy of
a marriage contract between him and Villareyes. Invoking this
previous marriage, petitioner thereafter left the conjugal
dwelling which he shared with Ancajas, stating that he was
going to cohabit with Villareyes.
On January 25, 1993,
petitioner contracted yet another marriage, this one with
a certain Nilda Villegas, before Judge German Lee, Jr. of
the Regional Trial Court of Cebu City, Branch 15. When Ancajas
learned of this third marriage, she verified from Villareyes
whether the latter was indeed married to petitioner. In a
handwritten letter, Villareyes confirmed that petitioner,
Veronico Tenebro, was indeed her husband.
The second tier of
petitioner’s defense hinges on the effects of the subsequent
judicial declaration of the nullity of the second marriage
on the ground of psychological incapacity.
Petitioner argues
that this subsequent judicial declaration retroacts to the
date of the celebration of the marriage to Ancajas. As such,
he argues that, since his marriage to Ancajas was subsequently
declared void ab initio, the crime of bigamy was not
committed.
This argument is not
impressed with merit. Petitioner makes much of the judicial
declaration of the nullity of the second marriage on the ground
of psychological incapacity, invoking Article 36 of the Family
Code. What petitioner fails to realize is that a declaration
of the nullity of the second marriage on the ground of psychological
incapacity is of absolutely no moment insofar as the State’s
penal laws are concerned.
As a second or subsequent
marriage contracted during the subsistence of petitioner’s
valid marriage to Villareyes, petitioner’s marriage to Ancajas
would be null and void ab initio completely regardless
of petitioner’s psychological capacity or incapacity. Since
a marriage contracted during the subsistence of a valid marriage
is automatically void, the nullity of this second marriage
is not per se an argument for the avoidance of criminal
liability for bigamy. Pertinently, Article 349 of the Revised
Penal Code criminalizes “any person who shall contract a second
or subsequent marriage before the former marriage has been
legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the
proper proceedings”. A plain reading of the law, therefore,
would indicate that the provision penalizes the mere act
of contracting a second or a subsequent marriage during the
subsistence of a valid marriage.
Thus, as soon as the
second marriage to Ancajas was celebrated on April 10, 1990,
during the subsistence of the valid first marriage, the crime
of bigamy had already been consummated. To our mind,
there is no cogent reason for distinguishing between a subsequent
marriage that is null and void purely because it is
a second or subsequent marriage, and a subsequent marriage
that is null and void on the ground of psychological incapacity,
at least insofar as criminal liability for bigamy is concerned.
The State’s penal laws protecting the institution of marriage
are in recognition of the sacrosanct character of this special
contract between spouses, and punish an individual’s deliberate
disregard of the permanent character of the special bond between
spouses, which petitioner has undoubtedly done.
Moreover, the declaration
of the nullity of the second marriage on the ground of psychological
incapacity is not an indicator that petitioner’s marriage
to Ancajas lacks the essential requisites for validity. The
requisites for the validity of a marriage are classified by
the Family Code into essential (legal capacity of the contracting
parties and their consent freely given in the presence of
the solemnizing officer) and formal (authority of the solemnizing
officer, marriage license, and marriage ceremony wherein the
parties personally declare their agreement to marry before
the solemnizing officer in the presence of at least two witnesses).
Under Article 5 of the Family Code, any male or female of
the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38 may contract marriage.
In this case, all
the essential and formal requisites for the validity of marriage
were satisfied by petitioner and Ancajas. Both were over eighteen
years of age, and they voluntarily contracted the second marriage
with the required license before Judge Alfredo B. Perez, Jr.
of the City Trial Court of Lapu-lapu City, in the presence
of at least two witnesses.
Although the judicial
declaration of the nullity of a marriage on the ground of
psychological incapacity retroacts to the date of the celebration
of the marriage insofar as the vinculum between the
spouses is concerned, it is significant to note that said
marriage is not without legal effects. Among these effects
is that children conceived or born before the judgment of
absolute nullity of the marriage shall be considered legitimate.
