PERSONS MIDTERM NOTES parties are free to stipulate the terms and conditions and to
redeem fit is not. Because the obligations, the right and
Coverage for Midterm: Article 1 to 67 Marriage to Legal Separation
The law on marriage is incorporated in the family code of the
Philippines so the provision governing marriage which used to be
part of the civil code are now superseded by the provisions of the
family code. Most provision are just reiterated in the family code
but good number of the provisions in the civil code are also
modify or even substituted by new provisions now incorporated in
the family code.
Any question involving marriage and its effects, nature and
consequences should now be addressed by the provision of the
family code, and not bothered the provisions of the civil code it
may only make things difficult.
What is Marriage?
Article 1 Marriage as Special Contract of permanent
union, entered into between a man and a woman, in accordance
with law for the establishment of conjugal and family right. It is
the foundation of the family and inviolable of social institution
whose nature, consequences and incidents and subject to
stipulation except that the marriage settlements make fixed the
property relations during the marriage within the limits prescribe
by the family code. (Legal definition of Marriage)
By definition itself, it is obvious that marriage is both status and a
contract.
Status
 Marriage is a personal affair between the parties. That is why
the rights and the obligations appurtenant to marriage are
personal to the parties, so the obligation to love, respect and
observe fidelity and support each other these are personal
obligations that cannot be delegated to someone else.
Example: Obligation to Sexual Intimacy with other.
Mr. Comendador cannot delegate this to Mr. Cid. He cannot
The only marriage that the law allows the parties to stipulate is
delegate his obligation to Cid saying “Cid I’m busy, I don’t have
with respect to Property Relations.
enough time to attend to the needs of my wife, can you pitch in?”
Well Mr. Cid would be happy to oblige. But that cannot be done
because that obligation belongs and is imposed on Mr.
Comendador. The obligation to support the other is personal, Mr.
Comendador cannot impose this obligation to Mr. Cid, although
Mr. Cid may have share the ecstasy perhaps but he cannot. Mr.
Comendador cannot delegate the burden on Mr. Cid because it is a
personal obligation. So it is really between the parties themselves,
in so far as other people they are strangers, even relatives, even
children they are strangers to the marriage because in so far as the
wife and the husband it is their personal affair.
Contract
 Not an ordinary contract, it is a contract imbued with public
interest. It is a private affair between two privates but makes
no mistake about it, it is not a private contract, and where the
obligations pertaining to marriage are imposed by law. That
is why its nature, consequences, its incidents are govern by
law, it cannot be subject to stipulations. Unlike an ordinary
private contract where the parties are free to stipulate, this
cannot be done in marriage.
Example:
Mr. Comendador and Ms. Gonzaga, while they may agree
that during their marriage they are free to fool around, that they
are that too liberated couple and they can make themselves
members of the swingers club, (sakto ba spelling sa swingers
club? Haha lols!) Swapping of spouses or switching partners
(grabi dmd!). One of the salient feature of this organization, there
are people who are into this. They are free to fool around to
everyone else, well this is nothing to prevent them from stipulating
of this arrangement. But if something goes wrong none of them
can go to court and enforce their agreement because marriage
imposes the mutual obligation of fidelity, you cannot to this away
from it by stipulation of the parties. People may stipulate as
unusual as liberated arrangement as can be like the members of the
swingers club but the court will not intervene in case, either one or
both parties go to court and try to enforce their agreement, the
court will not do that. The law will afford them no protection
because that in effect defeat the very essence of the marriage, its
nature, consequences and incidents are not subject to stipulations.
Or the parties, Mr. Comendador and Ms. Gonzaga. Ms.
Gonzaga stipulate not to support each other during the marriage,
nothing prevents them from stipulating but If Mr. Comendador
one day demands for it, Ms. Gonzaga cannot go to court to enforce
the contract “Your honor we agreed that we would not support
each other, I want to enforce this contract so that Mr.
Comendador cannot demand for support ” the court will not
intervene because you are stipulating on the consequences and the
incidents of marriage, in other words rights and obligations that
arise from the institution of the marriage cannot be bargain in a
way by the parties because it is governed by Law.
 Property relations pursuant to a validly entered into a
marriage settlement. This is a form of contract that they
would be spouses entered into before the solemnization of the
marriage but purely on the matter of property relations.
Example
o During the marriage whatever is acquire by both
should be their common property
o Or they may stipulate that whatever property is
brought by either spouse during the marriage at the
time of the solemnization should be their respective
separate properties. This can be stipulated.
Prenuptial agreement, this is allow, this pertains to
property relations.
o Or they may stipulate that during the marriage
their property shall govern by complete separation
of property regime to each its own. This is allowed.
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  There are various types of property regimes that the spouses
may entered into or adopt during the existence of the
marriage:
o Absolute community of property regime- whatever
is yours is mine, whatever is mine is yours.
o Conjugal partnership of gains- some properties are
common, some properties are separate.
o Complete separation of property regime to each its
own
o A mixture of any- a combination of the three
 Or the parties can stipulate that this type of property shall
belong to only one of them, or this type of property shall
belong to both of them. So any in manner that the parties may
deem convenient and they desire or fit, they can always
stipulate so long as it pertains to property relations but not as
to rights and obligations, because these are personal.
What are the Essential Requisites of Marriage?
 For marriage to be valid, it has to be complied with the
essential as well as the formal requisites of marriage. The
essential refers to the intrinsic aspect while the formal refers
to the extrinsic aspect of marriage.
 The essential requisites of marriage are the following:
o Legal Capacity of the contracting parties
o Consent freely given in the presence of the
solemnizing officer
Legal Capacity
 Legal capacity of the contracting parties as an essential
requisites of marriage, matters that fall under legal capacity
are the following:
o Sex or Gender requirement, which is male and
female (Note: Legal capacity does not refer only to
the sex of the parties, by specific provision of law
the parties should be male and female, and that’s
capacity as to the gender requirement is concern,
that should be male and a female)
o Age requirement, matter relating to legal capacity
and by expressed provision of law, our legal
capacity in so far as age is concern is 18. Anyone
who enters into marriage who is below 18 is not
legally capacitated and that is absence of a legal
capacity in so far as age requirement is concern.
o Absence of any Legal Impediments
What are the specific legal impediments? Which both spouses
should not be burden with, for him or for her to be legally
capacitated to marry.
 Legal impediments are brought about certain kind of
relationship that incapacitates someone from contracting
marriage
 Legal Impediments which the spouses cannot be burden with:
o The fact that the contracting parties is Unmarried.
Being married to another is a legal impediment,
absence of this legal impediment means that the
party deciding to contract marriage should be
unmarried otherwise if he is already married to
someone else he is deemed to be suffering from
legal impediment and therefore he is not legally
capacitated and so therefore there is an absence of
legal capacity.
o Relationship between parents and children, brothers
and sisters, this is a legal impediment brought about
by the Incestuous Relationship. If the contracting
parties or there would be contracting parties to the
marriage is in this kind of relationship, a mother
and a son, daughter and the father or brothers or
sisters, they are not legally capacitated because
they are burden with legal impediment by reason of
their incestuous impediment. This is under Article
37 Any marriage is Incestuous in character is
VOID!. (Please see Article 37 guys!)
o Legal impediments brought about by Public
Policy. These are the kind of marriage stipulated
under Article 38. (See Article 38 guys!) A marriage
between adopted parents and the adopted. A parent
in law and children in law etcetera! If any or both
parties are suffering from any of these legal
impediments he is deemed to be without legal
capacity so therefore marriage is VOID!
o The one in Article 53 that’s a legal impediment.
When the marriage is dissolve and there are
properties under Article 50, 51 and 53, the
properties of the spouses shall be liquidated,
distributed and obligation should be paid for and
the remaining assets should be divided between
parties. The liquidation and the distribution shall be
recorded in the appropriate registered properties,
failure to comply with the requirement of liquation,
distribution and the recording of the liquidation and
distribution in the appropriate registered property,
shall rendered the subsequent marriage VOID
under Article 53. If you are married to someone
who are previously married and whose previous
marriage has been dissolve, you make sure that
compliance with article 50, 51 and 52, otherwise
noncompliance will render the SUBSEQUENT
MARRIAGE VOID! This sense is a legal
impediment because it is imposed by law.
Note: Under our family code, same sex marriage has no place in the
Philippines because the requirement of legal capacity exclusively
refers only to male and female. Same Sex marriage for it to survive
in this country the family code will have to be amended.
One of the matters falling under the first requisite of legal capacity is
the sex or gender requirement; the law requires that they must be
both male and female.
But, when is sex determined or how do we determine that particular
party is a male or female or what law governs or determines sex?
In the Philippines we only recognize sex by natural method, sex or
gender in the Philippines is determined at birth. It is visually
determined by birth attendants, either by the doctor or midwife or
“hilot”, by looking at the genitals of the child. There’s only one factor
that determines one’s gender or sex at birth, and that’s the genitals.
There is a natural form prescribed for genitals, one for male and one for
female, there’s no confusion there. And so, what is determined by the
birth attendant or determination made at birth becomes immutable. So
when the child was determined to be male or female at birth by the
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genitals that the child possess, whether male or female, that
determination is immutable and it can never be changed. No amount of
surgical or scientific intervention could ever change one’s gender.
This is the ruling in the case of
Silverio vs. RP.
Silverio was born anatomically male, so he was registered as male
bearing the name of Rommel Silverio. But as he grows older, he
realized that he’s actually a woman imprisoned in a man’s body. He
feels, acts and thinks like a woman, and so he find himself living a
woman. His desire to perfect his gender and to get out of that anatomic
cage, resulted in Silverio undergoing sex reassignment surgery in
Bangkok, Thailand. This is a very lucrative business in Thailand and
even in Korea, sex reassignment surgery. As a result of the surgery he
really resembled like a perfect woman, a perfect piece of art, a woman.
And so he returned to the Philippines and to legalized everything he
filed a petition to correction of entries in his records of birth.
Specifically he wanted his gender be changed from male to female and
his name from Rommel to Mely. But the Supreme Court while
sympathizing the predicament of Mely, decided against him. The SC
said that in our jurisdiction, gender or sex is determined at birth and
visually determined by the birth attendant by examining the genitals of
the child. Once determined at birth it is immutable. There is simply no
law that allows change of gender or sex through scientific or surgical
intervention. Although if we look at the ruling, it’s obvious that SC
doesn’t close the possibility of sex change becoming accepted legally
in the society. The SC pointed it out that the problem of Mely is simply
the absence of a specific law that provides him that specific remedy.
Suggesting that the problem cannot be solved by the court because the
primary duty of the court is to apply and interpret the law. And, in the
case of Mely there’s simply no law to apply and interpret. The problem
of Mely can somehow be solved by Congress. Congress will have the
heart to pass a law allowing change of gender or sex by surgical
intervention. Legally and theoretically it is not a legal impossibility.
You distinguish this from
RP vs. Jeniffer Cagandahan.
The principle that sex or gender is determined at birth, applies only if
the genital of the child can be determined at once at birth. This
principle of immutability or determination of sex or gender at birth
doesn’t apply if the child right from birth possesses both genitals. There
are people or children endowed with the best of both worlds, endowed
with both the male and female genitals called “intersex”. This is a
medical condition or abnormality, they possesses both genitals. What
happens in Cagandahan is that she was determined and registered as
female but over the years as she grows older her biological
manifestation as female slowly disappeared. She stop having monthly
menstruations, she physically resembles more of a man, and so she
filed a petition in court to effect a corresponding change in her birth
records particularly change her gender from female to male and the
name from Jeniffer to Jeff. But the SC held and ruled in favor of
Jeniffer, the SC said, for people endowed or possessing this medical
condition “intersex”, the final determination of their sex or gender can
be done with the person concerned upon reaching the age of majority
and it is determined by his own choice. So it’s a choice of the person
concerned so long as the choice has some reasonable basis. It must be
founded on some reasonable basis. In this case, the SC said, there were
enough reasonable basis for Jeniffer to choose male gender given the
physical manifestations that her growing up is late over the years. The
SC said that it’s her choice and the court cannot do less, his petition
was granted to change gender and name that is of female to male and
Jeniffer to Jeff.
These are the 2 cases that involve that issue on gender or sex of an
individual. Take note of this two interesting cases.
Take note that legal capacity is determined by the nationality of the
individual concerned; remember Article 15, status, condition and
legal capacity determined by the nationality or national laws of the
individual concerned. So for purposes of marriage, the legal capacity of
contracting parties has to be determined by his/her own national laws.
That is why for purposes of determining legal capacity of party who are
nationals of foreign countries, Article 21 provides the rule that if an
applicant is a national or a citizen of a foreign country and wishes to
marry in the Philippines or wishes to apply a marriage license in the
Philippines, that foreign national must submit, take note instead of a
birth certificate or a baptismal certificate what is required is the
submission of the certificate of legal capacity to marry. This legal
capacity to marry is issued by the applicant’s own embassy or consular
office, take note. The reason why this certificate of legal capacity is to
be issued by the applicant’s own embassy or consular office is obvious,
because it’s the embassy or consular office of the applicant which
determines whether the applicant is legally capacitated to contract
marriage on the basis of the laws of their own country. So do not be
surprised that a 15 year old German or in Germany is legally
capacitated to contract marriage maybe issued a certificate of legal
capacity to marry by his consular official or office and that German
national maybe issued a marriage license to marry in the Philippines.
That’s precisely the effect of Article 21 in recognition of the nationality
theory. He’s governed by his or her national law.
What about the stateless? A stateless or a refugee, as no embassy or
consular office obviously because he is a citizen of no country, he’s not
a citizen of any country. Suppose Jack Sparrow comes here and wishes
to apply marriage license, he wants to marry a Filipina, he’s not a
citizen of any country. How he is suppose to comply with the
requirement of legal capacity or a marriage license can be issued in his
favor? This is again addressed by Article 21 which states that for
stateless or refugees, instead of a certificate of legal capacity to contract
marriage issued by consular office or embassy, he is to execute and
submit an affidavit stating the circumstances showing his legal capacity
to marry. Take note, the affidavit will not state the circumstances of his
being stateless but the circumstances showing his legal capacity to
marry. But again, legal capacity is a matter of law. What determines his
legal capacity, which or whose law determines his legal capacity in the
affidavit? The affidavit will state the circumstances, but the
circumstances must prove the legal capacity, but in order to prove legal
capacity since it’s a matter of law, it must coincide with a specific law
so that the stateless applicant can be deemed capacitated to marry in the
Philippines. But which law to use? Now under international law, while
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it is possible of a person to be without a country, it is not possible for a
person to be without a domicile because at all times somewhere a
person must be in some place and that is his domicile. There are 2 kinds
of domicile, the permanent domicile and the temporary domicile. If his
permanent domicile is in the territory of a particular country while he
may not be a citizen of that country but he’s a permanent domicile of
that country, then his affidavit should state the circumstances showing
his legal capacity to contract marriage in accordance with the laws of
that country where he is a permanent domicile. What about if he don’t
have a permanent domicile? Like Jack Sparrow on board on his black
pearl floating in the high seas, the high seas are not a territory of any
country and there is no law that exists in the high seas. In this case the
permanent domicile cannot be determined obviously in the absence of a
specific country, you now apply the principle of temporary domicile.
Where is his temporary domicile? Obviously it is the Philippines. When
he comes here to apply for marriage license, the Philippines is deemed
to be his temporary domicile. And therefore, in his affidavit he has to
state the circumstances showing his legal capacity to contract marriage
on the basis of Philippine law. He shall state there his legal age (already
18), name, not married, not related to the spouse and so on and so forth.
All the details required to be disclosed for one to apply for marriage
license. So you can now determine that the stateless individual applying
for marriage license is really legally capacitated to contract marriage.
Second essential requisite is consent freely given in the presence of
the solemnizing officer. Consent, what is meant by consent? There is
consent when the parties voluntarily or on their own entered into a
contract of marriage with the intention to be bound by the effects
thereof. That’s consent! The fact that a person entered into marriage by
some external force, like intimidation, violence or undue influence does
not negate consent, that only renders the consent vitiated but consent is
there. So arrange marriage, marriage at the point of a gun, these only
involves vitiated consent, the consent is deemed present only that the
consent is vitiated. So their marriage is valid although it can be
annulled under Article 45 but without the annulment, the marriage
remains valid because there is consent. Insanity, it’s only a defect in the
consent but it does not negate consent, that’s why insanity does not
render the marriage void, it only renders voidable. So an insane has the
capacity to consent, that’s the premise of this law. It assumes that an
insane person even if or despite his mental defect is capable of giving
consent although that consent is vitiated by mental by defect. It’s only a
ground for annulment; it’s only a voidable marriage but does not render
the marriage void.
So you distinguish a vitiated consent from absence of consent. Absence
of consent is entirely a different situation, there is absence of consent
when the parties involuntarily entered into a contract but they never
intended to be bound to the effects of the contract. There is absence of
consent even if someone or both parties voluntarily on their own went
ahead with the solemnization of their marriage, they wear their
marriage wedding gown and the man so, there were sponsors, there was
a priest and change of “I do’s” voluntarily, but they knew that they
never intended to be bound by the effects of marriage or the contract
thus there is absence of consent. Even if the ceremony was voluntarily
entered into by the parties, so the crucial thing is whether or not the
parties intended to be bound by the effects of the marriage contract.
This is the so called marriage in jest, a typical example of this kind is
marriage celebrated as part of a movie scene. All the marriages are
undertaken in the movie as part of the entire movie scene, the actors
there went through an elaborate wedding ceremony with all the props,
bells, sounds but they never intended to be bound by.
Take note that for the purposes of determining absence of consent in a
marriage, motive is never a factor. So long as there is consent and so
long as the parties intended to be bound by a contract, whatever
motives they may have in entering into the marriage it doesn’t negate
the requisite of consent. Because people may enter into marriage for
various motives, others for love, others for money, for convenience or
for lust but all these do not necessarily negate the element of consent so
long as the parties intended to be bound by the institution of marriage,
meaning they intended to be bound by the legal effects of the consent.
This was ruling in the case of
RP vs. Liberty Albios.
This is a marriage between a Filipina and an American citizen. It was
alleged that they entered into the marriage in order for the Filipina to
acquire American citizenship and in consideration for their agreement,
the Filipina promised to pay the American husband $2,000, so the
marriage went on. After the marriage, the American husband returned
to US and never fulfills his promise to help the Filipina wife to acquire
American citizenship and so the Filipina also didn’t fulfill her promise
to pay the $2,000. This resulted in Liberty Albios filing a petition in
court, a declaration of nullity of marriage on the ground of lack of
consent. It was argued that the parties entered into the contract of
marriage for convenience, for the wife to acquire American citizenship
and the husband to obtain $2,000, they never intended to establish a
conjugal and family life. But the SC said that motive is not an element
of a valid marriage, people could enter into marriage for various
motives and this should not be confused or mistaken for consent. In this
case, consent refers to the intention of the parties to be bound by the
contract. Now obviously in this case, while they never have the
intention to establish a conjugal or family life, that they obviously
intended to be bound to the effects of marriage contract because
precisely the wife wanted to acquire American citizenship by virtue of
the marriage. So how can the wife expect obtaining American
citizenship if the wife didn’t intended the marriage to be valid, because
it’s only valid marriage that will produce legal effects and some of
these legal effects, is the acquisition of the wife of the citizenship of the
husband. Obviously they intended to enter into a valid marriage
although their motives in that respect may not be pure. SC denied the
petition for the nullity of marriage, take note of the case. So love is
ideal but it doesn’t for the validity of marriage.
