PERSONS AND FAMILY RELATIONS

CIVIL LAW REVIEW 1

GUIDE QUESTIONS
Part 2

NOTE: The following questions are only a guide to the questions that will or may be asked
during the recitation and are not meant to be the only questions. Take note also that the cases
applicable to each provision of the law, which you are presumed to have read and discussed in
the subject, will also form part of the recitations.

FAMILY CODE

I. MARRIAGE

1. Define marriage?

ANSWER:

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.

2. Distinction of a marriage contract from ordinary contracts.

ANSWER:

The distinctions are:

a. marriage is a special contract and a social institution while ordinary contract is merely a
contract;

b. marriage is governed by law on marriage while ordinary contracts are governed by law on
contracts;

c. marriage is not subject to stipulations except in property relations while ordinary contracts are
generally subject to stipulations;

d. in marriage, legal capacity is required while in ordinary contracts, minors may contract
through their parents or guardians or in some cases, by themselves;
e. in marriage, the contracting parties must only be two persons, one is a female and the other is a
male, while in ordinary contracts, there can be two or more parties, regardless of gender;

f. marriage is a permanent union while ordinary contracts have periods of efficacy fixed by the
parties;

g. in marriage, breach of obligations of husband and wife does not give rise to an action for
damages because the law provides penal and civil sanctions such as prosecution for adultery or
concubinage and provisions for legal separation while in ordinary contracts, breach of
obligations therein gives rise to an action for damages; and

h. marriage can be dissolved only by death or annulment not by mutual agreement while ordinary
contracts can be dissolved by mutual agreement and by other legal causes.

3. What do we mean by semper praesumitur pro matrimonio?

ANSWER:

A latin maxim meaning “the presumption is always in favor of the validity of marriage.”

II. REQUISITE OF MARRIAGE

1. What are the essential requisites of marriage?

ANSWER:

No marriage shall be valid, unless these essential requisites are present:

A. Legal capacity of the contracting parties who must be a male and a female; and

B. Consent freely given in the presence of the solemnizing officer.(Article 2)

2. What are the formal requisites of marriage?

ANSWER:

The formal requisites of marriage are:

A. Authority of the solemnizing officer;

B. A valid marriage license except in the cases provided for in Chapter 2 of this Title (instances
where marriage license is not required); and

C. 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.

3. What are the components of legal capacity?

ANSWER:

The components of legal capacity are:

A. Age –at least 18 years of age.

Under Philippine Civil Law, a Filipino who reaches the age of eighteen (18) is deemed to
have reached the age of majority and thus legally capacitated to enter into contracts, including
the special contract of marriage. However, parties between the ages of 18 and 21 will
additionally require their parents’ consent to the marriage, while those between 22 to 25 years
will need their parents’ advise before they are married.

The attainment of the required minimum age for marriage should be reckoned, not on the
date of filing of the application for issuance of a marriage license, but on the date of the
marriage. Pursuant to Article 6 of the same Code, parties may contract marriage on the date of
the solemnization of the marriage, ie., when hey appear personally before the solemnizing officer
and declare in the presence of not less than two witnesses of legal age they take each other as
husband and wife.

B. Sex.

Two females are incapable of entering into marriage. There is no constitutional protection
of the rights of marriage between two persons of the same sex. (Jones v. Hallahan, November 9,
1973).

C. Lack of legal impediment to marry

Legal capacity likewise relates to the freedom of each of the parties from any other
marriage. This means that each of the parties must be single, or annulled from a previous
marriage, or has had his foreign divorce judicially recognized in the Philippines.

Additionally, legal capacity relates to the relationship of the parties with each other. The
parties intending to get married must not be related by blood within the 4th civil degree of
relationship. The marriage should also not be that which is considered incestuous or that which
is contrary to public policy. (see Articles 37 & 38).
 4. How is manifestation of consent done?

ANSWER:

The consent involved here is that which is given by the contracting parties themselves
and not that coming from their parents. The consent must also be one that is real and not vitiated
or defective by any of the vices of consent under Articles 45 and 46 of the Family Code of the
Philippines. Examples of vices of consent are fraud, force, intimidation and undue influence.