There is therefore a recognition written into the law itself
that such a marriage, although void ab initio, may
still produce legal consequences. Among these legal consequences
is incurring criminal liability for bigamy. To hold otherwise
would render the State’s penal laws on bigamy completely nugatory,
and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape the
consequences of contracting multiple marriages, while beguiling
throngs of hapless women with the promise of futurity and
commitment.
As a final point, we note that based on
the evidence on record, petitioner contracted marriage a third
time, while his marriages to Villareyes and Ancajas were both
still subsisting. Although this is irrelevant in the determination
of the accused’s guilt for purposes of this particular case,
the act of the accused displays a deliberate disregard for
the sanctity of marriage, and the State does not look kindly
on such activities.Marriage is a special
contract, the key characteristic of which is its permanence.
When an individual manifests a deliberate pattern of flouting
the foundation of the State’s basic social institution, the
State’s criminal laws on bigamy step in.
Abunado vs. People
G.R. No. 159218.
March 30, 2004
The subsequent judicial
declaration of the nullity of the first marriage was immaterial
because prior to the declaration of nullity, the crime had
already been consummated. Moreover, petitioner’s assertion
would only delay the prosecution of bigamy cases considering
that an accused could simply file a petition to declare his
previous marriage void and invoke the pendency of that action
as a prejudicial question in the criminal case. We cannot
allow that.
Ancheta vs. Ancheta
G.R. No. 145370.
March 4, 2004
The action in Rule
47 of the Rules of Court does not involve the merits of the
final order of the trial court. However, we cannot but express
alarm at what transpired in the court a quo as shown
by the records. The records show that for the petitioner’s
failure to file an answer to the complaint, the trial court
granted the motion of the respondent herein to declare her
in default. The public prosecutor condoned the acts of the
trial court when he interposed no objection to the motion
of the respondent. The trial court forthwith received the
evidence of the respondent ex-parte and rendered
judgment against the petitioner without a whimper of protest
from the public prosecutor. The actuations of the trial court
and the public prosecutor are in defiance of Article 48 of
the Family Code, which reads:
Article
48. In all cases of annulment or declaration of absolute
nullity of marriage, the Court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the
State to take steps to prevent collusion between the parties
and to take care that evidence is not fabricated or suppressed.
The task of protecting
marriage as an inviolable social institution requires vigilant
and zealous participation and not mere pro-forma compliance.
The protection of marriage as a sacred institution requires
not just the defense of a true and genuine union but the exposure
of an invalid one as well.
A grant of annulment
of marriage or legal separation by default is fraught with
the danger of collusion. Hence, in all cases for annulment,
declaration of nullity of marriage and legal separation, the
prosecuting attorney or fiscal is ordered to appear on behalf
of the State for the purpose of preventing any collusion between
the parties and to take care that their evidence is not fabricated
or suppressed. If the defendant-spouse fails to answer the
complaint, the court cannot declare him or her in default
but instead, should order the prosecuting attorney to determine
if collusion exists between the parties. The prosecuting
attorney or fiscal may oppose the application for legal separation
or annulment through the presentation of his own evidence,
if in his opinion, the proof adduced is dubious and fabricated.
Our Constitution is
committed to the policy of strengthening the family as a basic
social institution. Our family law is based on the policy
that marriage is not a mere contract, but a social institution
in which the State is vitally interested. The State can find
no stronger anchor than on good, solid and happy families.
The break-up of families weakens our social and moral fabric;
hence, their preservation is not the concern of the family
members alone.
Free
PDF newsletters on legal issues available for download
How
to become a Christian
Who
is God? What is man? Who is Christ? Repent and believe
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Executive
Order No. 209
The Family Code of the Philippines
(For
a discussion of relevant issues, please surf to the blogs Legal
Updates
and Salt
and Light.
You can also download
free PDF newsletters on various legal issues.)
Chapter 1.
Requisites of Marriage
Article 1. 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. (52a)
Art. 2.
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. (53a)
Art. 3. The
formal requisites of marriage are:
(1) Authority of the solemnizing
officer;
(2) A valid marriage license
except in the cases provided for in Chapter
2 of this Title; 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 two witnesses of legal age. (53a, 55a)
Art. 4. The
absence of any of the essential or formal requisites shall render
the marriage void ab initio,
except as stated in Article 35 (2).