Take note, absence of the essential requisites renders the marriage
void.
Let’s go to the formal requisites. There are 3 formal requisites, and
absence of these requisites or any of them like essential requisites, also
renders the marriage void. So take note, absence of the requisites in the
essential or formal, the marriage is void. But a defect in the essential,
take note not the absence but defect of the essential renders the
4
marriage voidable, valid until annulled. The specific defects of the
essential requisites are those enumerated in Article 45. The grounds
there constitute the defect in the essential requisites, either referring to
the legal capacity or referring to the requirement of consent. Like
insanity, it relates to the requirement of consent; fraud, it relates to the
requirement of consent; under age, it relates to the requirement of legal
capacity; the lack of parental consent; all these are deemed to be simply
defects in the essential requisites which do not render the marriage void
but only voidable. Irregularity, take note, in the formal requisites does
not affect the validity of the marriage. It only makes the person
responsible for the irregularity and liable, either criminally, civilly or
administratively. Take note of the difference and its effects in so far as
the formal requisites.
Irregularity in the formal requisite does not affect the
validity of the marriage. It only makes the person responsible for
the irregularity liable, either criminally, civilly or administratively.
Take note of the difference under the effects: In so far as
formal requisites, it's either absence or irregularity. If it is absent, void.
Irregularity, valid but liability is incurred. If it is essential, it's either
absent or it is defective. If it is absent, void. Defective, voidable.
FORMAL REQUISITES
So, let's go the FIRST FORMAL REQUISITE, which is the
AUTHORITY OF THE SOLEMNIZING OFFICER. Who are
authorized to solemnize marriage? Art. 7 in your [inaudible], the person
authorized to solemnize marriage:
FIRST, Incumbent members of the judiciary within the
court's jurisdiction. Take note: the law provides that the judge or the
justice must be an incumbent one. So a retired justice, a terminated
justice or judge has no authority to solemnize marriage. And second,
remember: the authority of the members of the judiciary to solemnize
marriage is coterminous to their territorial jurisdiction.
There are various levels of court in the Philippines: LOWEST
is the Municipal Trial Court, the Municipal Circuit Trial Court. In the
city, we have Municipal Trial Court. In the provinces, we have
Municipal Circuit Trial Court. In the big cities, MTCs cover the entire
city. But in the provinces, the jurisdiction of some MTCs include
various municipalities. That’s how the law defines the jurisdiction of
some trial courts. So, the MTCs, the lowest courts, their jurisdiction is
defined, determined by the law that creates them. So, the MTC in Cebu,
just there, their court’s jurisdiction is just within the territory of Cebu
City. But in the MTC in… I think there’s an MTC in Talisay or in the
MTC in Danao, the jurisdiction of the MTC in Danao covers not only
Danao City but also the neighboring municipalities. In Lapu-Lapu, only
within Lapu-Lapu City. In Consolacion, MTC in Consolacion covers
Cordova under their jurisdiction. All I’m saying is that the MTC is
determined by its territorial jurisdiction. So an MTC judge in
Consolacion can only solemnize marriage within its territorial
jurisdiction. What about the RTC (Regional Trial Court)? The same.
RTCs are also coterminous to their territorial jurisdiction. Their
territorial jurisdiction is determined by the law that creates them. RTC
Danao, Lapu-Lapu, Mandaue, their jurisdiction is defined. Judges there
can only solemnize marriage within their territorial jurisdiction. What
about the Court of Appeals? The jurisdiction of the Court of Appeals
is the entire country. So a justice of a Court of Appeals like the justice
now of the Supreme Court, their jurisdiction now is nationwide, the
whole country. They can solemnize marriage in any part of the country.
What happens if an RTC or an MTC Judge solemnize
marriage outside their territorial jurisdiction, when the law itself
imposes limitation of the authority of an incumbent member of the
judiciary; that it should be within their territorial jurisdiction; will
that amount to an absence of an authority to solemnize marriage so
that marriage is void as there is an absence of a formal requisite?
In the case of Navarro v. Judge Domagtoy, and Arranes v. Occiano,
these involve administrative complaints against MTC judges for
solemnizing marriages outside their territorial jurisdiction. The issue of
whether or not the marriage is void was raised. In both cases, the
Supreme Court consistently ruled that if the marriage was solemnized
by a Judge beyond or outside his territorial jurisdiction, this does not
render the marriage void. This is only a mere irregularity in so far as
the requirement of authority of the solemnizing officer is concerned. So
the marriage remains valid, but the judge responsible for solemnizing
that marriage outside his territorial jurisdiction is administratively
liable. Judge Domagtoy and Judge Occiano (Occiano? Occiano.) were
both held administratively liable for solemnizing these marriages
outside their territorial jurisdiction.
SECOND, Priest, Rabbi, Imam, Minister of any church
or religious sect duly authorized by their church or religious sect,
duly registered in the Civil Registrar General, acting within the
scope within the scope of authority granted for them by their
church or religious authority, and provided that that any of the
contracting parties belong to the same religious sect or church of
the solemnizing officer. They are allowed to solemnize marriage
provided that all these conditions are met. Any rendition (?), for
example, on the marriage will only constitute a mere irregularity, like,
if none of the parties belongs to the same church or religious sect, that
will only constitute a mere irregularity so long as the priest, the rabbi,
the imam is authorized to solemnize the marriage by their church or
religious sect.
THIRD, Ship captain or airplane chief pilot – but only in
marriage considered as marriage in articulo mortis, a marriage when
one or both of the contracting parties are in the point of death. Do not
confuse this with danger of death. What makes a marriage as in articulo
mortis is because of the conditions of the parties involved. If either or
both of the parties are dying, even if the condition does not involve
danger of death, it is still articulo mortis. So the articulo mortis need
not take place in a situation wherein there’s a shipwreck. The flight
could be so good but someone, a passenger, simply had to be dying by
cause of a heart attack. A marriage in articulo mortis could be
undertaken, could be solemnized, even in the absence of danger of
death, if the parties are at the point of death. Take note that the
authority of the ship captain or the chief pilot applies only to marriage
between passengers or crew, and this authority extends not only when
the ship is at sea or the aircraft/plane is in flight but also during stop-
overs at ports of call. So even if the airplane, Cebu Pacific for example,
is grounded, is on the ground at the Mactan Cebu International Airport
5
waiting for a flight, waiting to take off, but one of the passengers
suddenly had a heart attack, a marriage in articulo mortis can be
solemnized because it is not required that a plane must be in flight,
stopovers, so long as the party is dying. So if the Custom Officer, not a
passenger, not a crew, who comes on board to inspect the aircraft and
suddenly has a heart attack, the pilot cannot solemnize a marriage in
articulo mortis because he is neither a passenger nor a crew.
So what happens if it is the pilot who is at the point of
dying while in transit? The law says “Chief Pilot”, so applying and
interpreting the provision, it would appear that the one involved in
articulo mortis marriage is the pilot himself, not one can solemnize –
but this is rather a very literal interpretation. There is a view holding
that in this case, the co-pilot can solemnize when the chief pilot
relinquishes his position to the co-pilot. The co-pilot now performs the
duty of the chief pilot. So an argument can be made that a co-pilot can
now solemnize an articulo mortis marriage, where one of the parties is
dying. That would be a reasonable interpretation. It is absurd that
passengers can only avail of this articulo mortis but the pilot himself
cannot.
FOURTH, Military Unit Commander assigned to a unit
where there is a chaplain, but in the absence of a chaplain, during
military operation, the Military Commander may solemnize
marriage in articulo mortis whether in the military or not, could be
civilians. The most important thing to remember there is the authority
extends only during military operation. The purpose, the obvious
reason there is during military operation, it could be impractical if not
dangerous to comply with the usual requirements for marriage license.
So given the hostile condition of the military operation, the law deems
it proper to suspend the usual requirement of a marriage license, and
because of necessity, marriage in articulo mortis can be done without
complying with the usual requirements.
Take note that for officers listed in ONE and TWO,
incumbent members of the judiciary and priests, imam, rabbi, ministers,
they can solemnize any form of marriage, even with a marriage in
articulo mortis. So, if you’re walking in Junquera with your girlfriend,
and a snatcher tried to snatch the cellphone of your girlfriend and you
fought back, the snatcher stabbed you, you’re now at the point of death
and Fr. Miranda happened to be there. You can ask Fr. Miranda to
solemnize the marriage in articulo mortis. Not so in case of a ship
captain or airplane pilot. Not so in case of a military unit commander,
because their authority to solemnize marriage is limited only in
marriages in articulo mortis. Art. 7 is explicit in saying that only in
marriage described as articulo mortis.
FIFTH, Consul General, Consul and Vice Consul. Again,
the authority of the Consul General, Consul and Vice Consul to
solemnize marriage is limited to a situation wherein the parties are both
Filipinos and their marriage takes place abroad. Take note: a Consul
General, Consul and Vice Consul is not authorized to solemnize a
mixed marriage, meaning a Filipino and a Foreigner. That is not
allowed. Only if they are both Filipinos and their marriage took place in
the Consulate Office of the Philippines stationed at a foreign country,
premised on the principle that the Consulate Office is an extension of
Philippine territory, it is as if it is solemnized in the Philippines; so
therefore, the governing law to determine the validity of the marriage is
Philippine law. But the only difference there is that the function of the
local civil registrar insofar as the issuance of a marriage license is now
performed by the Consul General, Consul and Vice Consul, because
there is no local civil registrar there. So, the Consul General, the Consul
and the Vice Consul acts like the local civil registrar and the
solemnizing officer at the same time.
SIXTH, not included in the Article 7 of the Family Code
but pursuant to the provision of the Local Government Code,
Municipal or City Mayors are now authorized to solemnize
marriage. This used to be incorporated in the New Civil Code but
deleted in the Family Code, incorporated in the Local Government
Code. So, now, the Municipal or City Mayors are now authorized to
solemnize marriage. The question however, which is now a perennial
problem that involves the authority of the mayor to solemnize marriage,
is whether the authority of the mayor to solemnize marriage is limited
only within the territory or jurisdiction of the municipality where that
mayor sits, whether Mike Rama can solemnize marriage within the
territory of Cebu City. What happens if Mike Rama solemnizes in
Manila? Another issue is whether or not the authority of the City or
Municipal Mayor to solemnize marriage is limited only within parties
who are constituents of the city or municipality where the mayor sits.
The Local Government Code decided, it simply enumerates the
functions and authority of the City or Municipal Mayor, and one of
them is he ought to solemnize marriage. The prevailing view is, while
some authors would suggest that the authority of the mayor should only
be limited within his jurisdiction, which is also logical; but the
prevailing doctrine now is even when the mayor solemnizes marriage
outside, this may only constitute a mere irregularity, applying by
analogy, a marriage by an MTC Judge outside his territorial
jurisdiction. Take note that Article 7 is very specific as to the authority
of the solemnizing judge as to solemnize marriage – it says there
“within the court’s jurisdiction”; and yet, even if the law is explicit that
the authority is limited only within his territorial jurisdiction, the
jurisprudence says that it is only a mere irregularity. So, by analogy, if
the mayor solemnize marriage outside his municipality, when normally
this may not be within his authority, by applying by analogy, this will
only constitute irregularity in the formal requisites of marriage. It does
not render the marriage void. But you know, in the absence of a
specific law, it’s a failed day for lawyers. It’s only the Supreme Court
who can decide, the final arbiter. Paras, I think, is of the opinion that it
should only be within the territory of the mayor. But a good argument
there is if a marriage solemnized by a judge outside his territorial
jurisdiction is only an irregularity even if the law itself is explicit as to
its limitations, why would a marriage solemnized by mayor be any
different when the law does not even impose the limitations as to its
jurisdiction? The Local Government Code does not impose the
limitations. But there’s no decided case yet. It’s still open for debate.
By expressed provision of law, as I said, absence of a formal
requisite renders the marriage void. Absence of authority of the
solemnizing officer renders the marriage void, but the expressed
provision of the law, even when the person solemnizing the marriage is
without authority to solemnize, but if the contracting parties or one of
them or both of them honestly believe that the solemnizing officer has
6
such authority, the marriage remains valid even in the absence of an
actual authority.
But you have to distinguish two different situations – you
distinguish a situation where it’s a mistake of fact from a situation
where it’s more of a mistake of law; because if the mistake of the
parties constitutes a mistake of law, this rule does not apply. It is only
when the mistake consists in a mistake of fact that the exception
applies. So that, if the parties believe that the president can solemnize a
marriage, this is a matter of law. You apply the principle that ignorance
of the law excuses no one, so the parties cannot argue that “we were
mistaken, we honestly believed that if a mayor can solemnize a
marriage, why can’t the President?” But this is a matter of law, so the
parties cannot be excused; hence, the marriage is void. But if the parties
believe that PNoy, who looks like a bishop, is a priest or a bishop for
example, this is now a mistake of fact. Believing that one is someone
else when he’s not is a mistake of fact. So, if a sacristan acts like a
priest, sotana pud, nadala man niyang insenso, it’s not a mistake of law.
There is no law involved there. So, it’s a mistake of fact, you apply the
exception. That’s the opinion of Katrina Legarga in her book, it’s one
of the books I assigned. Distinguish mistake of law from mistake of
fact. The situation applies only to a mistake of fact situation. You
believe that a judge is still incumbent, that’s mistake of fact. But if you
believe that the barangay captain is authorized, it’s a mistake of law.
So, let’s go to the SECOND FORMAL REQUISITE – A
VALID MARRIAGE LICENSE.
Who issues the marriage license? It’s the Local Civil
Registrar. But the authority of the Local Civil Registrar to issue a
marriage license is conditioned upon one requirement: that both or
either of the parties applying for a marriage license must be a resident
of the place where the Local Civil Registrar sits. So if the application
for a marriage license is filed in the Local Civil Registrar in Cebu City,
it is required that at least one of the applicants is a resident of Cebu
City. What happens if a marriage license is issued by a wrong Local
Civil Registrar – parties are residents of Cebu City but the
marriage license is issued by a Local Civil Registrar Bogo? This is
only an irregularity. The marriage license is valid, the marriage itself is
valid, but the Local Civil Registrar concerned who issued the marriage
license shall be held civilly and administratively liable. You apply for a
marriage license, both of you should file separate, under oath. You
provide for the details of your personal circumstances, your
relationship with the other, and you should submit supporting
documents for Filipinos and for pure applicants, which means single
applicants, you need to submit your birth certificate. In the absence of
your birth certificate, your baptismal certificate; or you may have
witnesses – your parents who would attest to your actual age or when in
the Civil Registrar, both of you appeared in his office, determined for
himself that there is no doubt as to your actual age because of the way
you look, that would suffice for the Civil Registrar to issue the
marriage license. The application must be published at the bulletin
board of the Local Civil Registrar concerned within ten days, so the
whole world will be informed that Mr. So and So are applying for a
marriage license, and anyone is invited, encouraged to come forward to
inform the Local Civil Registrar of any legal impediments or any
objection to the issuance of a marriage license.
o So this a the only kind of contract which is supposed to be
private but you need to publish and accept strangers who may
haven’t project.
 Take note:
Even if the local civil registrar is personally aware of the
legal impediments of either parties or made aware of any
legal impediment the local civil registrar has no authority to
refuse the issuance of the marriage license.
The local civil registrar is only required to know in
the applications of the marriage license.
If he wants the marriage not to proceed he must go
to court and file for an injunction.
o Marriage licensed have a lifespan of 120days
 Can be used anywhere in the Philippines
 But only for 120days and it automatically expires
Exemption where Marriage License
General Rule: Requirement of Marriage License except for the
following:
1. Articulo Mortis – where at least one of the parties is in the
brink of death.
2. In case parties reside in remote places – there’s no means of
transportation enabling them to appear personally before the
local civil registrar. The solemnizing officer is required to
execute an affidavit that parties reside in a remote place and
ascertains the ages and absence of any legal impediments.
This will be submitted to the local civil registrar.
3. Marriages between Muslims or other Ethnic Groups - as long
as the marriages of ethnic groups, pagans and Muslims were
performed in accordance with their customs, rites and
practices, it will be considered valid.
4. Persons cohabiting for at least 5years - the parties are living
together as husband and wife for at least 5years without legal
impediments to marry.
 Instead of marriage license they’re required to pass
an affidavit of cohabitation attesting that they’re
living together for at least 5years.
 Purpose for the exception: to do away with
publication requirement and to spare them from
scandalous relationship.
 Question: Is it required that the parties must be free
from any legal impediment during the period of at
least 5years of cohabitation? Or is it enough only that
the parties are not suffering from any legal
impediments at the very moment the marriage is
solemnized?
 Niñal vs Badayog – the SC: for the principle of
ratification of marital cohabitation to acquire the
cohabitation must be exclusive and continuous.
Meaning the parties must be living like husband and
wife, the only thing lacking is the marriage. So that
the 5year cohabitation must be free from legal
impediments.
 But subsequently the case of Manzano vs Sanchez – a
complaint against the judge who solemnized marriage
7
 under Article 34 even if one of the parties there was
married to someone else and the marriage was still
subsisting. In this case the SC enumerated the requisite
for Article 34.
o the absence of legal impediments must be
present on the time of the solemnization of
their marriage, implying that it is not necessary
that the parties are free from legal impediments
for the 5year cohabitation. Because Article 3
says requirements for marriage must be present
only at the celebration of the marriage and not
at any other point in time.
 Free from any legal impediments. So if a 20year old
submitted an affidavit of cohabitation, there’s obviously
a legal impediment, which is the lack of age
requirement. Because by the time they started
cohabiting he/she is still 15years old.
 In Niñal, there was this Mr. Niñal who has a wife but at
the same time cohabits with a mistress. For one reason
or another Mr. ninal killed his own wife, I like to
believe that he did so to marry the paramour. 8months
from the death of the wife mr ninal married the
paramour the children of the first marriage filed to
nullify the second marriage with Badayog. It was
established that the second marriage was executed
without a marriage license because the parties claimed
that the have been cohabiting from each other for at
least 5years. By they’re own admission they have been
cohabiting with each other when Mr. Niñal was still
married with the first wife. The SC said that this
cohabitation is not exclusive and it cannot be free from
any legal impediment because obviously they have been
cohabiting while Mr. Niñal was still married to the first
wife.
 What happens if the parties falsified an affidavit of
cohabitation? They make it appear that they’re living for
at least 5years but the truth is they’re not living together
for at least 5years.
 In the case Dayag vs Dayag. The SC was categorical
that the falsified affidavit of cohabitation is no
affidavit at all. Therefore, the marriage is void.
 In a case, they’re married at a very young age and it
was falsified. It was the mother of the bride who
facilitated everything. The girl got pregnant so the
family was so desperate to have the marriage. They
short-circuited the marriage under Article 34. But the
marriage didn’t work, and so the husband came to
me he has now another family unofficially, and he
asked for my service. Pursuant to Article 34 it was a
void marriage. What I did was I blamed the mother
in law. So, the petitioner the husband stated that it
was entire mother who facilitated the marriage.