The parties are required to appear personally before the solemnizing officer during the
marriage ceremony. Their personal appearance shall give the parties the opportunity to express
either their willingness to be married, or any undue pressure on them to enter into the marriage.

5. What is the effect when there is absence, defect, or irregularity of any of the
formal or essential requisites of marriage?

ANSWER:

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 shll render the marriage voiable as provided in
Artcle 45.

An irregualarity 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.

III. CEREMONY

1. Is there a necessity for a prescribed form or religious right in order for a

marriage to become valid?

ANSWER:

A ceremony is required, although no particular form for it is needed. And it must be

before a duly authorized person. It need not be written; signs would be sufficient (People v.
Cotas, C.A., 40 O.G. 3154) but in no case would a common law marriage between Filipinos be
considered as valid, for performance must be before the proper officer. (See Cruz v. Castandes,
C.A., 39 O.G. 324; Enriquez, et al. v. Enriquez, et al., 8 Phil. 565).
 2. Is the solemnizing officer duty bound to investigate whether the marriage license
was regularly issued?

ANSWER:

The solemnizing officer does not have to investigate whether or not the license had been
properly issued. (People v. Jansen, 54 Phil. 176).

3. Is marriage by proxy valid? What if the marriage by proxy was held abroad?

ANSWER:

If performed in the Philippines, the marriage is void because physical presence of both
parties is required under Art. 6 of the Family Code.

If performed abroad, whether between Filipinos or foreigners or mixed, it would seem

that the controlling Article is Article 26 of the Family Code. Hence, ordinarily, if the marriage by
proxy is valid as such where celebrated, it should be considered valid in the Philippines, without
prejudice to any restrictions that may be imposed by our Immigration Laws for purposes of
immigration.

IV. SOLEMNIZING OFFICER

1. Who are authorized to solemnize marriages?

ANSWER:

The 1987 Family Code of the Philippines’ Chapter 1, Article 7 recognizes the authority
of the following to solemnize marriages:

A. Any incumbent member of the judiciary is authorized to solemnize marriages within his
court’s jurisdiction (i.e. a Supreme Court justice could solemnize marriages anywhere in the
Philippines while a Municipal Trial Court judge of Dagupan Cit y cannot solemnize a marriage
in Quezon City);

B. Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his
church or religious sect. He should be registered with the civil registrar general and act within
the limits of the written authority granted him by his church or religious sect. Likewise, at least
one of the contracting parties should belong to the solemnizing officer’s church or religious sect;

C. Any ship captain or airplane chief only in the case of marriages in articulo mortis between
passengers or crew members, not only while the ship is at sea or the plane is in flight, but also
during stopovers at ports of call;
D. Any military commander of a unit to which a chaplain is assigned. The commander could
solemnize marriages in the absence of the chaplain or during military operation. Likewise, in the
case of marriages in articulo mortis between persons within the zone of military operation,
whether members of the armed forces or civilians;

E. Any consul-general, consul or vice-consul in the case of marriages between Filipino citizens
abroad. 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 the said
consular official.

2. Distinction of the effect of marriages solemnized outside the territorial

jurisdiction of mayors from that of the members of the Judiciary

ANSWER:

Under Art. 3 of the Family Code, one of the formal requisites of marriage is the authority
of the solemnizing officer. Under Art. 7, marriage may be solemnized by, among others, any
incumbent member of the judiciary within the court’s jurisdiction. Article 8, which is a directory
provision, refers only to the venue of the marriage ceremony and does not alter or qualify the
authority of the solemnizing officer as provided in the preceeding provision. If there is defect in
such requirement, the same would not make the marriage void, but merely subjects the officer to
criminal, civil, or administrative responsibility (Navarro v. Domagtoy, A.M. No. MT-96-1088,
July 19, 1996).

NOTE: In case of marriage solemnized by a mayor outside of his territorial jurisdiction, the
Local Government Code is silent on the matter; hence the abovementioned case may be applied
by analogy.