A defect in any of the essential
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. (n)
Art. 5. Any
male or female of the age of eighteen years or upwards not under
any of the impediments mentioned in Articles
37 and 38, may contract marriage. (54a)
Art. 6. 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 two 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 case of a marriage in articulo mortis, when the party at the point of death is unable
to 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. (55a)
Art. 7. Marriage
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 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 case mentioned in Article
31;
(4) Any military commander
of a unit to which a chaplain is assigned, in the absence of the
latter, during a military operation, likewise only in the cases
mentioned in Article 32;
(5) Any consul-general,
consul or vice-consul in the case provided in Article 10. (56a)
Note: The Local
Government Code of 1991 restored to the mayors their authority
to solemnize marriages.
Art. 8. The
marriage shall be solemnized publicly in the chambers of the judge
or in open court, in the church, chapel or temple, or in the office
the consul-general, consul or vice-consul, as the case may be, and
not elsewhere, except in cases of marriages contracted on the point
of death or in remote places in accordance with Article
29 of this Code, or where both of the parties request the solemnizing
officer in writing in which case the marriage may be solemnized
at a house or place designated by them in a sworn statement to that
effect. (57a)
Art. 9. A
marriage license shall be issued by the local civil registrar of
the city or municipality where either contracting party habitually
resides, except in marriages where no license
is required in accordance with Chapter 2 of this Title. (58a)
Art. 10.
Marriages between Filipino citizens abroad may be solemnized by
a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties
of the local civil registrar and of the solemnizing officer with
regard to the celebration of marriage shall be performed by said
consular official. (75a)
Art. 11.
Where a marriage license is required, each of the contracting parties
shall file separately a sworn application for such license with
the proper local civil registrar which shall specify the following:
(1) Full name of the contracting
party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married,
how, when and where the previous marriage was dissolved or annulled;
(6) Present residence and
citizenship;
(7) Degree of relationship
of the contracting parties;
(8) Full name, residence
and citizenship of the father;
(9) Full name, residence
and citizenship of the mother; and
(10) 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.
The applicants, their parents or
guardians shall not be required to exhibit their residence certificates
in any formality in connection with the securing of the marriage
license. (59a)
Art. 12.
The local civil registrar, upon receiving such application, shall
require the presentation of the original birth certificates or,
in default thereof, the baptismal certificates of the contracting
parties or copies of such documents duly attested by the persons
having custody of the originals. These certificates or certified
copies of the documents by this Article need not be sworn to and
shall be exempt from the documentary stamp tax. The signature and
official title of the person issuing the certificate shall be sufficient
proof of its authenticity.
If either of the contracting parties
is unable to produce his birth or baptismal certificate or a certified
copy of either because of the destruction or loss of the original
or if it is shown by an affidavit of such party or of any other
person that such birth or baptismal certificate has not yet been
received though the same has been required of the person having
custody thereof at least fifteen days prior to the date of the application,
such party may furnish in lieu thereof his 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.
Such instrument shall contain the sworn declaration of two witnesses
of lawful age, setting forth the full name, residence and citizenship
of such contracting party and of his or her parents, if known, and
the place and date of birth of such party. The nearest of kin of
the contracting parties shall be preferred as witnesses, or, in
their default, persons of good reputation in the province or the
locality.
The presentation of birth or baptismal
certificate shall not be required if the parents of the contracting
parties appear personally before the local civil registrar concerned
and swear to the correctness of the lawful age of said parties,
as stated in the application, or when the local civil registrar
shall, by merely looking at the applicants upon their personally
appearing before him, be convinced that either or both of them have
the required age. (60a)
Art. 13.
In case either of the contracting parties has been previously married,
the applicant shall be required to furnish, instead of the birth
or baptismal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial decree
of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage.
In case the death certificate cannot
be secured, the party shall make an affidavit setting forth this
circumstance and his or her actual civil status and the name and
date of death of the deceased spouse. (61a)
Art. 14.