Prove that it’s a falsified affidavit of cohabitation.
Just blame it to some else or someone dead. In this
case blame it to someone outside the jurisdiction of
the Philippines.
o Valid Marriage Ceremony – takes place with the appearance
of the parties before a solemnizing officer under their
personal declaration that they take each other as husband and
wife in the presence of at least two witnesses of legal age.
Take note: Under Article 6 of the Family Code there’s no
prescribed form or religious rite for solemnization of
marriage. Crucial Part: The personal declaration shall be
contained in a written form or in a marriage certificate signed
by the parties and witnesses and attested by solemnizing
officer. What if one failed to signed the marriage contract?
 In the case of Deloria vs Felix in 1958, the SC said
what is required is the personal declaration of the
parties before the solemnizing officer, while the law
requires that the personal declaration shall be
contained in a marriage certificate, this requirement
is not for the purpose of validity but only for
evidentiary purposes.
 Failure to sign the marriage contract does not make
the marriage void as long as there is the personal
declaration.
 The same goes when the marriage
contract got lost, it does not render the
marriage void.
 If the witnesses are not of age, that’s only an
irregularity.
 If the parties did not make a personal declaration that’s
absence of marriage ceremony. The same when there’s
an absence of the solemnizing officer, that’s absence of
marriage ceremony.
 Take note: that the law required venue for solemnization
of marriage as part of the wedding ceremony. You
cannot just solemnize your marriage anywhere.
o Justice- it must be solemnized publicly i.e
Open court, judge chambers
o Priest, imam, rabbi, minister - Church, temple,
chapel
o Exception to venue: A marriage will be
solemnized elsewhere other than the chamber
of the judge, church, temple, chapel it could be
solemnized in a house of any place under any
of the ff. exemptions:
 1. In marriage under articulo mortis
 2. In marriage where the parties request
in writing the solemnizing officer to
have their marriage solemnized
elsewhere.
 Take note: Violations on the rule venue
of the solemnization of marriage is just a
mere irregularity.
Take note violation on the rule on venue on the solemnization of
marriage is only a mere irregularity. So the judge can take his chances
even without the request can solemnize the marriage elsewhere other
than his chambers or court
The essence of marriage ceremony is really the making of personal
declaration that they take each other as husband and wife in the
8
presence of a solemnizing officer. The absence of a written marriage
contract does not negate the validity of the marriage but if what is
lacking is the personal declaration there is no valid marriage ceremony
because the personal declaration is the marriage ceremony. Same goes
with the absence of a solemnizing officer in case of people v morigo
the parties where only made to sign the marriage contract but there was
no solemnizing officer SC said there was no marriage ceremony so its
only the personal declaration in the presence of a solemnizing officer.
Art. 26 Conflicts of law rule on Marriage
Essentially art 26 said marriages solemnize outside and valid there as
such in accordance on the law of the country where it was solemnize
shall be valid in the Philippines except marriages declared void under
art 35 (1)(4)(5)(6) and 36 psychological incapacity 37 incestuous
marriages 38 marriage void by reason of public policy.
There 5 kinds of marriages contemplated under art. 26. Depending on
which kind art. 26 operates differently.
1st situation: 2 filipinos the marriage was solemnize abroad, they go to
hongkong solemnize their marriage there art 26 says if valid in
hongkong in accordance with the law in hongkong then it will be also
recognize here in the Philippines except if that marriage fall under art.
35 1,4,5,6 art 36 37 38.
So marriage by proxy is valid in hongkong where the ones who appear
before the solemnizing officers were not the parties themselves, special
power of attorney, stand someone on your behalf. Marriage in proxy
are allowed in some jurisdiction is that marriage valid in the
Philippines? Does it fall under any of the exceptions stated under art
26? Does it fall under 35 (1,4,5,6) 36 37 38? NO. Proxy is not one of
those exceptions. Just limit yourself with the exception. Like same sex
marriage its not also one of the exception.
2nd situation: Foreigners in the Philippines whats the rule on foreigners
marriage solemnize in the Philippines. The rule is Philippine law
applies if valid in the Philippines (….) legal capacity of the contracting
parties as to be determine by their national law pursuant to art 21. So if
they are both 15 years old but in their country theyre of legal age the
marriage is valid here. That’s the effect of art 21.
3rd situation: Mixed marriage between a Filipino and a foreigner the
marriage the marriage solemnize in the Philippines, Whats the rule the
validity of the marriage is to be determine by the phil law but the legal
capacity of the alien spouse is determine by his / her own national law
pursuant to art. 21
4th situation: foreigners the marriage solemnize abroad the rule is if
valid there in their country where it was solemnize will also be valid
here in the phil so what happens if the marriage there was bigamous?
But their law allows bigamous marriage? Will that be a valid marriage
in the phil? But the question is, is art 35 (4) applicable to foreigners? Of
course if valid there it will also be valid here in the phil All these
exceptions pertains to status conditions legal capacity and under art 15
these are all govern by national law theory. The exceptions there apply
only to Filipinos.
5th situation: mixed marriage. Between foreigners and Filipino
solemnize abroad. A german and a Filipino solemnize in germany since
the german is govern by his national law then he is not govern by the
exception the Filipino is govern by the exception. The marriage was
solemnize in germany the german national is 15 years old in his
country 15 is legally capacitated to enter into a contract the Filipino is
18 under art 26 it appears that the marriage was valid because in the 1 st
exception of art 26 art 35 par 1 where either of the party is below 18
does not cover german but the Filipino is 18 but what if theyre both 15
under german law is valid now the Filipino is now under the exception
because he is under 18 it falls under 35 par 1 . valid in so far as the
foreigner void in so far as the Filipino is concern. This is where the
problem start we have a hybrid kind of marriage How do we solve this?
Marriage is a single indivisible it cannot be said that the marriage is
partly valid partly void it should only be valid or void so how do we
treat it? Some authors including paras suggest that consistent with our
policy to uphold validity of marriage we encourage marriage the
validity of marriage our presumption on this the marriage is valid this
author take the view that in a situation like this the marriage (inaudible
words) the marriage is valid. That’s really a problem. Consistent with
the policy to uphold the validity of marriage so in case of a hybrid
marriage consider it valid. The reason here is if the rule is otherwise
rights of the innocent parties is prejudice specially the children if we
treat this kind of marriage as void then the children (inaudible words)
is illegitimate. So the interpretation that the exception in art. 26 apply
only to Filipino citizen is consistent with nationality theory however
another view which holds a different position is if the marriage abroad
is against our policy. Can you imagine bigamous marriage between
german nationals just because they’re not covered by the exception in
26 are considered valid in the Philippines. We have problems on policy
issue considerations, so there is this other view which takes the position
that our public policy prevails art 17 par 3 because if we take the
position that the exception in 26 do not apply to foreigners there is a
very dangerous possibility will occur that even the most immoral kind
of marriage is may be considered valid abroad will have to considered
in the Philippines the foremost of which is same sex marriage as I said
same sex marriage is valid there many countries adopted it or recognize
same sex marriage it doesn’t fall under the exception and if we apply
the principle that the exception cover only Filipinos then same marriage
of the foreigners will have to be recognized that will (inaudible words)
our policy its against marriage if pursuant to art 17 par 3 so 26 opens a
lot of unending debate we’ll just hope that jurisprudence will be enrich
and all this doubt should be cleared out. But as it is now there are more
questions than others?
Art. 26, 2nd Par.
“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 remarry, the Filipino spouse shall likewise have a capacity
to remarry under Philippine law.”
When the Family Code was enacted the 2nd Par. of Art. 26 was not part
of the original text. But this was inserted pursuant to Executive Order
9
No. 227, issued by then Pres. Corazon Aquino in the exercise of her
power under the Freedom Constitution. This was added as a last
minute addition to Art. 26. The obvious purpose of this Article is to
address the absurd situation resulting from the decision of the previous
cases of Vandorn v Romillo and Pilapil v. Somera. These two cases
involve a situation where a Filipina is married to a foreigner and
subsequently the foreigner obtained a divorce decree abroad. And the
foreign/alien spouses filed actions before the Philippine courts against
the Filipina spouse.
In Vandorn v Romillo, the alien husband thereby filed an action to be
given the right to manage conjugal business, despite the fact that a
divorce decree was already obtained. He argued that since divorce is
not recognized in the Philippines, then he should be considered as still
the husband of the Filipino spouse and therefore, as the husband he has
the right to manage the family or conjugal business.
In the case of Pilapil v Judge Somera, the German husband there after
obtaining the divorce decree in Germany, initiated a criminal complaint
for adultery against the Filipina wife, because he discovered that even
before their cohabitation as husband and wife, the Filipina wife was
allegedly unfaithful to him.
In both instances, the alien spouses claimed that their divorce decrees
obtained abroad is not recognize in the Philippines by reason of public
policy because Philippine law does not recognize divorce. But both in
this cases, the Supreme Court was uniform in ruling that, as so far as
alien spouses are concerned, the divorce decrees are valid and should
be recognized in the Philippines and therefore the alien spouses who
obtained the divorce decrees abroad, should no longer be considered as
legally married to their Filipina spouses.
But take note that in these two rulings, the SC only made mention the
effect of the divorce decree in so far as alien spouses are concern.
Obviously, in so far as the Filipina spouse is concern, the SC refused to
rule on the validity of the divorce, as so far as the Filipino spouse is
concern, because of policy consideration. Therefore if you look at the
decisions in these two cases it is obvious that the SC only recognize the
validity of the divorce in so far as the foreign spouses are concern, but
never on the Filipina spouse are concern. So this resulted in an absurd
situation wherein a Filipina spouse remains to be married to an alien
spouse who is no longer her spouse. What a very ridiculous, unjust and
unfair situation. Because if the divorce decree is recognized in so far as
the alien spouse is concern, then obviously the alien spouse can
remarry but the Filipino or Filipina spouse cannot. So it is really a
situation of injustice and that is what Executive Order 227 sought to
correct- to level the playing field between the alien spouse and the
filipino spouse in case a divorce decree is obtained abroad. So again the
purposes are:
 to correct the absurd situation
 to rectify the unfairness and the unjust situation
created by these two rulings.
So at is now, pursuant the 2nd Paragraph of Art. 26, if the divorce
decree is obtained by an alien spouse (Take note: the ALIEN SPOUSE
NOT THE FILIPINO SPOUSE), as an exception to the policy against
divorce, our law by this express provision recognizes the effect of that
divorce decree obtained abroad. The effect there is that, it should be
valid and therefore, the effects of the divorce should be treated for all
intent and purposes as if the divorce decree is valid in the Philippines.
Therefore, if the divorce decree is obtained by an alien spouse, the
Filipino spouse is now capacitated to remarry. So that is really the
historical background of this provision.
Take note that the original situation of the 2 nd Par. of Art. 26 is it
contemplates a marriage between a Filipino and an Alien-so it is a
mixed marriage. It used to not apply in a situation where the marriage
is between Filipinos. But pursuant to the ruling in the case of Republic
of the Philippines v Obrecido, the SC extended the coverage of 2nd
par. of Art. 26. In this case the marriage is between two Filipinos, it is
not a mixed marriage from the start, it is a marriage between two
Filipinos but subsequently, the Filipina wife went US and allegedly
obtained an American citizenship by the process of naturalization. And
while being already an American citizen allegedly, the Filipina spouse
now obtained a divorce decree in US.
This was not originally contemplated by Art 26. But it was argued in
Obrecido that, it is the same situation. It is unjust, absurd and unfair
situation if the 2nd Par of Art 26 will not apply to Obrecido. In an
unprecedented ruling, in this case, the requirement of citizenship should
not be reckoned as of the time of the marriage but as of the time the
divorce decree is obtained. So now, it is not required that the marriage
from the start should be between an alien or a Filipino, because it is
possible that the marriage is solemnized between two Filipinos. What is
important or purposes of Art. 26 is that at the time the divorce decree is
obtained abroad, one must be an alien and the other a Filipino. The
reckoning point is the time the divorce decree is obtained.
The doctrinal pronouncement that is important in this case is the
express declaration that Art26 does not only cover the situation where a
marriage is solemnized between a foreigner and a Filipino but it
extends to a situation where in a marriage is solemnized between two
Filipinos but one of them subsequently become an alien and that alien
spouse obtained divorce decree abroad.
Take note that once the divorce decree is obtained by the alien spouse
abroad, and while Art26 2nd Par. states that it capacitates the Filipino
spouse to remarry, the capacity of the filipino spouse to remarry does
not come as an automatic effect. So the Filipino spouse cannot
immediately apply for marriage license and contract a subsequent
marriage. Because the divorce decree obtained abroad can only be
given in the Philippines if it is judicially recognized in the Philippines.
Therefore before the Filipino spouse wishes to remarry, he needs to go
to court and obtain an express judicial declaration from the court, that
as a result of the divorce decree obtained by the spouse abroad, the
filipino spouse can now remarry.
Without the court order, declaring the Filipino spouse can remarry by
virtue of the divorce decree then no marriage license can be issued to
the same. The LGC will refuse because it will require the order of the
court granting him the capacity to remarry.
So the question is: WHAT IS THE APPROPRIATE REMEDY IF THE
FILIPINO SPOUSE WISHES TO REMARRY?
10
 Pursuant to the Obrecido ruling is to file an action for
DECLARATORY RELIEF under RULE 63 of the RULES
OF COURT precisely for obtaining an order declaring the
filipino spouse has now possessed a legal capacity to remarry
by virtue of divorce decree.
Take note that in petition for declaratory relief there are 3 THINGS
THAT THE PETITIONER SHOULD PROVE for the satisfaction of
the court:
1. The existence and the authenticity of the divorce decree.
How do you prove the existence and the authenticity of the
divorce decree?
–Under the Rules on Evidence, Rule 132 Section 24 & 25 of
the Rules of Court (remember this because without this
provision, 2nd par of Art 26 is nothing) there are two ways:
 In Rule 132 Section 24- since a divorce
decree is an act of a judicial authority of a
foreign government, it can be proved by:
Official Publication of the Divorce Decree or by
presenting a Copy of the Divorce Decree. So for
the purposes of presenting a divorce decree in the
Philippines the petitioner should submit a copy of
divorce decree which is certified or attested by the
custodian to be a faithful and correct copy of the
original in the position of the legal custodian. This
is commonly known as “certified true copy”.
Since the document is kept outside the Philippine
we really do not know if the copy is a genuine
authentic document that is why you need to comply
the requirement of authentication. Certification and
Authentication are two different things. There are
documents particularly kept in the Philippines that
if you cannot submit the original you can just
submit a certified true copy. But in the case
documents kept abroad and you only present a
copy; the requirement is IT MUST BE CERTIFIED
AS A CORRECT COPY AND MUST ALSO
CONTAIN AN ATTESTATION FOR PURPOSES
OF AUTHENTICATION.
How do you authenticate a foreign document?-
-The situation here is a copy is certified by a legal
custodian as a correct copy of the original. What does and
attestation contain for the purposes of authentication? The
authentication will state that the officer who attested to the
copy as a faithful and correct reproduction of the original is
really the custodian of the original. So there are two
documents:
-The certification issued by the custodian to the
effect that the copy is the faithful and correct copy of the
original
-The attestation issued by the Consular Official of
the Philippines stationed in the country where the documents
is kept, stating to the effect that the officer who certify to the
copy is indeed the legal custodian to the original—that is the
process of authentication.
Take note that the one who certifies as to the correctness of
the copy is the LEGAL CUSTODIAN and the one who
authenticates is a PHILIPPINE CONSULAR OFFICIAL
(commonly called “consularization”-you have to go to the
Consular Office of the Republic of the Phil. Stationed in that
foreign country and you have the document consularized and
that can easily be noticed because a consularized document
contained a red ribbon.)
That’s the first thing that you need to prove in the petition for
declaratory relief, what’s the second?
It is not enough to prove the existence of the divorce decree and
authenticity of the copy of the divorce decree, but it is equally
important to prove that the divorce decree was issued in
conformity to the laws that allow the divorce decree. The petitioner
needs also to prove that the divorce decree was validly obtained abroad.
How can the petitioner prove that the divorce decree was validly
obtained abroad? It goes with the saying that the petitioner must
prove the foreign law that allows the divorce decree. So if the
divorce decree was obtained in accordance with the laws of the US then
the petitioner must also prove the US laws on divorce in order that the
court will be able to determine if that divorce decree was able to obtain
in accordance with the laws of the US. So you need to prove the foreign
law because our courts do not take judicial notice of foreign laws,
foreign laws must be proved as a fact. Now how do you prove a foreign
law because the law now pertains to the foreign country and any
written law is necessarily kept in that country. HOW?
2. You prove the foreign law in the same manner you prove the
divorce decree. So you either present its official publication of that
foreign law which is difficult to achieve orpresent a certified copy of a
foreign law duly authenticated by the Philippine consular office.
So if you happen to have a client who wishes to avail of the benefit of
Art. 26 2nd paragraph, it is necessary that your client would be able to
know somebody abroad to furnish you with the copy of the foreign law
involve otherwise it would be very difficult for you to prove the foreign
law without someone in the country where the divorce decree was
obtained. You need to coordinate with someone, example if that
divorce decree was obtained in the US, you need someone in the US to
coordinate with you in obtaining a copy of the laws or divorce law in
the US, and that is easier said than done. In most cases, Filipino clients
know no one in the place where the divorce decree was obtained
because it is usually obtained in the country of the alien spouse. So if
the alien spouse is a citizen of Zimbabwe, your Filipino client would be
too lucky if he knows somebody in Zimbabwe to help him obtain the
necessary copies of these documents. In my experience, that is really
difficult to prove the foreign law and that is the hard reality,
theoretically, the remedy, the procedure, it is there for the picking but
in reality it is really difficult to obtain copies of foreign laws. Good if
your Filipino client and the alien spouse are still in talking terms or
11
friendly terms but in most cases, relationships are strained and you
cannot expect assistance and coordination with the foreign spouse so
your client will be left alone and no one will help her/him. So despite
the provision of 2nd paragraph of Art. 26 in most cases Filipino spouses
could not remarry because of that problem – how to prove the foreign
law.
3. Third fact that the petitioner needs to prove in the petition for
declaratory relief.The petition must be able to prove that by virtue of
that divorce decree, the alien spouse is already capacitated to remarry.
Take note: not all divorce decrees will result in art. 26 2 ndparagraph,
only divorce decrees which capacitates the alien spouse which result in
Art. 26 (2). There is this kind of divorce which does not result in the
spouse being capacitated to remarry and that is what called as relative
divorce. Relative divorce is similar to our legal separation, so it may be
called divorce but it does result in the spouses being capacitated to
remarry because it is only a relative divorce. If that’s the kind of
divorce obtained by the alien spouse abroad, it will not call into
operation 2nd paragraph of article 26. So how do you determine if the
divorce decree obtained abroad is the absolute divorce decree which
capacitates the spouse to remarry? Again, you need to present the
foreign law.The foreign law pursuant to its divorce decree was
issued, so the divorce decree and the foreign law allowing it should
come hand in hand for the Filipino spouse to avail of the benefits of
Art. 26 (2).