V. VALID MARRIAGE LICENSE

1. What is the period for the validity of a marriage license?

ANSWER:

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 cancelled 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.

2. What is the rule when either or both of the contracting parties applying for the
issuance of a marriage license are citizens of a foreign country?
ANSWER:

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)

3. What are the exceptions to the licensing requirement?

ANSWER:

The exceptions are:

A. Marriage in Articulo Mortis:

a. In case either or both of the contracting parties are at the point of death (Article 27)

b. 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 (Article 31)

c. by military commander of a unit, who is a commissioned officer, between persons

within the zone of military operation, whether members of the armed forces or civilians.
(Article 32)

B. 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. (Article 28)

C. Marriages among Muslims or among members of the ethnic cultural communities provided
they are solemnized in accordance with their customs, rites or practices. (Article 33)

D. 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. (Article 34)

E. marriage solemnized outside of the Philippines where no marriage license is required by the
country where it was solemnized.

4. Is there an instance wherein a man and a woman living together as husband and
wife need not obtain a marriage license in order to contract a valid marriage? If
yes, what are the requisites?
ANSWER:

Yes. Article 34 of the Family Code provides that ”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 are found no legal impediment to the marriage.”

The requisites are:

a. lived together as husband and wife for at least five years before the marriage;

b. without any legal impediment to marry each other during the period of cohabitation;

c. fact of absence of legal impediment must be absent at the time of the marriage;

d. parties must execute an affidavit that they are living together as husband and wife for 5 years
and that they do not have any impediment to marry; and

e. the solemnizing officer shall state under oath that he ascertained the qualifications of the
contracting parties are found no legal impediment to the marriage. (Manzano v. Sanchez, AM No.
MTJ-00-1329, March 8, 2001)

5. Should the absence of a legal impediment as provided in the preceding question

be for the entire five-year period of cohabitation?

ANSWER:

Yes. To be exempt from the license requirement under the 5-year cohabitation rule, the
cohabitation should be in the nature of perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage contract and is characterized by continuity, that is,
unbroken, and exclusivity, meaning, no third party was involved at anytime within the 5 years. It
should be a period of legal union had it not been for the absence of the marriage.

VI. AUTHORIZED VENUES OF MARRIAGE

1. Where are the authorized venues of marriage? Are there exceptions?

ANSWER:
 The marriage shall be solemnized publicly (1) in the chambers of the judge or in open
court, (2) in the church, chapel or temple, or (3) in the office the consul-general, consul or vice-
consul, as the case may be, and not elsewhere.

Exceptions:

1. In cases of marriages contracted on the point of death; or

2. In cases of marriages in remote places in accordance with Article 29 of this Code; or
3. 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.
(Article 8).

VII. MARRIAGES SOLEMNIZED ABROAD

1. What is the rule when a marriage is solemnized abroad? Are there exceptions?

The rule is “if valid where celebrated, it is also valid here”. This is the doctrine of lex loci
celebrationis, the law of the place of celebration.

The exceptions are:

A. Those prohibited under Article 35 (1, 4, 5, and 6):

a. Paragraph 1. Lack of legal capacity even with parental consent.

b. Paragraph 4. Bigamous or polygamous except as provided in Art. 41 of the Family Code on
terminable bigamous marriages.
c. Paragraph 5. Contracted through mistake of one of the party as to the identity of the other.
d. Paragraph 6. Contracted following the annulment or declaration of nullity of a previous
marriage but before partition, etc. (see Article 53).

B. Incestuous (see Article 37);

C. Void through psychological incapacity(see Article 36); and
D. Void for reasons of public policy (see Article 38).

2. What is the rule when a foreigner-spouse obtained a divorce decree?

The rule is if validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall likewise have the capacity to remarry under the Philippine law.
(Article 26, par. 2).

3. What are the requisites in order that the divorce decree be recognized under our
law?

The requisites are:

a. It must be a case of mixed marriage, one party a Filipino and the other alien;
b. The divorce may be obtained by either spouse (Republic v. Manalo, G.R. No. 221029, April
24, 2018); and

c. The divorce obtained by the either spouse must capacitate him or her to remarry.