In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen
and twenty-one, they shall, in addition to the requirements of the
preceding articles, 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.
Such consent shall be manifested 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. The personal manifestation shall be recorded in both applications
for marriage license, and the affidavit, if one is executed instead,
shall be attached to said applications. (61a)
Art. 15.
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. (62a)
Art. 16.
In the cases where parental consent or parental advice is needed,
the party or parties concerned shall, in addition to the requirements
of the preceding articles, attach a certificate issued by a priest,
imam or minister authorized to solemnize marriage under Article
7 of this Code or a marriage counselor duly accredited by the proper
government agency to the effect that the contracting parties have
undergone marriage counseling. Failure to attach said certificates
of marriage counseling shall suspend the issuance of the marriage
license for a period of three months from the completion of the
publication of the application. Issuance of the marriage license
within the prohibited period shall subject the issuing officer to
administrative sanctions but shall not affect the validity of the
marriage.
Should only one
of the contracting parties need parental consent or parental advice,
the other party must
be present at the counseling referred to in the preceding paragraph.
(n)
Art. 17.
The 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 ten 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. This notice shall
request all persons having knowledge of any impediment to the marriage
to advise the local civil registrar thereof. The marriage license
shall be issued after the completion of the period of publication.
(63a)
Art. 18.
In case of any impediment known to the local civil registrar or
brought to his attention, he shall note down the particulars thereof
and his findings thereon in the application for marriage license,
but shall nonetheless issue said license after the completion of
the period of publication, unless ordered otherwise by a competent
court at his own instance or that of any interest party. No filing
fee shall be charged for the petition nor a corresponding bond required
for the issuances of the order. (64a)
Art. 19.
The local civil registrar shall require the payment of the fees
prescribed by law or regulations before the issuance of the marriage
license. No other sum shall be collected in the nature of a fee
or tax of any kind for the issuance of said license. It shall, however,
be issued free of charge to indigent parties, that is those who
have no visible means of income or whose income is insufficient
for their subsistence a fact established by their affidavit, or
by their oath before the local civil registrar. (65a)
Art. 20.
The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date
of issue, and shall be deemed automatically canceled at the expiration
of the said period if the contracting parties have not made use
of it. The expiry date shall be stamped in bold characters on the
face of every license issued. (65a)
Art. 21.
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 respective diplomatic or consular
officials.
Stateless persons or refugees from
other countries shall, in lieu of the certificate of legal capacity
herein required, submit an affidavit stating the circumstances showing
such capacity to contract marriage. (66a)
Art. 22.
The marriage certificate, in which the parties shall declare that
they take each other as husband and wife, shall also state:
(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; and
(7) That the parties have
entered into marriage settlement, if any, attaching a copy thereof.
(67a)
Art. 23.
It shall be the duty of the person solemnizing the marriage to furnish
either of the contracting parties the original of the marriage certificate
referred to in Article 6 and to send the duplicate and triplicate
copies of the certificate not later than fifteen days after the
marriage, to the local civil registrar of the place where the marriage
was solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting copies of the
marriage certificate. The solemnizing officer shall retain in his
file the quadruplicate copy of the marriage certificate, the original
of the marriage license and, in proper cases, the affidavit of the
contracting party regarding the solemnization of the marriage in
place other than those mentioned in Article 8. (68a)
Art. 24.
It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The documents
and affidavits filed in connection with applications for marriage
licenses shall be exempt from documentary stamp tax. (n)
Art. 25.
The local civil registrar concerned shall enter all applications
for marriage licenses filed with him in a registry book strictly
in the order in which the same are received. He shall record in
said book the names of the applicants, the date on which the marriage
license was issued, and such other data as may be necessary. (n)
Art. 26.
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 Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (17a)
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 have capacity to remarry
under Philippine law. (As amended by Executive Order 227)
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Chapter 2.
Marriages Exempted from License Requirement
Art. 27.
In case either or both of the contracting parties are at the point
of death, the marriage may be solemnized without necessity of a
marriage license and shall remain valid even if the ailing party
subsequently survives. (72a)
Art. 28.