So remember these three important facts that you need to prove:
1. The existence and authenticity of the divorce decree
2. The foreign law allowing it to determine if the divorce decree
was issues in accordance with that foreign law
3. The fact that under that foreign allowing the divorce decree,
the alien spouse is capacitated to remarry
These three facts must be duly established by the required evidence
pursuant to Rule 12 Section 24 and 25.
Question: what if masearchraang foreign law or divorce decree sa
internet?
Answer: Who would certify that it is a true copy of the original? That is
really a problem, you can always retrieve it from the internet but who is
going to certify that the copy you obtained from the internet is a true
copy of the original? It must be the custodian. So if it is a divorce
decree, the custodian there is the clerk of court. In the Philippines, the
custodian of the records is the clerk of court. I assume that is also true
in other countries that the clerk of court issue the divorce decree. The
foreign law is much more difficult, who would certify that such foreign
law is a correct copy of the original file. The law in the Philippines, the
custodian of our laws is (I think we have this office of national library
or congress) either the appropriate custodian of congress who should
certify it or maybe the head of the national library. I suppose, every law
is also forwarded to the national library. So it should be the official
legal custodian.
Who would process the consularization requirement? You need to go to
the consular office of the Philippines stationed abroad, personally. So,
that is really difficult. That is why in reality it is more difficult to avail
of art.26 (2).
So what other lawyers would do is this: (I’m not telling you to do this,
this is just to address the problem of your clients) At the end of the day
it is the Filipino spouse who is more prejudice. We just keep silent
about the divorce because in some cases our client will go to us and say
“atty. I am married to a German national but my German husband has
obtained divorce decree in Germany and I want to remarry in the
Philippines because I also want to be happy.” We know about the
difficult or impossibility of availing the benefits of Art.26 (2). So we
just keep silent about the divorce, we just file a petition for
declaration of nullity of marriage in the Philippines under Article
36. So the divorce decree will not be in any use at all. It is easier to
pursue petition for nullity of marriage under art. 36 than art.26 (2)
because of that predicament or limitation.
Now this is important because in the case Bayot vs. Bayot:
An alien spouse there married a Filipino and that alien spouse obtained
a divorce decree abroad. She comes to the Philippines and filed a
petition for declaration of nullity of marriage with a Filipino spouse.
But the Filipino filed a motion to dismiss on the ground that petitioner
has no cause of action to file the petition for nullity of marriage because
that petitioner who is an American citizen had already obtained a
divorce decree in Dominican Republic. And so the Supreme Court said
being an American citizen, her own laws recognize divorce and so the
divorce decree that she obtained in Dominican Republic is valid and
binding upon her and therefore, she is no longer married to her Filipino
spouse so what is there to nullify?
So you cannot file a petition for nullity of marriage when a divorce
decree was already obtained. That is also the problem, again for
practical reasons, just keep silent about the divorce and file petition
for nullity of marriage as if no decree of divorce was obtained by
the alien spouse. That’s the only way you can go around with the
limitations in art.26 (2)
Let us look at the other side of the problem. What is the rule if it is
the alien spouse who obtained the divorce decree wishes to remarry
in the Philippines? Because it is also possible that the alien spouse
who married a Filipino then subsequently obtained a divorce decree
abroad returns to the Philippines then finds another Filipino love and
again he wishes to remarry in the PH. So what is the procedure? What
should that alien spouse do in order that he or she can also remarry in
the Philippines as a result of the divorce decree that he or she obtained
abroad. Can he/she file a petition for declaratory relief in the same
manner as a Filipino? In the case of Gilbert Corpuz vs. Sto. Tomas,
the SC gave a definite ruling that an alien spouse cannot avail of
the remedy under art. 26 (2) because that remedy is only intended
for the benefit of the Filipino spouse. But that alien spouse is not
without remedy because under our rules, there are certain remedies that
the alien spouse may pursue to achieve the same purpose. So, what is
the proper remedy the alien spouse should pursue (who wishes to
remarry in the Philippines after obtaining divorce decree abroad)?
12
There are two cases that answer this question. First is the case of
Corpuz vs. Sto Tomas:
Corpuz vs. Sto. Tomas
Corpuz used to be a Filipino and married to a Filipino. But because of
the demands of his work, after the wedding, he left for Canada. And
while in Canada, he obtained a Canadian citizenship by naturalization.
After sometime, he thought of returning to the Philippines to visit his
Filipina wife and surprise his Filipina wife (he did not inform his wife
that he was coming to the Philippines). And indeed, someone was
surprised but it was not the wife, it was HIM. He was so shocked to
learn that his Filipina wife was already living with another man. So
with his ego bruised, deeper than the flesh, he returned to Canada and
obtained a divorce decree against the Filipina wife. After sometime, he
returned to the Philippines and for the second time around, he fell in
love with a Filipina. Corpuz wishes now to remarry.
Gerbert initially submitted a copy of the divorce decree he obtained
from Canada to the civil registrar of pasig city because his marriage
with his first wife was solemnized in Pasig city, so their records of
marriage certificate was registered in Pasig city local civil registrar. So
he went to the Pasig city local civil registrar to have their copy of the
divorce decree annotated by their marriage certificate. But he was
advised by the officer of the civil registrar that it was not enough for
him to annotate the copy of this divorce decree but he needs to go to
court for recognition of the divorce decree. Because if someone is
already married in the Philippines, the marriage contract will be kept by
local civil registrar where the marriage took place as well as it shall be
kept by local civil registrar general, we call this NSO (all the marriage
records there are kept. So once you apply for marriage license and you
were already married, you are required to submit the so-called
CENOMAR (Certificate of No Marriage which is one of the
requirements for obtaining a marriage license).
Now, Gerbert was married to his first Filipino wife and subsequently
obtained a divorce decree from Canada. The divorce decree will have
to be annotated in the certificate of no marriage to show that the
marriage between them has already been resolved. But under existing
rule, any divorce decree obtained abroad will not be recognized in the
PH unless recognized by the court in the PH. So it has to be judicially
recognized, so the annotation of the divorce decree is not enough. So
upon the advice of the local civil registrar of Pasig city, Gerbert filed a
petition for recognition of the foreign divorce decree.
One of the issues raised there was WON: Gerbert can avail of the
benefit of art 26 (2).
The SC said no way because Gerbert is an alien. Art. 26 (2) applies
orcan only be availed of the Filipino spouse. BUT it was not yet the end
for Gerbert because the SC said while Gerbert may not invoke the 2 nd
paragraph of art. 26, it doesn’t necessarily mean that Gerbert has no
remedy, the remedy is to follow rule 108 of the Rules of Court.
“To file a petition for judicial recognition of a foreign divorce decree
purposely to obtain an order of the RTC recognizing the foreign
divorce decree is not enough. Once an order is issued by the RTC
recognizing the foreign divorce decree, that order will be annotated on
the certificate of marriage. BUT the order of the court recognizing a
foreign divorce decree and any judgment declared rendered by a
foreign court is not enough to order the local civil registrar concerned
to annotate the divorce decree on their marriage certificate because the
annotation of the divorce decree on the marriage certificate constitutes
a change or correction in the records available in the local civil registrar
because precisely that will be the effect when you annotate the divorce
decree on marriage certificate (the party there is essentially trying to
correct his/her records available at the local civil registrar.”
If a foreigner wishes to remarry in the Philippines, he can pursue
either of the remedies.
1. He may file a petition for judicial recognition of a foreign
divorce decree and once the court recognizes that foreign
divorce decree. The alien spouse shall file another petition
under Rule 108 to effect the change of correction. The change
of correction will be based on the order of the court
recognizing the foreign divorce decree. So there will be two
petitions. First is a plain petition and second is petition
taking effect of that approved first petition (judicial
recognition)
2. To simplify matters and to avoid cost (because there will be
two cases in the first remedy but it would be more favorable
to lawyers to resort to the first remedy), file a petition for
change of entry under Rule 108 and in that same
proceedings ask the court for an order recognizing the
divorce decree and as a result of that recognition, you ask
the court to order the local civil registrar concerned to
effect the corresponding change. You achieve two purposes
in one proceeding, hitting two birds with one stone.
That’s the procedure that you should do in case you are a lawyer for an
alien client.
Again, in that petition for change or correction of entries, the same
matters that you should prove:
1. You should prove the existence and authenticity of the
divorce decree that you obtained abroad and by the same
means or mode required under Rule 132 Sections 24 and 25
of the Rules of Court
2. Prove the national law of the alien spouse
Now, this is an area which the SC needs to clarify
and I want you to take note of this.
In Obrecido and other related cases, earlier than
Obrecido like Recio v Recio, the SC categorically
ruled that “the divorce decree obtained by the alien
spouse abroad should be recognized as valid in the
Philippines, provided, the divorce decree in
accordance with the alien’s national law (ruling
in Recio, and other cases)
But in Obrecido, TAKE NOTE, the SC worded the
ruling differently; it said, “you need to prove the
conformity of the divorce decree to the laws
allowing it” so it should the laws of the country
where the divorce decree was obtained.
Good if the court that issued the divorce decree is a
court of the country where the alien spouse is a
national (like if the alien spouse who obtains the
divorce decree is an American citizen, the divorce
13
 decree was issued by an American court, there will
be no problem with that)
Problem will surely arise if the divorce decree was
obtained in one country by the alien spouse who is
a national of another foreign country (like a
German national obtains a divorce decree in
Canada)
If you look at the Obrecido it would appear that the
law that the petitioner should prove is the law of
Canada, because it is the law of Canada that allows
the divorce decree
But if you look at Recio v Recio, it would appear
that the law that needs to be proved is the law of
the alien spouse
As a matter of fact in Bayot v Bayot which is
subsequent to Obrecido, the SC even made it more
complicated. The SC said there “the divorce decree
obtained by the American spouse was valid bec as
an American citizen he is bound by the divorce bec
U.S. laws recognize divorce; but the divorce
decree was issued by the Dominican Republic
court; the SC in Bayot v Bayot never mentioned
about the laws of the Dominican Republic
So Bayot, is more consistent with Recio v Recio,
where the SC said “the divorce decree should be
recognized in the Philippines as valid, if it is
valid,in accordance with the national law of the
alien spouse”.
This is really a problematic area, when the divorce
decree is issued by a court of a country other than
the country of the petitioner’s alien souse.
So reference there is Recio, and Bayot
Obrecido, on the other hand, says “you demonstrate
a conformity to the laws allowing it”
Ideal situation is: the divorce decree is obtained by
the alien spouse from the court of his own country
So it’s the same thing: you need to prove the
foreign law involved.
You distinguish this from the ruling in the case of
Fujiki v Marinay which enunciates an entirely diff
ruling
Facts: Marinay is a Filipina who married a
Japanese, Fujiki. The marriage did not work well,
they got separated, Fujiki returned to Japan. After
a while, Marinay married another Japanese,
Maikara. The latter brought the former to Japan
but it was alleged that Marinay suffered abuse in
the hands of Makaira. By a sheer stroke of luck, it
was in this deepest and lowest moments of her life
that Marinay reunited with Fujiki in Japan; they
rekindled their previous relationship. And Fujiki
eventually helped Marinay to obtain a nullity of
her marriage with Makaira in Japan on the ground
of bigamy. So Marinay obtained a decision issued
by the Japanese court, nullifying her marriage with
Makaira on the ground of bigamy. Subsequently,
Fujiki returned to the Philippines and filed an
action to recognize the decision of the Japanese
court, nullifying the marriage bet Marinay and
Makaira. This was dismissed by the RTC on the
ground that Fujiki is not a proper party in interest
who can initiate the action bec under the rules, the
Administrative Matter No. 02-11-10-SC, only the
husband or the wife may file an action for the
declaration of nullity of marriage. So the RTC
ruled that only MAKAIRA or MARINAY can file
the action, believing that the action is for
declaration of nullity of marriage. And so the case
went all the way up to the SC, on critical ISSUES:
i. 1.) whether Fujiki can be considered as a
proper party in interest who can file the
action
ii. WON Administrative Matter No. 02-11-
10-SC RULE ON DECLARATION OF
ABSOLUTE NULLITY OF VOID
MARRIAGESAND ANNULMENT
OFVOIDABLE MARRIAGES apply in
the case
On the 1st issue the SC said: Fujiki is a proper party in
interest to file the action. For one, even assuming that
the provisions of AM No. 02-11-10-SC are to be
applied. Which says that only the husband or the wife
may file a petition for nullity of marriage, when the rule
speaks of ‘only the husband or the wife’ actually refers
to the FIRST HUSBAND OR FIRST WIFE, not the
second; because the 2nd marriage is bigamous, it is
VOID, and so technically the parties there cannot be
considered as husband or wife.
So when the rule says ‘only the husband or the wife’ it
refers to the parties to the first marriage and therefore,
Fujiki is a husband, he can file. That is one justification
advanced by the SC.
2nd, in a petition for nullity of marriage based on
bigamy, in most cases the parties or the spouses on the
second marriage are not expected to nullify the
marriage bec they are supposed to bebefit the second
marriage. So in reality if there is someone who should
complain, it is not the parties in the subsequent
bigamous marriage but the parties in the previous bec
it’s him or her who is prejudiced by the subsequent
bigamous marriage. So if you talk about an
AGRRIEVED SPOUSE, IT SHOULD BE THE
AGGRIVED SPOUSE IN THE FIRST MARRIAGE.
In that sense, Fujiki qualifies as a ‘spouse’.
On the second issue: these rules do not apply in this
particular proceeding. What Fujiki was trying to do is
not to nullify the marriage bet Marinay and Makaira.
But he was just trying to have the judgement rendered
by the Japanese court nullifying the marriage bet
Marinay and Makaira, recognized in the Philippines. So
it’s not an action to declare the marriage a nullity but
just and action for recognition of the foreign judgement
that nullifies the marriage bet Marinay and Makaira. So
it’s a different cause of action and therefore governed
by different rules.
Now in this type of action, recognition of a foreign
judgement, all that the petitioner has to do is just to,
prove the existence and authenticity of the foreign
judgement and nothing more
Take not that the SC never required the petitioner to
prove the foreign law to determine if that judgement
rendered by the foreign court was validly obtained in
accordance with the foreign law, in Marinay the SC said
that all the petitioner has to do is to prove the existence
and authenticity of the foreign judgement, and that
would be all. If there is someone who opposes to the
recognition of that foreign judgement, it is for that
opposition to prove that it is a void judgment bec of
certain grounds provided under sec 48 Rule 39 of the
14
 Rules of Court; whether there is lack of jurisdiction,
fraud, collusion, mistake of fact or mistake of (law?).
You might ask, as I do, WHAT’S NOW THE
DIFFERENCE BETWEEN FUJIKI AND CORPUZ?
Corpus involves a situation wherein an alien spouse
obtains a divorce decree abroad- accdg to the SC:
remedy is to file petition for correction or change of
entries under rule 108 and you need to prove the
existence and authenticity of the divorce decree and the
national law of the alien spouse to determine if that
divorce decree was validly obtained but
In Fujiki the SC said what is only needed to be done is
to prove the existence and authenticity of that foreign
judgement. Again in Fujiki it’s an alien spouse who
wanted a foreign judgement recognized in the
Philippines and SC said the remedy is PETITION FOR
CORRECTION FOR CHANGE OF ENTRIES IN THE
LOCAL CIVIL REGISTRAR under rule 108, the same
procedure, the same remedy
The difference lies in the MATTER THAT NEEDS TO
BE PROVED in these proceedings.
TAKE NOTE that a divorce decree is a foreign
judgement, just like in Fujiki, a judgement declaring a
marriage void by reason of bigamy; it’s not a divorce
decree. It’s a foreign judgement that dissolves a
marriage but is not divorce, it is a declaration of nullity
of marriage based on bigamy. It’s different from
divorce
So it would appear that if the foreign judgement that the
party seeks to be recognized in the Philippines, is a
divorce decree, it is not enough to prove the existence
and authenticity of the same, rather, it is equally impt
to prove the foreign law, specifically the NATIONAL
LAW of the alien spouse.
But if it is a foreign judgment other than a divorce decree the
requirement is simpler that is only the existence and genuineness of that
foreign judgment.
All the cases assigned regarding foreign divorce, the requirement that
the foreign law must also be proved was consistently mentioned by
SC.
Why foreign law must be proved?
- Maybe because divorce decree is against public policy that
the requirement is stringent.
- We recognized foreign divorce only if it is validly obtained
in accordance with the national law of the foreign spouse
in accordance with Article 15.
But if it is a foreign judgment not involving divorce, proving a
foreign law may not be necessary. (Since a foreign judgment is
presumed to be valid, it is for the party who alleges otherwise to prove)
Ex. If the adverse party alleges that the foreign judgment is void
because it is issued contrary to the law of the foreign country, it is that
party who should prove the foreign law and not the petitioner who
relies on the foreign judgment. (Explained in the case of Fujiki vs
Marinay)
Fujiki vs Marinay
SC noted that the judgment rendered by the Japanese court declaring
the marriage void on the bases of bigamy is consistent with our own
laws bec we also recognized nullity of marriage on the ground of
bigamy as precisely stated under Article 35 (4) of the Family Code.
There is no policy difference between Japan and the Philippines in so
far as that judgment of nullity of marriage based on bigamy rendered
by the Japanese court. Maybe that is the reason why that the required of
proving was not imposed. (The requirement of proving a foreign law is
not required to judgments other than divorce)
REVIEW THE CASES OF: CORPUZ, FUJIKI, BAYOT (VERY
IMPORTANT RULINGS)
A divorce decree for it to be recognized in the Philippines you just have
this annotated of the Civil Registrar concern. That rule was oddly true
in the past, it was the previous practice. Divorce decree – just
annotated. As a matter of fact, under;
- Article 13 of the Family Code if an applicant for marriage
license was previously married
The applicant needs to submit to LCR
o Death certificate if the marriage was dissolved by
the reason of death
If the previous marriage was dissolved by:
o Nullity of marriage
o Declaration of nullity
o Decree of annulment
o Divorce decree
= If the marriage was dissolved by divorce the only
requirement is to submit a copy of divorce to LCR.
There’s nothing in the Family Code that
requires the party who’s previously married and
wishes to remarry to go to court to have that
previous divorce decree recognized.
= This requirement of recognition is only
imposed by the Supreme Court in this
jurisprudence that we discussed.
= Mere submission to the LCR was ENOUGH
BEFORE, a mere annotation. This is was what
Gerbert Corpuz initially did in the case of Corpuz
vs Sto. Tomas.
= But over time it has been changed by
jurisprudence because as it is now court order is
required.
VOID MARRIAGES
What are the void marriages?
 Article 4 of Family Code – absence of essential or formal
requisites renders the marriage void.
 These marriages are those mentioned in Article 35
(specifics):
1. A marriage where one or both of the
contracting parties are below 18 years old –
lack of legal capacity.
2. Authority of the solemnizing officer except if
both or either of the parties believed in good
faith that the solemnizing officer has such
authority. Absence of a formal requisite.
3. A valid marriage license, if none there is
absence of formal requisite.
4. Bigamous or polygamous marriage, there is
absence of legal capacity. The capacity which
relates to the state of being unmarried. It is a
legal impediment being already married.
5. Mistake of the identity of the other. Absence
of consent (essential requisite)
15
 6. Marriage void pursuant to Article 53 of the
Family Code. A marriage entered into by a
party who is previously married and that
previous marriage was dissolved under Article
40 - failure to obtain judicial declaration of
nullity of previous marriage, that subsequent
marriage is void.
What is the rule if the marriage is void under Article 40?
Under Article 50, 51, 52 – if the marriage is rendered void by
reason of Article 40 or it is declared annulled by reason of Article 45.
The court declaring the marriage void must provide in that same
decision the liquidation, partition, distribution of the properties of the
parties and delivery of presumptive legitimes to the children. This
liquidation, partition and distribution must be contained in the decision
that declares the marriage void and these must be duly recorded in duly
appropriate registry of properties. If the properties of the parties
consisted of pieces of land then the decision declaring the marriage
void as well as the liquidation, partition and distribution must be
recorded in the Registry of Deeds where the affected properties are
located.
Without the liquidation, partition and distribution being
recorded in the appropriate registry of properties that subsequent
marriage is void under Article 53, the recording is necessary in order to
protect the interest of the children and the parties of the previous
marriage as well as in the subsequent marriage. THE RECORDING IS
REQUIRED so that any party dealing with the property will know that
these properties are already adjudicated to this party or to the other.
(Can qualify as absence of LEGAL CAPACITY since it relates to the
capacity of a party to contract a subsequent marriage by reason of legal
impediment)
ARTICLE 36
A kind of void marriage of a class of its own
- Not void because of either absence of essential or formal
requisites
- Most abused provision in the Family Code (HAHAHA.
SURE?)
Article 36 is what they call pseudo-divorce, a divorce labeled as
psychological incapacity but it’s not exactly the same as divorce.
The essential difference between divorce and psychological incapacity
is that;
 Divorce – can be obtain by mutual agreement (when the
parties have irreconcilable differences they can actually agree
to dissolve their marriage through divorce)
 Under Article 36 - can only be availed of if the party or
petitioner can really proved the existence of psychological
incapacity. It cannot be obtained by some mutual
understanding between the parties. An independent of the
consent of the parties. A matter of fact it is the policy in the
Philippines that collusion is a ground to dismiss petition of
nullity. Ground for nullity of marriage is provided for by law.
It does not depend on consent, agreement or stipulations of
the parties.
What is psychological incapacity?
Article 36 does not actually define psychological incapacity. It
was deliberately done by the framers of the family code not to define
psychological incapacity because of the purpose being to accommodate
all possible grounds for the dissolution of their marriage. To at least
approximate divorce. It is specific but general enough to cover
everything. It covers every ground so long as it complies with the 3
conditions.
Essentially, psychological incapacity is a personality disorder. It is
a kind of personality disorder so long as it incapacitates the spouse
from performing his/her marital obligations. So the operative fact of
psychological incapacity is the incapacity to comply with the marital
obligations and these may proceed from any personal disorder or defect
on the party guilty of psychological incapacity.
You can actually invoke of any defect on the character of the
party. Most common of these manifestations include maturity,
irresponsibility, failure or refusal to cohabit, insanity, homosexuality,
drug addiction, lesbianism, narcissistic personality disorder, dependent
personality disorder or any kind of personality disorders. So long as
this will result the incapacity to perform marital obligations.
Do not believe that homosexuality is only a ground for legal
separation or insanity is a ground for annulment of marriage. While
insanity is a ground for annulment for a voidable marriage, it does not
preclude from being invoked as a manifestation of psychological
incapacity. You can make use of insanity as a ground for psychological
incapacity.
How do you differentiate one from the other?
If you invoke insanity by itself as a ground, then you can only use it as
a ground for annulment under article 45. The fact that the spouse is
insane is a ground for annulment. But if you want avail insanity as a
ground for psychological incapacity, do not stop at proving the fact of
insanity but most importantly you must be able to prove that the insane
party cannot perform his/her marital obligations. The fact alone of
insanity, while it is not a ground for psychological incapacity, it is
always a ground for annulment.
In the same manner, homosexuality by itself is a ground for
legal separation. But you can make use of homosexuality as a ground
for psychological incapacity if you are able to prove that because of the
spouse’s homosexuality, he/she is incapacitated to perform marital
obligations. Always relate it to the inability to perform.
Like the case of chi ming choi(wa ko kabaw sa spelling sa iya
ngan bsta gamay sha tintin), failure to engage in sexual intercourse. The
Supreme Court said sex is one of the essential obligations in marriage.
It is the spouses way of participating in the mystery of creation. Failure
to comply with this obligation, according to the SC, as when the spouse
repeatedly and prolonged refusal to have sex with the other is a
manifestation of psychological incapacity.
When your spouse is inveterate or pathological liar, that a
manifestation of psychological incapacity.
Or when someone who cannot make his/her own decisions.
He/she is always dependent to others. Mama’s boy is considered
psychological incapacity. Decision making is an essential obligation of
marriage. (te vs ngo te)
When someone entertains sense of entitlement, false sense of
grandeur, someone who seeks attention from others but denies this
16
attention to others (self conceited), extreme jealousy these are
manifestations of psychological incapacity.
When someone engages in extreme jealousy, rooted on
paranoia is psychological incapacity.
Sir is telling a story about atong husband na super seloso then
simhotun ang toot sa iya wife para makabaw sha naa ba laen iya wife.
If baho, nay laen. If humot sad, naa poy laen so medyo boang si hubby
oy. Hahahha bsta oy it is unreasonable jealousy ergo,manifestation n
sha of psychological incapacity.
When the wife doesn’t care anything in the home and does
not do any household chores, always outside in yoga, zumba and
beauty parlor. The SC said that’s a psychological incapacity.
Take note that psychological incapacity refers to that
personality disorder can only be considered as psychological incapacity
if this results in the incapacity to perform marital obligations. If the
individual is capable to perform other obligations but not marital
obligations it is psychological incapacity. It is possible that a successful
lawyer can be considered that he/she has psychological incapacity
despite his/her success but unable to perform marital obligations.
My point is if you are lawyering for someone who wants to
declare his marriage dissolves under article 36, you need to demonize
the other. Put all the defects in the character of the other. And bec of
these defects he/she is unable to perform marital obligations.
Psychological incapacity is characterized by juridical
antecedence, gravity and incurability. Even if the spouse is unable to
perform marital obligations but the 3 conditions are not present the
marriage cannot be dissolved under article 36.
Juridical antecedence – the personality disorder must exist prior or at
the time of the solemnization of marriage although the manifestations
emerged after. Must be part of the psychological makeup of the
individual by tracing its history to his childhood. If it did not exist prior
or at the time of the solemnization of the marriage even if it results to
failure to perform marital obligation it is not psychological incapacity
under art 36.
How do you prove that the personality disorder is characterized by
juridical antecedence?
There is a need for the testimony of a psychologist. How this
psychological disorder form part of the psychological makeup of an
individual. Although the rule does not expressly state the need of a
psychologist, in reality you really have to present a psychologist in
order to prove juridical antecedence.
Gravity – only grave psychological defects. Because of its gravity or
seriousness the individual is incapacitated to comply. In other words,
the gravity of the personality disorder must have a correlation to the
incapacity to perform. If this personality disorder does not result to
incapacity to perform it means it is not serious. Therefore, cannot be a
ground under art 36.
Incurability – the incurability does not always mean that there is no
known cure; it is possible that there is a cure but it is beyond the means
of an individual.
If an individual is guilty of psychological incapacity, does this mean
he/she can no longer contract subsequent marriage?
Take note that psychological incapacity results the marriage for being
void but the reason of being void has nothing to do with the essential or
formal requisites of marriage. For one to contract marriage he only
needs to comply with the essential and formal requisites. There’s
nothing there that a person who is psychologically incapacitated is not
qualified to contract subsequent marriage.
Article 37 just an enumeration of the specific kind of marriages falling
under incestuous marriage as well as Article 38 by reason of public
policy. The kinds of marriages enumerated in these 2 articles are
exclusive, so any deviation from the enumeration should not fall under
any of these articles. So you better memorize, take it to heart the
specific kinds of marriages enumerated in Article 37 and 38.
Article 37 speaks of a blood relationship, so there is no such thing as
incestuous marriage by legal fiction. It’s always being blood relative.
Ascendants or descendants, no marriage shall take place between
regardless of distance (as high as above, as low as below). Collateral
blood relatives limited only to sisters or brother either full or half
blood. Again, a marriage between an adopting parent and the child of
the adopted child, if it is a blood relationship it would have been a
relationship between a grandfather and a grandchild, that does not
apply. It cannot be said that the relationship of the marriage is
incestuous because the relationship ever there is, is by legal fiction. But
in truth and in fact insofar as the adopting parent and the child of the
adopted child, there is really no relationship, they are considered
strangers to each other. That is why in Article 38, there is a mention
there of a void marriage between an adopting parent and the adopted
child. This limitation applies only to this particular kind marriage, so a
marriage between the adopting parent and the child of the adopted child
is not void it’s valid, because it’s not among those listed in article 38.
The only void marriage is, adopting parent and the adopted child.
Okay! Now, take note also that under Article 38, a marriage between
the surviving spouse of the adopting parent and the adopted child or the
marriage between the adopting parent and the surviving spouse of the
adopted child is void. But this applies only in case of death, death of
the adopting parent in which case there is a surviving spouse or death
of the adopted child in which case there is a surviving spouse. So that if
the marriage between the adopting parent and the spouse is dissolved
not by death but by legal proceedings or by court declaration like
nullity or divorce or annulment, this prohibition under Article 38 does
not apply. So the former spouse or previous spouse of the adopting
parent who is still alive may legally marry the adopted child, because
the spouse cannot be deemed to be surviving spouse because the
adopting parent it still alive. So take note of the variations, the same
holds true with respect to the former spouse of the adopted child. If the
adopted child’s marriage with his wife is dissolved by court action or
by court order, the former spouse of the adopted child may validly
marry the adopting parent. There is no prohibition because it’s not
among those listed in Article 38. Okay!
ART. 40
Let’s go to another kind of void marriage mention in Article 40, so we
have various types of void marriages, Articles 35, 36 (Psychological
Incapacity), 37, 38, let’s go to the 5th kind of void marriage Article 40.
Article 40 states that for purposes of re-marriage, a declaration of
nullity of a previous void marriage maybe invoked. What does this
mean? This means that, if a party intends to contract a subsequent
marriage or if a party already married and he thinks that his marriage is
void or any of the grounds prescribed under the law and he intends to
contract a subsequent marriage, the only way by which the subsequent
marriage can be valid is for him to obtain prior to the solemnization of
the subsequent marriage a court order declaring the previous void
17
marriage as void. The only kind of evidence may be allowed for
purposes of remarriage is a court or final judgment declaring the
previous void marriage void. Obviously therefore Article 40
contemplates of a situation where a person already married contracts a
subsequent marriage but the first marriage is void. It does not apply to a
situation where the first marriage is a valid and he contracts a
subsequent marriage. This situation where the previous marriage is
valid and the same party contracts a subsequent marriage with another,
this kind of bigamous marriage is governed not by Article 40 but
Article 35 paragraph 4. It’s really the bigamous marriage of the first
kind. Article 40 applies to specific instance where the first marriage is
void and yet the second marriage is bigamous for non compliance with
Article 40. Okay! So, the only evidence allowed by law is a court
declaration so that if the party who contracts a subsequent marriage is
prosecuted of bigamy, in the prosecution for bigamy or in the
proceedings involving the prosecution for bigamy, they cannot
introduce evidence that the first marriage is void. They cannot
introduce any kind of evidence other than a court declaration declaring
the first marriage void. Because the voidness of the previous marriage
in the case of bigamy can be proved by several means. Can be proved
by testimony of witnesses, not necessarily the declaration of the court
that it is void, but if the issue is about the validity of the subsequent
marriage that party cannot prove the voidness of the first other than the
declaration of nullity of the previous marriage. That’s the only form of
evidence allowed otherwise even if it’s true that the first marriage is
void, maybe perhaps for lack of marriage license, the second marriage
is still void and bigamous because of non compliance with Article 40.
What are the instances where a void marriage maybe proved other than
the court judgment declaring a marriage void? The following are the
instances where void marriage maybe proved by means other than by
court declaration:
1. Action for support.
- So for example, Mr. Cid is married to Ms. Gonzaga, the
marriage was solemnized without a marriage license. So
it is void. Suppose Mr. Cid without justifiable reason
refuses to support Ms. Gonzaga. Ms. Gonzaga claims
that because of Mr. Cid she was compelled to stop
working and dedicate her time to take care of Mr. Cid’s
needs and the household. But Mr. Cid contrary to his
promise refuse to take care of Ms. Gonzaga, he refuses
to give support to Ms. Gonzaga prompting Ms. Gonzaga
to go to court filing an action for support against Mr.
Cid. In his defense, Mr. Cid may prove that his marriage
that he has with Ms. Gonzaga is void for lack of
marriage license. The issue there is support, whether or
not Mr. Cid will be compelled to support Ms. Gonzaga.
Now, under the law only if there is a valid marriage that
a spouse may be compelled to support the other. So Mr.
Cid can always invoke the defense that the marriage is
void, therefore he cannot be compelled to support Ms.
Gonzaga. Now, since the purpose here is not remarriage
not the one contemplated in Article 40, Mr. Cid can
always prove that the marriage is void. Not necessarily
by a court judgment, so he may prove it by testimony of
the local civil registrar to the effect that no marriage
license was issued in their favor. So the court in an
action for support, may declare that the marriage is void
and therefore dismiss that complaint of Ms. Gonzaga.
This happens even if there was no prior declaration of
nullity of that marriage. The scenario I just presented is
precisely the facts involved in the case of De Castro vs
De Castro, this is a complaint for support filed by the
wife against the husband. The husband interposed the
defense that their marriage is void for lack of marriage
license. The Supreme Court in that case declared the
marriage void.
2. Settlement of estate of a deceased person
- For example Mr. Cid and Ms. Gonzaga married without
marriage license, so the marriage is void. Out of their
union they begot one child. Subsequently Mr. Cid died
leaving huge or vast properties, so Mr. Cid is now
survived by Ms. Gonzaga the wife and the child. But the
child learns that the marriage between his parents was
solemnize without a marriage license and the child upon
the advice of the counsel learns that if the marriage
between his parents is declared void, he alone can
inherit the entire estate left by the father. Okay! So what
the child can do now is to file a petition for settlement of
the estate of the father, Mr. Cid, and in the same
proceeding if Ms. Gonzaga intervenes and ask that she’d
be adjudicated a portion of the estate of Mr. Cid being
the wife the child can always raise the issue of validity
of the marriage between Mr. Cid and Ms. Gonzaga. He
can always proved that their marriage is void because of
lack of marriage license and this the child can do by
evidence not necessarily a previous declaration made by
the court but any other form of evidence allowed under
the rules. This is an action for settlement of estate of the
decedent, it is not an action to nullify a marriage because
it’s just a special proceedings for settlement of estate
and yet if the issue of validity of marriage raised, the
court may rule on the validity or invalidity of the
marriage. And because this has nothing to do with the
issue of remarriage, any form of evidence not
necessarily a court declaration of nullity of the marriage
maybe allowed. Another instance is, this was the ruling
in the case of Ninal vs. Badayog, it’s the children, and
the case of Juan De Dios Carlos vs. Felicidad Sandoval,
this involves settlement of the estate of the brother and it
was the brother of the husband questioned the validity of
the marriage. Supreme Court said, it can be done
because the brother has the interest. The same principle
was upheld in the case of Llave vs RP and Tamayo, the
husband died and the former wife and the child of the
previous marriage filed the action, they questioned the
validity of the marriage between the decedent the second
wife, allowed. This was the instance where a marriage
maybe proved or the marriage maybe established as void
by evidence other then court declaration.
3. Claims for death benefits.
- When Mr. Cid married twice, he died, death benefits
maybe claimed by the two surviving wives, this is
common. So the issue that will be raised there is, who
between the surviving wives can collect the death
benefits of the decedent, okay. In this particular case, the
action is not on the nullity of marriage but an action to
claim insurance benefits. But since the issue of the
validity of the marriage is necessary for the resolution of
the case, the court can always resolve and declare the
marriage void. And for this purpose, any kind of
evidence that is allowed under the rules maybe adduced
by the parties and maybe relied upon by the court not
necessarily a court order declaring the marriage void.
This was the ruling in the case Carino vs. Carino, this is
the story of a police man SPO4 Santiago Carino who has
deep-seated obsession with woman who has the name of
Susan. He married Susan Nicdao first and subsequently
18
 he another Susan, Susan Yee without obtaining prior
court declaration of the nullity of the previous marriage.
When police officer Santiago Carino died, both
surviving spouses scrambled to get a piece of his death
benefits. Susan Nicdao was able to claim a part but
Susan Yee who wanted to get all the estate or all the
benefits by herself, filed an action to compel Susan
Nicdao the first wife to return whatever the latter had
collected as part of the death benefits of police office
Santiago Carino. So the crucial issue raised in the court
in this case was who among the two surviving wives is
entitled to get the death benefits of police officer Carino.
The court was confronted with the issue on the validity
of both marriages and the court resolved and declared
the status of both marriages as void. The first marriage
was void because it was established that the marriage
was solemnized without a marriage license, is void lack
of formal requisite. The second marriage was also void
for noncompliance with Article 40, prior declaration of
nullity of the previous void marriage. This case
illustrates the situation where the voidness of the
marriage can be proved by evidence other than prior
court declaration of nullity. As I said, the rule that the
voidness of a marriage can only be proved by prior
declaration of nullity of that marriage only applies if the
issue is about the validity of the subsequent marriage,
that’s precisely what is contemplated by Article 40.
The most interesting and controversial issue that relates to Article 40
requiring prior declaration of nullity of a previous marriage is the
matter of bigamy. By reason Article 40 the subsequent marriage is
necessarily void. But, is it bigamous? While it may be void, does it
mean that the parties to the subsequent marriage is or are also liable
criminally for bigamy? That’s the question because while it may be
void it doesn’t follow that bigamy is committed. Article 349 of the
revised penal code defines the crime of bigamy and under this
provision and as re-enforced by a number of decisions of the Supreme
Court, bigamy can only be committed if the first marriage is valid
as well as the subsequent marriage is valid. Meaning it must have all
the essential and formal requisites of a valid marriage and the marriage
would have been valid was it not for the fact that it is bigamous
because it was entered into while a previous marriage is subsisting. So,
from the looks of it, bigamy is only committed if both marriages the
previous and the subsequent are valid. But this is not the controlling
or prevailing ruling now, because jurisprudence has it and this is
primarily because of the incorporation of Article 40 of the Family
Code as it is now, even if the previous marriage is void, void if there
is no prior declaration of nullity of that previous void marriage, the
subsequent marriage entered into by the spouse or party to the
previous marriage constitutes bigamy. This principle holds true
even if after the solemnization of the subsequent marriage a court
order declaring the previous marriage void is obtained. So for
example, Mr. Cid was previously married to Ms. Gonzaga without
marriage license and subsequently he contracted a second marriage and
he was prosecuted for bigamy but during the pendency of the criminal
prosecution for bigamy, Mr. Cid by way of defense filed a petition for
nullity of the previous marriage with Ms. Gonzaga. Now even if this
petition is granted by the court it is no defense to the prosecution for
bigamy because by the fact that Mr. Cid contracted a second marriage
that consummates the crime and therefore the subsequent declaration of
nullity of the previous marriage doesn’t matter. Article 40
contemplates of the court declaration of the nullity of marriage
which is obtained prior to the solemnization of the second, not
after. This is the consistent ruling in the cases of Mercado vs. Mercado,
Abunado vs. RP, Salvador vs. Spouses Serafica, Antoni vs. Veronilla,
People of the Philippines vs. Udtohan, Victoria Jarillo vs. People of the
Philippines. In all these recent cases, the Supreme Court has been
consistent in ruling that the subsequent declaration of nullity of the
previous marriage during the pendency of the criminal prosecution
for bigamy does not exonerate the accused from criminal liability
for bigamy.