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, the marriage may be solemnized
without necessity of a marriage license. (72a)
Art. 29.
In the cases provided for in the two preceding articles, the solemnizing
officer shall state in an affidavit executed before the local civil
registrar or any other person legally authorized to administer oaths
that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio
or barangay, is so located that there is no means of transportation
to enable such party to appear personally before the local civil
registrar and that the officer took the necessary steps to ascertain
the ages and relationship of the contracting parties and the absence
of legal impediment to the marriage. (72a)
Art. 30.
The original of the affidavit required in the last preceding article,
together with the legible copy of the marriage contract, shall be
sent by the person solemnizing the marriage to the local civil registrar
of the municipality where it was performed within the period of
thirty days after the performance of the marriage. (75a)
Art. 31.
A marriage in articulo mortis between
passengers or crew members may also be solemnized by a ship captain
or by an airplane pilot not only while the ship is at sea or the
plane is in flight, but also during stopovers at ports of call.
(74a)
Art. 32.
A military commander of a unit, who is a commissioned officer, shall
likewise have authority to solemnize marriages in articulo
mortis between persons within the zone of military operation, whether
members of the armed forces or civilians. (74a)
Art. 33.
Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of marriage
license, provided they are solemnized in accordance with their customs,
rites or practices. (78a)
Art. 34.
No license shall be necessary for the marriage 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. The contracting
parties shall state the foregoing facts in an affidavit before any
person authorized by law to administer oaths. The solemnizing officer
shall also state under oath that he ascertained the qualifications
of the contracting parties and found no legal impediment to the
marriage. (76a)
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Chapter 3.
Void and Voidable Marriages
Art. 35.
The following marriages shall be 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 the preceding Chapter;
(4) Those bigamous or polygamous
marriages not falling 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.
Art. 36.
A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization. (As amended by Executive
Order 227)
Art. 37.
Marriages between the following are incestuous and void from the
beginning, whether the relationship between the parties be
legitimate or illegitimate:
(1) Between ascendants and descendants
of any degree; and
(2) Between brothers and
sisters, whether of the full or half blood. (81a)
Art. 38.
The following marriages shall be void from the beginning for reasons
of public policy:
(1) Between collateral blood relatives whether legitimate or illegitimate, up to the
fourth civil degree;
(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;
(5) Between the surviving
spouse of the adopting parent and the adopted child;
(6) Between the surviving
spouse of the adopted child and the adopter;
(7) Between an adopted
child and a legitimate child of the adopter;
(8) Between adopted children
of the same adopter; and
(9) Between parties where
one, with the intention to marry the other, killed that other
person's spouse, or his or her own spouse. (82)
Art. 39.
The action or defense for the declaration of absolute nullity of
a marriage shall not prescribe.
(As amended by Executive Order
227 and Republic Act No. 8533; The phrase "However, in
case of marriage celebrated before the effectivity of this Code and falling under Article 36, such
action or defense shall prescribe in ten years after this Code
shall taken effect" has been deleted by Republic Act
No. 8533 [Approved February 23, 1998]).
Art. 40.
The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring
such previous marriage void. (n)
Art. 41.
A marriage contracted by any person during subsistence of a previous
marriage shall be null and void, unless before the celebration of
the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a well-founded belief
that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting
the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this
Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse. (83a)
Art. 42.
The subsequent marriage referred to in the preceding Article shall
be automatically terminated by the recording of the affidavit of
reappearance of the absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and
circumstances of reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the spouses
of the subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in case such fact is disputed.
(n)
Art. 43.
The termination of the subsequent marriage referred to in the preceding
Article shall produce the following effects:
(1) The children of the subsequent
marriage conceived prior to its termination shall be considered
legitimate;
(2) The absolute
community of property or the conjugal
partnership, as the case may be, shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his
or her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse
by a previous marriage or in default of children, the innocent
spouse;
(3) Donations
by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad
faith, such donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable;
and
(5) The spouse who contracted the subsequent marriage in bad faith
shall be disqualified to inherit from the innocent spouse by testate
and intestate succession. (n)
Art. 44.