Question, what if instead of the first or previous marriage it is the
second marriage which is void? What happens if during the pendency
of the prosecution for bigamy the subsequent marriage is declared by
the court as void? As I said earlier, bigamy to be committed under RPC
349 there has to be a valid previous as well as valid subsequent
marriage. So what happens if the subsequent marriage is likewise void?
It would appear that 349, bigamy cannot be committed but the
prevailing doctrine now is it doesn’t make any difference at all. If the
subsequent marriage is void and declared void by the court, like in
situations the previous marriage is void and declared by the court
as void, bigamy is still committed. This is the ruling in the case of
Victoria Jarillo vs. RP, Veronico Tenebro vs. CA and James Walter
Capili vs. RP. In all these cases the accused contracted two marriages
when prosecuted for bigamy, the accused filed a petition for declaration
of nullity of the second marriage or subsequent marriage and was
granted by the court. The Supreme Court said it does not matter if
the subsequent marriage is declared by the court as void because
RPC 349 punishes bigamy by the mere act of contracting a
subsequent marriage. So as it is now, the subsequent marriage does
not have to be valid marriage and it doesn’t make any difference. Either
the previous or subsequent, bigamy is committed. Why is this so? The
reason advanced by the Supreme Court is that:
1. The need for judicial declaration of nullity of marriage is
intended to do away with continuing uncertainty on the status
of the subsequent marriage. Without the court declaration
declaring the previous marriage as void, the status of the
subsequent marriage is always placed in limbo; to do away
with that, court declaration of nullity of the previous should
be obtained.
2. The Supreme Court said, it is not for the parties to judge for
themselves the validity or invalidity of their marriage, it is
only the court which has the authority to determine the status
of a marriage whether its valid, void, voidable, the parties
cannot. So it is only when there is court action that declares a
marriage void that a marriage maybe considered void.
Without a court order declaring a marriage void, a marriage
even if void, like a voidable marriage is deemed or presumed
to be valid.
So for purposes of Article 40 and for purposes of prosecution for
bigamy there is now no more distinction between a void marriage
and a voidable marriage. Voidable marriage is valid until annulled. A
void marriage, under this jurisprudence, is presumed valid until
declared void by the court.
 Without a court order declaring a marriage void, a marriage
even if void, like a voidable marriage, is deemed or presumed
to be valid. For purposes of Art. 40 and for purposes of
prosecution for bigamy, there is now no more distinction
between a void marriage and a voidable marriage. Voidable
marriage is valid until annulled. A void marriage, under this
jurisprudence, is presumed valid until declared void by the
court.
 What is now the place of MORIGO v. PEOPLE OF THE
PHILIPPINES?
19
 - The Morigo Case is fairly a recent case, decided by the
Supreme Court during the effectivity of the Family
Code. This also involves a prosecution for bigamy.
- It was established, during the first trial, that the first
marriage was solemnized without a solemnizing officer.
The parties were merely made to sign the marriage
contract. He was prosecuted for bigamy when the first
wife learned of his subsequent marriage. When the case
went up to the Supreme Court, the Supreme Court in
favor of Mr. Lucio Morigo.
- The Supreme Court said that for bigamy to be
committed, there should be a valid second marriage, a
marriage that has all the formal requisites of marriage
but void because of its being bigamous; bigamous
because it was solemnized while the first marriage was
subsisting. In the case, the Supreme Court noted that
there was no second marriage to speak of, because there
was no valid marriage ceremony. Thus, in effect, it was
saying that if the subsequent marriage doesn’t have all
the essential requisites for marriage, it will not ripen for
a criminal case for bigamy.
 BUT this ruling in Morigois now superseded by subsequent
rulings. The most recent is the case of PEOPLE v.
EDUARDO UDTOHAN.
- In this case, the Supreme Court took into consideration
the earlier ruling in Morigov. People of the
Philippines. But in this case of Udtohan, the Supreme
Court appears to have said that Morigois now a thing of
the past; because Article 40, according to the Supreme
Court, has settled once and for all, the indispensable
requirement of prior judicial declaration of nullity of the
previous marriage.
- So as it is now, there is really a need for judicial
declaration of nullity.OTHERWISE, bigamy is
committed.
 So, that’s the prevailing doctrine now (PEOPLE v.
UDTOHAN).
 What happens if before the filing of complaint for
bigamy, the spouse from the previous marriage who
contracted a subsequent marriage, was able to obtain a
judicial declaration of nullity of marriage? Can the
accused argue that no liability for bigamy is incurred
because the complaint for bigamy was filed AFTER the
previous marriage was declared void by the Court?
- In PEOPLE OF THE PHILIPPINES v. UDTOHAN,
The Supreme Court said that the time of filing for
bigamy is IMMATERIAL for purposes of determining
liability for bigamy. So long as no court order declaring
the previous marriage void BEFORE the subsequent
marriage was entered into, there is always bigamy.
- So the critical reckoning point is the declaration of the
court of that the nullity of the previous marriage is
obtained before a subsequent marriage is entered into. It
doesn’t matter when the complaint for bigamy is filed.
 QUESTION: What happens when a marriage/marriages
contracted by the accused BEFORE the effectivity of the
Family Code? Art. 40 requiring prior declaration of nullity
of the previous marriage was only incorporated in the Family
Code which took effect on August 3, 1988. This provision is
not present in the Civil Code of the Philippines, which was
the law applicable to marriage before the Family Code took
effect.So, what happens?
- Is Mr. Cid still liable for bigamy for contracting a
subsequent marriage without complying the
requirement of a declaration of nullity of the
previous marriage, when in fact, at that time, it
wasn’t a requirement? How can Mr. Cid comply a
requirement that’s not even there? It would be logical
to say since this was NOT a requirement, he should not
be prosecuted for non-compliance with Art. 40.
- This was answered by the recent case of VICTORIA
HARILLO v. REPUBLIC OF THE PHILIPPINES:
 One argument advanced by the accused, Ms.
Victoria Harillo was that she cannot be
convicted for bigamy because her two
marriages were solemnized before the
effectivity of the Family Code, and there was
no requirement for judicial declaration of
nullity of the previous marriage. Therefore, for
non-compliance of this requirement, which is
non-existent at that time, there can be no
bigamy.
 But the Supreme Court, in resolving the
motion for consideration filed by Harillo, said
that as early as 1995, in the case of ATIENZA
v. BRILLANTES, the Supreme Court made a
definitive ruling that Art. 40 requiring a prior
declaration of nullity of the previous marriage
for purposes of remarriage, be it procedural,
should be given a RETROACTIVE
APPLICATION. Thus, even when the
marriage/marriages contracted by the accused
were solemnized before the effectivity of the
Family Code where Art. 40 was not yet in
effect, bigamy was still committed.
 TENEBRO v. COURT OF APPEALS
- This is the first and landmark case where the Supreme
Court ruled that even when the subsequent marriage is
declared void by the court, it is still bigamous. How did
the Supreme Court justify this ruling:
1. Art. 349 of the Revised Penal Code punishes the
mere act of contracting a subsequent marriage.
2. The Supreme Court said that while a marriage was
declared void by reason of psychological incapacity
(it is in this case of Tenebro where the subsequent
marriage was declared void by reason of
psychological incapacity of the second wife), the
declaration retroacts at the time of the celebration
of marriage; it does not necessarily follow that it
hasn’t produced any legal effects. So even if it’s
declared void, it produces legal effects.
The legal effects may include the (1) status of the
children. Because under Art. 36, psychological
incapacity, children conceived or born BEFORE a
decision of a court declaring the marriage void by
reason of psychological incapacity becomes final
and executory, the children will be considered
legitimate even when, eventually, the marriage will
be declared void. General rule is, when a marriage
is declared void, the child or children born inside
that marriage shall be considered illegitimate. One
of the exceptions is a marriage declared void by
reason of psychological incapacity.
Another legal effect is (2) liability for bigamy. A
marriage declared void by reason of psychological
incapacity may result in a criminal liability for
bigamy.
20
 The case of Tenebrowas cited in the subsequent case of
Harillo, and then Capili. So, there are three (3) cases
involving a declaration of nullity of the subsequent marriage,
and yet bigamy was still committed according to the Supreme
Court.
 WHAT ARE THE EFFECTS OF DECLARING A
MARRIAGE VOID BY REASON OF ARTICLE 40?
1. The subsequent marriage is void
2. The subsequent marriage is bigamous, therefore the
party who contracted the marriage twice is criminally
liable for bigamy.
3. The effects relayed to the properties, another
transactions that the party may have entered into prior to
the declaration of the nullity of the previous marriage.
What are these effects?
 Those effects mentioned in PAR. 2, 3, 4 AND 5 OF
ART. 43 OF THE FAMILY CODE.What are the
effects as to their property relations and as to the
contracts entered into before the judgment declaring
that marriage void becomes final?
a. Under ART. 50 OF THE FAMILY CODE, if the
marriage is declared void under Art. 40, the
effects in Art. 43 applies.
1) If the marriage is declared void under Art.
40 or annulled under Art. 45, the effects
mentioned in Art. 43 par. 2, 3, 4, 5 shall
apply.
o The absolute community or conjugal
partnership of gains, as the case may
be, shall be dissolved. Take note that
during the existence of the marriage,
the property relations between the
parties may be governed by various
types of property regimes.The most
common is the Absolute
Community of Property Regime:
the general rule when the parties did
not adopt to another property
regime; and the Conjugal
Partnership of Gains. It shall be
dissolved.
o Under Art. 43, 2nd par., the
dissolution of the Absolute Property
or the Conjugal Partnership of
Gains, as the case may be (meaning
which of the two is preferred by the
parties), the liquidation shall follow
the procedure provided under Art.
102 (Absolute Community of
Property Regime) or Art. 129
(Conjugal Partnership of Gains).
If you look at Arts. 102 and 129,
there is a specific rule on how to
liquidate the Family home of the
parties. It says there that the Family
home, in case of liquidation in ACP
or CPG, the Family home should be
adjudicated to the spouse with
whom the majority of the children
choose to stay. In other words, the
Family Home will not be divided. It
will be given to the spouse chosen
by the majority of the Children.
This rule DOES NOT APPLY
when the marriage is declared void
on grounds OTHER THAN Art. 40.
This rule will only apply if the
marriage is declared void for non-
compliance with Art. 40, by specific
provision of Art. 50 in reference
with Art. 43.
When the marriage is declared on OTHER GROUNDS other than Art.
40, the property regime of the parties to that void marriage is neither
ACP nor CPG. Because as a general rule, ACP, CPG and other kinds of
regimes, shall apply only if the marriage is valid. So basically, if the
marriage is void, their property regime is neither ACP nor CPG.
But by expressed provision of Art. 50 in relation to Art. 43, even
when the marriage is void by reason of Art. 40, the law itself provides
that their property regime is that either of ACP or CPG. That is why,
for purposes of liquidation, the rules provided for under Art. 102 and
129 apply.
Conversely, if the marriage is void on grounds OTHER THAN of Art.
40, Under Art. 147 and Art. 148, their property regime is that of a
special kind of co-ownership. It’s a co-ownership depending on the
nature of the void marriage. Art. 147 if the parties have no legal
impediments, and Art. 148 if there is legal impediments. The
liquidation of their co-owned properties shall follow the rule on co-
ownership.
Liquidation of the co-owned properties shall follow the rules on co-
ownership and accordingly under article 496 of the Civil Code
“Provision on Co-ownership” there are only two ways to liquidate a co-
ownership:
1. Extrajudicial partition – where the parties execute as between
themselves a partition of their properties dividing the
properties between themselves.
2. Judicial partition- if they could not agree they can file a
petition in court for judicial partition.
Division of co-owned property whether extra-judicially or judicially
rules of co-ownership apply.
Take note: Family home will be divided equally between the parties
and the rule that the family home shall be adjudicated to the spouse
with whom the majority of the children choose to stay does not apply.
When the conjugal partnership gains the absolute community properties
liquidated in accordance with Article 102 and 129, the guilty party is
not entitled to share the net profits of the property acquired during their
cohabitation.Meaning: His share in net profit shall be forfeited; forfeit
shall be made in favor of the ff:
1. Common children
2. The children of the guilty spouse
3. In favor of the innocent spouse
Net profit – is the increase in value of the properties between the
market value at the time of marriage and the market value at the time of
dissolution of the marriage.
Even if guilty he/she remains to be entitled to the principal
share of the amount from the market value at the time of their marriage.
2. Another effect if the marriage is declared void by reason of
Article 40 “ Donation by reason of marriage made by one spouse in
favor of the other or made by a third party in favor of either or both of
21
the contracted parties shall remain valid if the marriage is declared
void. But if the donee acted in bad faith the donation in consideration
of marriage is deemed revoked by operation of law.”
3. In case of an insurance policy, if the beneficiary in the
insurance policy acted in bad faith or he is the guilty party, the innocent
spouse may revoke the designation of the guilty spouse as the
beneficiary even if the designation made irrevocable. But the innocent
spouse has the option to revoke it.
Meaning: the Insurance Policy is only revocable, it is valid until
revoked. In case the beneficiary s guilty.
4. The guilty spouse is disqualified to inherit from the innocent
spouse either by testate or testamentary succession. So if the innocent
spouse executed last will and testament bequeathing all his testament to
his wife but the wife was established to be guilty, that will which
bequeath the properties to the wife will be disqualified.
If the husband died without a will and survived by the wife
but the wife is guilty. The wife cannot inherit by testate succession
under Article 43.
5. In Sec. 19 Par. 1 of Administrative Matter 02/11/10 of the
Supreme Court which are “The rules governing declaration of nullity of
void marriages and annulment of voidable marriages”
Take note of this: Sec. 19 Par. 1 says that: No decree of
nullity or annulment of marriage shall be issued unless the requirement
of liquidation, partition, distribution of the properties of the spouses
and delivery of presumptive of legit things shall have been complied
with.
In a petition for nullity of marriage there is a distinction
between the decision as well as the decree of nullity.
The decision refers to the entire judgment of the court
including the facts, evidence, discussion and dispositive portion. It’s a
long piece of paper containing the entire findings of the court.
But under the rules it is not enough for the court to issue a
decision the final act that the court shall do is to issue the decree of
nullity/annulment.
Decree of Annulment/Nullity – piece of paper containing the
dispositive portion of the decision. Contains the “Wherefore the court
here by declared the marriage between petition respondent null/void by
reason of Article 36 or any ground that warrants the dissolution of the
marriage.”
If the marriage is declared void by reason of Article 40 the
court is required under administrative matter 02/11/10 to do the ff:
1. The decision shall contain a declaration
that the marriage is void.
2. It shall provide for the liquidation,
partition and distribution of the
properties of the spouses.
3. It shall provide for delivery of the
presumptive legit things of the
children.
4. It shall provide for the support and
custody of the children if
applicable.
So the court shall not only declare that the marriage is void
but just as important to provide these items in the decision
itself.
Note: I’m pointing this out because if the marriage is
declared void other than Article 40 this requirement of
complying with liquidation, partition, distribution and
delivery need not be included in the decision itself.
This is the ruling in Valdez vs RTC and the more recent case
of DenyovsDemyo(notsure). The court said in this cases that No decree
of nullity can be issued unless the liquidation, partition, distribution and
delivery shall have been complied with. But the SC modified the
decision of the Trial Court holding that if the ground of nullity of
marriage is other than Article 40, the liquidation of their properties
need not be done in the same petition for declaration of nullity it can be
done separately.
Take note also that: Another reason why a subsequent marriage is
deemed void for none compliance with Article 40 is because of Articles
51, 52 and 53 of the Family Code.
Article 53 declares a marriage void for failure to comply with
liquidation, partition and distribution requirement mentioned in Articles
51 and 52. Failure to comply 51 and 52 by virtue of Article 53 the
subsequent marriage is void. What is contemplated in Article 52 is a
situation where a marriage is declared void because Article 40 was not
complied with. Article 40 contemplates a situation of two marriages
where a party contracts a subsequent marriage without first obtaining a
court order declaring the first marriage void.
Article 52 the partition, liquidation, distribution, delivery and
the recordings of these matters in the appropriate Local Civil Registrar
and Registry of Property. Failure to comply 51 and 52 when there’s a
subsequent marriage, so that if there is no court order declaring the first
marriage void and the party contracts a second marriage then there’s no
way by which he can comply by Articles 51 and 52. Articles 51 and 52
presupposes a court judgment declaring the first marriage void. The
recording of these is not possible without a decision.
So how do you ensure that a subsequent marriage is valid? What are the
requirements if the party is already married and he intends to contend a
second marriage? What are the things that the party should comply?
1. he should file before contracting a subsequent marriage
a court order declaring the previous void marriage void.
2. The judgment declaring the previous void marriage a
nullity, must not only declare that that marriage is but
the judgment shall also provide liquidation, partition,
distribution of the properties and delivery of the legit
things of the parties. And the support and custody of the
common children.
3. The liquidation, partition, distribution of the properties
and delivery of presumptivelegit things of the parties, as
well as the decision that declares the marriage void shall
be recorder in the LCR where the marriage certificate is
recorded and it shall be recorder in the appropriate
registry of property.
Take note: even if the party is able to obtain a prior declaration of
nullity of the previous void marriage but he contracted a subsequent
marriage without the requirement of recording the declaration of nullity
was not recorder in the LCR neither was the partition, liquidation etc
was not recorder in the appropriate Registry of Properties the effect is
the subsequent marriage is still considered void by virtue of Article 53.
So he can still be prosecuted for Bigamy.
Article 41
What do you do when your spouse is missing? If a spouse is
missing for 2years under normal circumstance or 2years under
involving danger of death, the present spouse for purposes of
remarriage is required to initiate an action for declaration of
22
presumptive death of the missing spouse. It’s a judicial proceeding but
summary in nature.
Requirement for the Summary Proceeding, the petitioner needs to
establish that he or she exerted diligent efforts to ascertain the
whereabouts of the missing spouse. Specifically, the petitioner is
advised to resort to radio announcement, newspaper or letter addressed
to the missing spouse.
All this are aim to establish to the satisfaction of the court that in filing
of the petition for declaration of presumptive death is really done in
good faith so the most important thing to prove there is the diligent
effort exerted to locate and despite the effort everything prove futile so
if the court is convince that the filing is made in good faith then the
court may issue an order declaring that the missing spouse as
presumptively dead if this is issued the present spouse may now
contract a subsequent marriage. The subsequent marriage can only be
terminated the dissolution being automatic if the missing spouse
eventually re appears but the mere physical re appearance of the
missing spouse is not enough to terminate the marriage the subsequent
the law requires under article 42 that the re appearing spouse or any
interested party shall execute an affidavit stating the circumstances of
the re appearance the missing spouse of the re appearing spouse shall
record the affidavit in the local civil registrar where the spouses in the
2nd subsequent marriage are residing take note it should be recorded in
the local civil registrar of the place where the spouses of the subsequent
marriage residing. Because precisely the purpose there is to notify the
spouses in the 2nd marriage so take note the recording may be done by
the re appearing spouses or any interested party it is the recording that
produces the effect of automatic dissolution of subsequent marriage by
implication the act of recording of the affidavit of appearance
automatically restores the previous marriage there is no need to do any
positive act for the previous marriage to be restored to its original status
so the subsequent automatically terminates the previous automatically
resolves. What happens if the missing spouse physically re appeared
but no affidavit of re appearance was filed in the appropriate local civil
registrar the rule is the mere re appearance of the missing spouse does
not affect the status of a subsequent marriage, the subsequent marriage
remains valid. What about the previous marriage? Does the physical re
appearance of the missing spouse restore the status of the previous
marriage? In the case of SSS social security system v. terresita Hart
baylon the SC said that the mere physical presence or appearance of the
missing spouse does not produce any effect at all as to the previous or
as to the subsequent because in legal contemplation that missing spouse
although physically present is considered an absentee. Presume dead
despite his physical presence so the status will remain the marriage the
previous marriage is deemed dissolve by death because he is still
considered legally dead and the subsequent marriage remains valid.
Cid: so what happens to the subsequent marriage by the act of
appearance of the previous spouse presume to be dead will the
subsequent marriage with the declaration of appearance be
automatically dissolve … (inaudible words) bisaya xa ang iba 
Atty t.: automatically dissolve but the effect shall follow 43. There are
the effects mentions in 43. But there is no need to file anything in court
to have it dissolve because what terminates the subsequent marriage is
the mere fact of recording of the affidavit of re appearance and the
result and effects mention in 43 will follow. The effects there are the
following no.
1. The children born before the termination is legitimate. Their
absolute community or conjugal partnership obtain shall be
liquidated. The donation made by reason of marriage shall
remain valid unless the donee acted in bad faith in which case
it is revoke by operation of law the insurance policy shall
remain valid but the beneficiary acted In bad faith the donor
may revoke it, it is revocable and disqualification to inhibit
from the other if the other (inaudible words) spouse is guilty
of (inaudible words) take note that even if one of the parties
of the subsequent marriage acted in bad faith the marriage is
still valid but terminated by re appearance. How do you
determined bad faith or good faith on the part of the parties to
the subsequent marriage. Bad faith consist In the knowledge
of either or both of the parties of subsequent marriage the
missing spouse is really alive it should be determine at the
time the marriage was solemnized. Doesn’t matter if the
knowledge came after the solemnization. Alright so if at the
time of the solemnization of the marriage the husband or the
2nd wife was aware of the actual whereabouts of the missing
spouse there is bad faith and under article 43 the one who
acted in bad faith shall forfeit his share in the networkings?
Any donation made in his favor is revoke by operation of law
any insurance policy where he is designated as beneficiary is
revocable at the instances and he or she cannot inherit any
testamentary succession that’s the effect under art 43. What
happens if both are guilty? Both party of the subsequent
marriage knew at the time of the solemnization of the
marriage that the allegedly missing spouse in the previous
marriage is still alive. Under article 44 there are the effects
there. The effects are as follows :
1. The subsequent marriage is void. So take note in 43 the
marriage is valid because only one is in bad faith but in
44 the marriage is void ab initio because both are in bad
faith. Any kind of donation made in favor of one in
favor of the other revoke by operation of law not only
under art 44 but also under art 739 of the civil code it
says there that donation made by parties guilty of
adultery and concubinage the donation is void be it
against public policy and any testamentary disposition
made by one in favor of the other is revoke by
operations of law and neither can inherit from the other
if there is absence of marital relationship. When the
marriage is void neither spouse is an heir to the other.
There is no right of successions. You remember the
different effects under art 43 and 44 take not that the
effects in 43 apply to both marriage subsequent marriage
automatically extinguish by the recording of the
affidavit of re appearance, marriage declared void by
reason of art 40 and marriage declared annulled under
art. 45 so the same effects mention in at 43.
Q. Who can file the affidavit of re appearance?
A. the rule art 42 specific the re appearing spouse or any interested
party may record or execute the affidavit of re appearance and record
the same at the office of local civil registrar where the spouses to the
2nd marriage reside. Marriage is viewed with public interest it cannot be
left with the mercy of the parties to the marriage. So even if against the
rule? Public policy is paramount and takes precedence over the
personal comfort of the parties. But it doesn’t mean that you can be
compelled to re unite.
Q: sir ahh ni appear na si previous wife and of course diba (inaudible
words) Atty. T. Ahh yeah that’s the hard reality there.So the moral
lesson there is if you marry someone whose previous spouse was
declared presumptively dead you always consider that you marriage is
always at the state of or which is only temporary always subject to the
threat and risk of the previous missing spouse re appearing because
that’s why its automatic.
Who may file a petition for nullity if marriage?
As it is now effective march 15 2003 and if the marriage is solemnize
during the effectivity of the family code by express provision of
23
administrative matter of 02-11-10 of the SC only the husband or the
wife may file a petition for nullity or declaration of nullity of a void
marriage. Only the husband or the wife so your parents in law cannot
interfere this rule however take note does not apply under any of the ff.
instances no. 1) if the marriage was solemnize before the effectivity of
the family code the right to file a nullity for petition is not limited only
to the spouses any interested party can file so determined if the
marriage was solemnize before or during effectivity , if it is solemnize
before any interested party can file. This was the ruling in case of juan
carlos de dios vs Sandoval as re affirm by the subsequent case of llabi
vs Republic and soraida tamano 2) where this rule does not apply, even
if the marriage was solemnize during the effectivity of the family code
but the petition for nullity of marriage was filed before march 15 2003
when administrative matter 02-11-10 SC took effect. Because the rule
that requires that only the husband or the wife can file is provided for
by administrative matter 02-11-10 SC and according to this cases this
rule shall not be given retroactive application. So only marriage during
the effectivity of the family code and petition filed after march 15 2003
is governed by the rule that only the husband or the wife can file. So
there are two exceptions to this rule: marriage before the effectivity of
the family code and marriage solemnize during effectivity but the
petition for nullity of marriage was filed before march 15 2003. You
read the case Juan de dios carlos it was the brother of the husband who
filed a petition his personality was question the SC said the rule that
only the husband and the wife can file applies only to marriages
solemnize during effectivity of the fam. Code and petition filed on or
before march 15 2003 the petition involve in this case was filed before
march 15 2003 and therefore the controlling rule is that any interested
party the brother was deemed to be an interested party because if he can
prove that the marriage between his brother and his brother’s wife is
null and void and the children born during that marriage are not
children of his brother the petitioner there as the brother of the decease
is entitled to inherit the estate of the decease brother that makes him an
interested party. In case of llabi vs republic the petition for nullity of
marriage was filed by the previous wife the former wife and the
children of the previous marriage the SC said the children by the
previous marriage are interested parties it was establish that the
marriage or the petition for nullity of marriage was filed before march
15 2003. And therefore not covered by the present rule.
ANNULMENT
Let’s go to Annulment, Article 45. Articles 45 enumerate the grounds
for annulment of marriage. In annulment like nullity, the marital bond
is dissolved so the marriage, the marital ties really severed and
therefore the parties can remarry. The same effect as when the marriage
declared void, but there are substantial distinctions between nullity
of marriage or void marriage from a voidable marriage. What are
these distinctions?
Number 1- A void marriage is void ab initio so it is void from the very
beginning so conceptually it’s nothing, it’s non-existed but a voidable
marriage is for all the intent of purposes valid until a proper property
goes to court and have it declared annulled.
Number 2- An action to file nullity of a void marriage does not
prescribe while an action to annulled a voidable marriage prescribes
under article 47.
Number 3- A void marriage cannot be ratified by free cohabitation, so
if your marriage was solemnized without a marriage license, free
cohabitation will not validate the marriage. It will not prevent the filing
for a petition for declaration of nullity on such a void marriage but in
annulment of a voidable marriage except grounds number 5 and 6
physical incapacity and affliction with serious STD’s and incurable,
free cohabitation precludes the filing of an action for annulment of a
voidable marriage. The free cohabitation constitutes ratification to
another while defective marriage like when the voidable marriage is
grounded on insanity or lack of parental consent or fraud the aggrieved
party is precluded from filing a petition for annulment of a voidable
marriage if the meantime he resorts to free cohabitation which amounts
to ratification. This principle of ratification does not apply to a void
marriage.
Number 4- Void marriage maybe attack directly or collaterally take
note!
Direct attack refers to an action to declare the marriage void it is an
action that is intended for purposely for the declaration of nullity of that
void marriage. A collateral attack of a void marriage happens when the
validity of the marriage or when the marriage is suit to be declared void
in an action not directly intended for the purpose but the issue of
validity can or is involved in that action and it is necessary to the court
to resolve the issue of the validity of marriage to resolve the case even
if the case is not really intended for the purpose. A typical example of a
collateral attack of a void marriage happens in an action for a support
like what happened in the case of De Castro vs De Castro. The wife for
refusal of the husband to give support, file an action in court to compel
the husband to support the wife because obligation to support the other
spouse arises from a valid marriage by way of defense the husband in
refusing to give support interpose the defense that the marriage
between them is void for lack of marriage license and therefore he is
not obliged by law to give support to the wife. The Supreme Court
resolved and ruled that the marriage is void even if the petition is not
intended, is not a declaration for nullity of marriage but only an action
to support or only an action to compel support. So it’s a collateral
attack against the validity of the marriage, it is allowed if the marriage
is void. You cannot do this collateral attack if the marriage is only
voidable because the only way to declare a voidable marriage annulled
is to bring an action specifically intended for the purpose. No direct or
no collateral attack against a voidable marriage.
Take note that when they void marriage is or if when the validity of a
void marriage attack collaterally, the arraige is assailed as void in a
collateral attack subsiding. The rules governing the validity of a void
marriage do not apply, so you don’t follow the rules provided for in
Administrative matter 02-11-10 of the Supreme Court. The rules or this
administrative matters applies only to govern direct action for
declaration of nullity of marriage in other words if the petition is for the
declaration of nullity of marriage in a direct attack, you apply the rules
prescribed in administrative matter 02-11-10 of the Supreme Court
otherwise if it’s a collateral attack you apply the ordinary rules of
procedure. There are requirements prescribed under the rules governing
direct petition for nullity of marriage which are not applicable to
ordinary action. Another distinction is that in a void marriage, the
voidness of a void marriage maybe attack or maybe assailed even after
the death of the parties to that void marriage. So if the husband died, an
interested party in an appropriate action may question the validity of
marriage between the deceased husband and the wife. This can be done
24
as a matter of fact under administrative matter under 02-11-10 of the
SC, the only instance where an interested party like the children may
file or may question the validity of a void marriage is after the death of
the party or parties to the marriage and can be done only in a petition or
proceeding of settlement of the estate of the deceased. Under this
administrative matter, only the husband or the wife may file but it
doesn’t mean an interested party cannot assail the validity or the
voidness of a void marriage. The rule or when the rule says that only
the husband and the wife may file a petition in the rule of marriage it
simply means that only the husband and the wife may file a direct
petition for declaration of nullity of marriage but if the voidness of a
void marriage is attack collaterally this can be done not only by the
husband and the wife but by any interested party. Just like what
happened in the case of;
Juan De dios Carlos vs Felisidad Sandoval where the party who filed
a petition or who assailed a nullity of marriage was not the husband or
the wife or the brother of the husband. It can be done after the death of
the parties. So for example if the husband contracted two marriages
during the subsistence of the first and of course the second marriage is
void for being bigamous and that husband died. The children by the
first marriage can question the validity of the subsequent marriage and
are to bedeclared void for reason of bigamous/bigamy but not on a
petition for declaration of nullity which is a direct action but only in a
settlement proceedings involving the estate of the deceased father or
husband. So its not a direct attack but a collateral attack in a proceeding
not for the declaration of nullity but for settlement of the estate of the
deceased. So take note of the meaning that only the husband or the wife
can file.
Take note! If the marriage is voidable this cannot be declared annulled
after the death of the parties it can only be annulled during the lifetime
of the parties to the marriage. And not just any parties to the marriage
can file but there are specific parties who are allowed or authorized by
law to file a petition for nullity of for annulment of a voidable
marriage. Like when the marriage is voidable on the ground of lack of
parental consent the parties who can file the action are the party who
failed to obtain a parental consent or the parents whose parental consent
was not obtained. Or in case of insanity, the action for annulment of a
voidable marriage on the ground of insanity can be filed by the insane
when he comes to reason or by the sane spouse who knew or did not
know the insanity of the time of marriage or it may be filed by the
guardian or relatives of the insane. So you see its not only limited to the
husband and wife but there are specific persons authorized by law who
can file a petition for annulment of a voidable marriage. So these are
the basic essential distinctions between voidable and a void marriage.
So what are the grounds for annulment of a voidable marriage?
Take note that these grounds are either defects or the said ground are
defects in the essential requisites that’s why they are called voidable.
Defect in the essential requisites is not absolute absence of essential
requisites but only defects. So what are the gounds?
# 1- Lack of Parental Consent
- When the parties are between the ages of 18 and 21 it is
required that parental consent should be obtain. Failure to
obtain parental consent renders the marriage under article 45
voidable. Who can file the action? The person or the party
who fails to obtain parental consent and when can he file?
Meaning the prescriptive period to file the petition for
annulment of a voidable marriage on the ground five years at
the time that party reached the age of 21 so 21-25. Beyond
25, the action for annulment may not prosper by reason of
prescription. Or the action for annulment may be filed by the
parents of the parties whose consent was not obtained.
- When can the parents file the petition? Before the party
who failed to obtain their consent reached the age of 21. So
pag 18-20 the parents can file the petition for annulment of
voidable marriage on the grounds of lack of parental consent.
Take note that the action for annulment of a voidable marriage on the
ground of lack of parental consent. The action for annulment of
voidable marriage on the ground of lack of parental consent may not
prosper if the party who failed to obtain parental consent freely
cohabits with the other when he reached the age of 21 so free
cohabitation precludes a filing of an action for annulment of a voidable
marriage.
#2- Insanity
- Insanity of a party, who can file an action? As I said it is
the insane.
- When can the insane file an action? At any time the insane
comes to reason or when the insane is in lucid interval he can
always file an action for annulment of a voidable marriage on
the ground of insanity or if the sane spouse did not know
about the insanity of the time of the solemnization of a
marriage, the sane spouse may file the petition for annulment
during the lifetime of the insane. The same principle applies
if the petition id filed by the guardian or person who has the
charge of the insane. The guardian or the person having
charge of the insane may file a petition at any time during the
lifetime of the insane. Take note that when the insane comes
to reason or when he is in lucid interval and he freely
cohabits with the other spouse the cohabitation amounts to
ratification therefore an action for annulment will no longer
prosper. Free cohabitation precludes a filing of an action for
annulment. Take note that it is the free cohabitation made by
the insane when he comes to reason that operates to ratify an
annullable or voidable marriage. So if the insane now comes
to reason freely cohabits, the sane cannot anymore file an
action for annulment even if under article 47 the sane has the
right to file the action at any time during the lifetime of an
insane. So the interest of the sane spouse is subordinated to
that of the insane. While both of them may have independent
rights to file the petition for annulment once the insane now
becomes sane who comes to reason by free cohabitation
frustrates the sane spouse. The sane spouse cannot anymore
ask for annulment. So moral lesson there, never marry an
insane!
#3- Vitiated consent by fraud. So the consent here is vitiated,
defective not absent but only vitiated defective!
The defect here is caused by fraud, take note that under article 46 the
law contemplates only of 4 kinds of fraud as would constitute a ground
for annulment of a voidable marriage. Any other form of fraud, how
odious it may be will not constitute a ground for annulment. So take
25
note, make sure to take this kinds of fraud to heart this are enumerated
in article 46.
What are these kinds of fraud?
1.) Concealment of previous conviction for an offense
involving moral turpitude. There are crimes which involves
moral turpitude. Generally, these are crimes punished under
the RPC crimes that are intentionally committed. So
maliciously done these are called crimes involving moral
turpitude, estafa, murder, rape. Those intentional felonies are
generally involves moral turpitude. If this fact of a final
judgement of an offense involving moral turpitude is
concealed take note that it must be CONCEALED by one
from the other. If there is fraud it’s a ground.
2.) Concealment by the wife of her pregnancy by the other.
So if the wife concealed the fact that she is pregnant by
another man at the time of the solemnization of the marriage
and this is later on discovered by the husband, the husband
can always file for annulment. So this can only happen if the
one conceals it is the wife and what is being concealed is the
fact that the wife is pregnant by another man. Any variation
will not fall under fraud so if the husband who conceals that
he has a child by another woman it will not be fraud. It’s not
fraud, it’s just the pregnancy or if the wife misleads the
husband that she is pregnant when in truth and in fact she is
not just to compel the husband to marry her it will not fall
under fraud because to constitute against fraud the matter
concealed must be the fact that the wife is pregnant by
another man.
3.) Concealment of STD regardless of the nature so even if it’s
curable or even if it is not serious, if it is concealed it is fraud.
4.) Concealment of drug addiction, alcoholism,
homosexuality and lesbianism. If this is concealed it’s a
ground for annulled.
#4 Vitiated consent by force intimidation or undue influence. So
marriage solemnized at the point of the barrel of a gun that is voidable.
Vitiated consent by means of intimidation, force, violence or undue
influence.
#5 Physical Incpacity- refers to impotency on the part of the husband
and there is that certain ailment counterpart of….. It’s a medical
condition of a woman which would expose here excruciating pain
during intercourse. There is that medical condition, so that’s the
counterpart for impotency on the part of man. So when the woman
suffers from excruciating pain every time she engages in sexual
intercourse that’s ground for annulment, a physical incapacity. The
physical incapacity here TAKE NOTE! must be permanent and
incurable but the permanent and incurable character of physical
incapacity is understood in its relative sense. Its only with respect to
that particular spouse. So if the husband is impotent in so far as the
wife is concerned but not in so far as his paramour is concern that can
still be a ground for annulment because our concept of physical
incapacity is relative. It is permanent in so far as the wife is concerned
not permanent in so far as the other girls are concerned. Ahhh Okayy!
HAHA. And the reason for this in understandable because it’s the wife
who is the aggrieved party so it’s the wife who can file the petition.