If both spouses of the subsequent marriage acted in bad faith, said
marriage shall be void ab initio
and all donations by reason of marriage and testamentary dispositions
made by one in favor of the other are revoked by operation of law.
(n)
Art. 45.
A marriage may be annulled for any of the following causes, existing
at the time of the marriage:
(1) That the party in whose behalf
it is sought to have the marriage annulled was eighteen years
of age or over but below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person having
substitute parental authority over the party, in that order, unless
after attaining the age of twenty-one, such party freely cohabited
with the other and both lived together as husband and wife;
(2) That either party was
of unsound mind, unless such party after coming to reason, freely
cohabited with the other as husband and wife;
(3) That the consent of
either party was obtained by fraud, unless such party afterwards,
with full knowledge of the facts constituting the fraud, freely
cohabited with the other as husband and wife;
(4) That the consent of either party was obtained by force, intimidation
or undue influence, unless the same having disappeared or ceased,
such party thereafter freely cohabited with the other as husband
and wife;
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and
appears to be incurable; or
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable. (85a)
Art. 46.
Any of the following circumstances shall constitute fraud referred
to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous
conviction by final judgment of the other party of a crime involving
moral turpitude;
(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless
of its nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism, or homosexuality
or lesbianism existing at the time of the marriage.
No other misrepresentation or deceit
as to character, health, rank, fortune or chastity shall constitute
such fraud as will give grounds for action for the annulment of
marriage. (86a)
Art. 47.
The action for annulment of marriage must be filed by the following
persons and within the periods indicated herein:
(1) For causes mentioned in number
1 of Article 45 by the party whose parent or guardian did not
give his or her consent, within five years after attaining the
age of twenty-one, or by the parent or guardian or person having
legal charge of the minor, at any time before such party has reached
the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same
spouse, who had no knowledge of the other's insanity; or by any
relative or guardian or person having legal charge of the insane,
at any time before the death of either party, or by the insane
spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the injured
party, within five years after the discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by the injured
party, within five years from the time the force, intimidation
or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the
injured party, within five years after the marriage. (87a)
Art. 48.
In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that evidence
is not fabricated or suppressed.
In the cases referred to in the
preceding paragraph, no judgment shall be based upon a stipulation
of facts or confession of judgment. (88a)
Art. 49.
During the pendency of the action and in the absence of adequate
provisions in a written agreement between the spouses, the Court
shall provide for the support
of the spouses and the custody and support of their common children.
The Court shall give paramount consideration to the moral and material
welfare of said children and their choice of the parent with whom
they wish to remain as provided for in Title
IX. It shall also provide for appropriate visitation rights
of the other parent. (n)
Art. 50.
The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases
to marriages which are declared ab initio
or annulled by final judgment under Articles 40 and 45.
The final judgment in such cases
shall provide for the liquidation, partition and distribution of
the properties of the spouses, the custody and support of the common
children, and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings.
All creditors of the spouses as
well as of the absolute community or the conjugal partnership shall
be notified of the proceedings for liquidation.
In the partition, the conjugal
dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles
102 and 129.
Art. 51.
In said partition, the value of the presumptive legitimes
of all common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially approved,
had already provided for such matters.
The children or their guardian
or the trustee of their property may ask for the enforcement of
the judgment.
The delivery of the presumptive
legitimes herein prescribed shall in no
way prejudice the ultimate successional
rights of the children accruing upon the death of either or both
of the parents; but the value of the properties already received
under the decree of annulment or absolute nullity shall be considered
as advances on their legitime. (n)
Art. 52.
The judgment of annulment or of absolute nullity of the marriage,
the partition and distribution of the properties of the spouses
and the delivery of the children's presumptive legitimes
shall be recorded in the appropriate civil registry and registries
of property; otherwise, the same shall not affect third persons.
(n)
Art. 53.
Either of the former spouses may marry again after complying with
the requirements of the immediately preceding Article; otherwise,
the subsequent marriage shall be null and void.
Art. 54.
Children conceived or born before the judgment of annulment or absolute
nullity of the marriage under Article 36 has become final and executory
shall be considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be legitimate.
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