Lastly #6. STD or Sexually Transmissible Disease which must be
serious and incurable. Take Note! You distinguished STD as
independent ground for annulment and STD as a form of fraud. The
STD which constitutes a ground under fraud is regardless of its nature
whether serious, whether curable it doesn’t matter. What makes it a
ground for annulment is the fact that it is being concealed. But the #6
STD or the last ground, what makes it a ground for annulment is
the fact that it is a serious and incurable because it doesn’t have to
be concealed. If it is concealed then it falls under fraud. Because in
fraud the STD there is regardless of its nature. So you distinguished the
two because the rule will vary depending on whether it falls under 43 or
it falls under . Their maybe a difference on the prescription of an
action.
Question ni Rizza on physical incapacity like the pungkols or putol
kamo, tiil, etc. HEHEHEHE!
The physical incapacity referred to a ground for annulment is sexual
incapacity, it is the impotency. It is the incapability husband or the man
to get an erection, that is what meant by physical incapacity not
physical incapacity like the husband is already seated in the wheelchair
is not the one contemplated. It has something to do with the ability to
engage in sexual intercourse. So it’s not just any physical incapacity
like incapacity to walk, speak or move but it is sexual. Pungkol or putol
is different from impotency; impotency is the incapability to get an
erection. Take note! You have to take this to heart; all the grounds
mentioned in Article 45 must exist at the time of solemnization of the
marriage. They must exist at the time of the wedding or before but not
after the solemnization. So if after at the time of the wedding the
husband is still physically abled but maybe because of over indulgence
he suddenly become impotent after, that’s not a ground because that
occurred after the solemnization of the marriage.
Question by Mali-Maling Akala! HAHA
Mali: What if nag sex mo before marriage marriage unya you realized
nga impotent diay cya.
Atty Torregs: That is why there is the wisdom of due diligence. They
called this if you buy a car, a test drive. Lol
KUYAWA MOKATAWA NIGEL DIRI NGA PART OY TSK
YAAAAAYYYYY! HAHAHAHA
Atty: There are various ways to test 
Mali: What if sir walay uso test drive? KANI JUD C MALI- MALING
AKALA! HAHA
Atty: Bisan hikapon lang nimo, d diay na mahibaw-an? HAHAHAHA
grabe gyud nigel mokatawa oy ilhan kayo ba.
Atty: Is that really immoral? Just a soft touch HAHA bastos nis Atty.
Torregs da. But in a way it’s the ability to get an erection. So maybe
you can do some touchee toucheee there and determine if he can get an
errection.
Again, there is wisdom in DUE DILIGENCE  or getting to know the
……………….
Proper continuation: Take NOTE!
Among the grounds for annulment, the first or the last two grounds
which is physical incapacity and STD which is serious and incurable
are not susceptible to ratification. Unlike like of parental consent,
insanity and vitiated consent which are susceptible to ratification. If the
26
ground is STD #6 or physical incapacity #5 there is no ratification. So
even if the wife for example, when she learned that the husband is
physically or impotent but she tried to stay on hoping that they can still
be happy without it and she retries to freely cohabit with the impotent
husband she can still file a petition for annulment of marriage before
five years from solemnization of the marriage. So she can have the five
year prescriptive period to think it over. Because it’s not susceptible to
free cohabitation unlike in fraud for example like when the husband
learns that after the solemnization of the marriage that the wife was
already pregnant by another man because six months after their
wedding, when it was their first time the wife already delivered a baby.
KUYAWA GUD! HEHE. And obviously the baby has all the physical
characteristics of his compadre but after learning this the husband
forgive and tries to forget so he continued to freely cohabit with the
wife hoping that the next time it would be surely his. He cannot
anymore file an action for annulment of that voidable marriage of free
cohabitation because by free cohabitation it was deemed to have
ratified the otherwise annullable marriage.
What is the period of prescription for fraud? Five years from
discovery of the fraud. If vitiated consent by force, intimidation or
undue influence, five years from the secession of the cause when the
violence or intimidation or undue influence disappeared, you count the
five year prescriptive period. If the ground is physical incapacity, the
prescriptive period is five years from the solemnization of marriage and
if the ground is STD serious and incurable, five years from the
solemnization of marriage. That’s why if the STD is concealed
regardless of its nature, it would be to the advantage of the aggrieved
party to invoke it as fraud because the prescriptive period is counted
not from the solemnization of the marriage but from discovery of the
fraud. If the marriage is annulled under Article 45 that it will produce
the same effect as mentioned in Article 43 paragraph 2, 3, 4 and 5. This
is in accordance with Article 50 of the Family Code. The effects in
Article 43 apply to marriage declared void under Article 40, marriage
annulled under Article 45 and marriage automatically terminated upon
the recording of the affidavit of the reappearance of the missing spouse.
These are the 3 instances which will produce the effects enumerated in
Article 43. Take note of that!
Legal Separation
-Legal separation is otherwise referred to as relative divorce. As
distinguished from nullity or annulment of marriage, in legal separation
the marriage bond remains intact but in some other respects the parties
are separated (inaudible). As opposed to annulment of marriage and
nullity, in legal separation the grounds there enumerated in Article
55(inaudible) may exist before, during or after the solemnization of
marriage. In annulment, the grounds must exist at the time of
solemnization or before but never after. In nullity, the ground must
exist at the time or before the solemnization of the marriage.
What are the grounds for legal separation?
There are 10. So familiarize yourselves with these grounds and
differentiate them from annulment or void marriage.
Art. 55 (Grounds for legal separation)
1. So we have the repeated physical violence or abusive conduct
directed against the petitioner, common children/child or the
child of the petitioner. So if the repeated physical violence or
abusive conduct is directed against the child of the
respondent, it doesn’t fall under this ground. For why? The
physical, repeated physical violence must be directed against
any of the 3 mentioned in paragraph 1. Any (inaudible), it is
taken out of the context of the 1st ground. The physical
violence there, to be a ground for legal separation, must be
repeated. So if the physical violence is inflicted once, it does
not fall under the 1st because it is not repeated, regardless of
its nature. Even if it is serious, inflicted only once, then it
can’t fall under the 1st. The abusive conduct, need not be
repeated. This is the distinction.
2. Physical violence or moral pressure. The physical violence or
moral pressure to constitute legal separation, must be
intended for one purpose and that is to compel the petitioner
to change her/his political or religious affiliation. So if you
happen to be politicians, husband and wife, you belong to
different parties, one belongs to Liberal party and the other is
a member of UNA, neither can employ physical violence or
moral pressure to compel the other to change his/her political
affiliation, or religious affiliation. You cannot compel your
spouse to change his/her religious affiliation to belong to the
same church or religion. That’s a ground.
3. Attempt of the respondent to corrupt or induce the petitioner,
or the common child or the child of the petitioner, to engage
in prostitution or connivance in such corruption or
inducement.
4. Conviction by final judgment, sending the respondent to
imprisonment or more than 6 years, even if pardoned.
Distinguish this from conviction by final judgment to a crime
involving moral turpitude, which is a ground for annulment.
In annulment, what makes it a ground for annulment is it is
concealed because it is a crime of fraud. And what is relevant
there is the fact that the crime involves moral turpitude, not
the penalty imposed. So regardless of the penalty, if the crime
involved moral turpitude and it is concealed, it’s a ground for
annulment. In legal separation, regardless of whether it
involves moral turpitude or not, the determining factor there
is the penalty imposed, if it is 6 years and it’s not required to
be concealed.
5. Lesbianism or homosexuality of the respondent (take note
that this is the 6th ground in the book). It does not have to be
concealed. If it’s concealed and existing at the time of the
27
 marriage, it falls under fraud, ground for annulment. If it is
not concealed and existing at the time of the marriage, or it
exists after, legal separation.
6. Drug addiction or alcoholism. (This is the 5th ground in the
book) It doesn’t have to be concealed and it doesn’t have to
exist at the time of the solemnization. It’s a ground.
7. Contracting by the respondent of a subsequent bigamous
marriage. So bigamy is a ground for legal separation. And it
can also be a ground for nullity of marriage. The marriage
may take place abroad or in the Philippines. So while if the
marriage was solemnized abroad, while the party responsible
may not be prosecuted for bigamy for lack of jurisdiction, the
remedy for annulment can always be resolved.
8. Sexual infidelity or perversion. Sexual infidelity may include
adultery or concubinage. In sexual infidelity, the act
constituting sexual infidelity doesn’t have to be perverted in
form. What makes it a ground for legal separation is the fact
that it is an act of infidelity. So naturally this is done with
someone else, other than the spouse. Sexual perversion, need
not be with another. The sexual perversion may be directed
against the other because the sexual perversion need not be
constitutive of infidelity. So if the husband engages in a
perverted sexual practice and apply it to the wife, that’s still a
ground for legal separation. More so if it is applied against
another, illegal perversion. The problem with legal perversion
is, the law does not define what sexual perversion is. It would
have been different, it would have been easier if the law
defines (the following acts are considered sexual perversion)
but it’s not. With intercultural marriages, they are a product
of amalgamation of various cultures. The possibility that one
or the couples belong to different cultures, different
backgrounds, different upbringings, affect their use on certain
sexual practices. Different strokes for different folks. What
may be normal for one, may be a perversion for the other. So
there is really a problem as to the issue of whose standard to
be used in determining whether a certain practice constitutes
sexual perversion. What happens if both of the parties are
conservative? (inaudible) but the judge is pervert? The act
may appear perversion to the couple but normal to the judge.
Or the act may be normal to the husband but perversion to the
wife, or the other way around. So there is always a question
of whose standard. Is it the standard of the one complaining
or it is the standard of the one practicing? Or the standard of
the deciding? These matters remains to be clarified by the SC
and I think Congress should revisit this provision to make
this provision not susceptible to various interpretations. But
that’s really the problem if people will try to legislate
morality, this would always, this is intimately connected to
people’s sense of morale. But if you look at the literature of
the matter, there are certain practices which are really
universally recognized as perversion. Like bestial. Who
would dispute that this is perversion? Another, doing it with a
cadaver or doing it with a dead body, that’s perversion. This
is common crime to those working in funeral parlors. Those
are universally accepted. But anal sex, oral sex, using sex
toys. Perceptions of people vary, depending on the one’s
orientation, culture and upbringing. Maybe for Ms. Gonzaga
it may be as normal as breathing. But for Ms. Alegado, it may
be as horrible as doing it with a cow. So there is a problem
with this provision.
9. Then we have the attempt by the respondent against the life
of the petitioner. Ofcourse it is a ground for legal separation.
10. Abandonment of the petitioner by the respondent without
justifiable cause for more than one year.
These are the grounds for legal separation. But there are also
grounds for the dismissal of legal separation. The presence of any
or some or all of these grounds may justify the court in dismissing
the petition for legal separation. These are:
1. Condonation. Condonation takes place after the commission
of the act constituting a ground for legal separation. So if Mr.
Cid’s wife is unfaithful, slept with another man, his
compadre, but after learning of it he still accepted, take her
back with open arms, that’s condonation. Therefore, Mr. Cid
cannot anymore execute an action for legal separation.
2. Consent. Consent takes place before the act constituting legal
separation takes place. So if Ms. Gonzaga, so tolerant and
patient with his husband (inaudible) agrees that her husband
sleep with another, miss comadre. That’s consent. She cannot
be heard to complain and file an action for legal separation
because she consented to the act, constitutive of the ground
for legal separation.
3. We also have Connivance. When both spouse connive,
confederated, conspired with each other to commit the act
constituting legal separation. So if Ms. Gonzaga agreed with
her husband to do a threesome with a friend, Mr. Cid, that’s
conniving, conniving to commit adultery. Neither of them
can file for legal separation because of this ground.
4. Collusion. Collusion takes place when the couple agreed to
make up grounds for legal separation. So this contemplates of
situation where there is really no ground for legal separation
but the couple fabricated evidence to make it appear that
there is one. So for example if Ms. Gonzaga and her husband
falsely claim and made it appear that the husband is a
homosexual when he is not. That’s collusion and that’s a
ground for the dismissal of the petition
5. And then we have mutual guilt. This is consistent with the
policy that he who comes to court, must come with clean
hands. If both are guilty of any of the acts constituting a
ground for legal separation, neither of them can file. So if
Ms. Gonzaga is lesbian and the husband is homosexual,
neither of them can file legal separation against the other
because they equally, mutually guilty.
6. Then we have prescription. Prescription is 5 years from the
occurrence of the cause. Take note, there is only one
reckoning point for purposes of computing prescription in
legal separation action. Always from the time of the
occurrence of the cause. So the problem lies if the cause is
concealed. That’s why there is wisdom in the practice of
exercising due diligence, test driving. This practice is not
without its honorable purpose. You have to get to know each
other before jumping off the cliff. Know the other’s
(inaudible). That’s the message there.
Now in legal separation, there is this so called principle of cooling off
period. This is a period of 6 months from the filing of the petition
where the court is not supposed to touch the case. The court is not
supposed to keep the case in motion. So, the case will be, will lie there.
No movement, no hearing, no trial. The obvious purpose for this
cooling off period is to allow the parties enough time to reconcile with
each other. But then the question is, why is cooling off period not
required in actions for annulment or actions for nullity of marriage?
Does it mean therefore that the law does not encourage reconciliation
28
between parties in action for nullity or action for annulment of
marriage?
As I said earlier, in an action for nullity or annulment of marriage, the
issue involved relates to the very status of the marriage, whether it is
void, voidable. But legal separation has nothing to do with the status of
the marriage. It simply deals with the relationship between the parties,
how they deal with each other during the marriage. But the issue of the
validity of the marriage is never invoked. Now in our jurisdiction, it is
against public policy to compromise status. You cannot compromise
status. The status of the child, the status of the marriage, status of an
individual. It cannot be stipulated upon and therefore, it cannot be
subject of a settlement or compromise. So consistent with the policy,
the rules do not allow cooling off period in action for nullity and action
for annulment of marriage because doing so would amount to
compromising the status. That’s the way to look at it. It’s not to be
interpreted that the law encourages nullity or annulment of a marriage.
But it’s just that a matter of policy, it is beyond the parties to stipulate
whether the marriage is void or voidable. That’s just the reason why
cooling off period is not a requirement in action for nullity or in action
for annulment. But the parties can always be reconcile. If they don’t
want to go on with the petition for nullity of marriage, there’s nothing
that prevents them.
There is also a principle applicable to action for nullity, annulment and
legal separation, that no court shall render judgment on the basis of
stipulation of facts or confession, of (judgment?). In a normal civil
proceeding, like an action for collection of (inaudible) money, the
petitioner, the complainant, the creditor, if the respondent refuses to
pay the obligation, may require an action for collection of owed money
against the respondent or the defendant. That’s a collection suit. In this
petition, the plaintiff will say that on this, on that, on such a date, the
respondent or the defendant borrowed money from the plaintiff in the
amount of 100,000 and as evidence for this transaction, the defendant
executed a promissory note promising to pay the obligation in 1 year.
But despite the fact that the obligation has already matured and despite
the moneys made, the defendant refuses to pay. That is why the
plaintiff is now asking the court to issue an order effecting the
defendant to pay. That would be the allegations of the plaintiff in an
action for collection owed money. Under the rules, the defendant will
be given his day in court. So he will be required to respond, to file his
answer to the complaint. In filing his answer to the complaint, the
defendant is required to either admit the allegations if he believes that
the allegations are true or deny them if the allegations are not true. And
if the allegations are not true, he is required to come forward with the
truth. So if he admit that indeed there was () to the defendant and that
despite maturity and despite the months he refused to pay, then he may
do so in his answer, he admits all the allegations in the complaint. So
what happens if the defendant admits all the allegations in the
complaint? Meaning he confesses to the liability. And therefore the
court may now be able to render judgment based on the allegations of
the complaint which are admitted by the defendant without having to
conduct trial. Because what is there to try if there is no more issue to
resolve because the allegations are admmitted. Trial is only required if
there are issues of facts and there are issues of facts if the allegations of
the plaintiff are denied by the defense.
And so if the defendant says that it’s not true that I borrowed money
from the plaintiff, the promissory note attached to the complaint is
falsified, I never signed any promissory note. So that would be a denial
in the allegations in the complaint. And since there is now an issue, the
plaintiff says the defendant owes him something, but the defendant says
he never owed something. There is now an issue, there are two
conflicting versions of the story. So this will require trial, the parties
will now be given their respected days in court to present their evidence
so that the court will be able to listen to them and determine whose
version is true. That’s the whole proceeding in court.
Now this rule does not apply in an action to nullity of marriage,
annulment or legal separation. So if a petition for legal separation on
the ground of homosexuality, Ms. Gonzaga filed against Mr. Cid. She
alleged that Mr. Cid is a monstrous homosexual and Mr. Cid admits
under oath that true enough, he is a monstrous homosexual. Okay? So
there is no more issue of fact because the allegation is admitted. If this
were an ordinary action, the court may now summarily render judgment
because there is no more issue to resolve, no need for trial, no need to
present the evidence because the facts are established. But if this an
action to nullity, annulment or legal separation, even if the allegation is
admitted by the defendant, as in the case of Mr. Cid, the rule still
requires Ms. Gonzaga to present evidence to prove that indeed Mr. Cid
is a homosexual, evidence which is independent from Mr. Cid’s own
admission. And if Ms. Gonzaga is unable to present the required
evidence to convince the court that indeed Mr. Cid is a homosexual,
then is not unlikely that the case will be dismissed for failure of Ms.
Gonzaga to prove the case, even if Mr. Cid himself admit it. So this is a
situation where, even if the defendant tries to be honest, the court under
the rules is required not to be (inaudible) because the plaintiff is still
required to present evidence. The admission of the defendant will not
matter.
So trial is always required. This is to avoid collusion, fabrication of
evidence and suppression of evidence. This is consistent with our
policy to uphold the sanctity of marriage and promote harmony in the
family. So that’s a special rule for annulment, legal separation and
nullity. A judgment based on stipulation of facts or confession is not
allowed.
What is the effect if legal separation is granted by the court?
The effects are those enumerated under Article 63.
1. The marriage remains intact but the parties are separated in
border.
2. Accordingly, their property regime is dissolved. This is a
situation where the parties remain married to each other but
their properties are already separated, divided between them.
If one of the parties acted in bad faith, who is the guilty
spouse, his/her share in the net profits of the properties shall
be forfeited in the same manner as provided for under Article
43. Meaning it shall be forfeited in favor of the common
children, in default to the children of the guilty spouse, in
default to the innocent spouse.
3. Any donation made between the parties during the marriage,
what’s the result? Revoked, by operation of law. Designation
of one spouse as a beneficiary or insurance policy, the guilty
spouse is revoked by operation of law. The guilty spouse is
disqualified from inheriting from the innocent spouse by
intestate succession and any designation of the guilty spouse
29
 as beneficiary in the will of the innocent spouse is revoked by
operation of law.
So these are the effects. You memorize these effects and compare these
with Article 43. The 43 governs the effects if the marriage is declared
void by reason of Article 40, if the marriage is declared annulled under
Article 45 and if the subsequent marriage is extinguished by the
recording of affidavit of reappearance. The results are those mentioned
in Article 43, which are different from those mentioned in Article 63
for legal separation. Take note of the difference.
FORBIDDEN QUESTIONS:
POINTS OF CLARIFICATION:
Q: Sa katung Carino na case, if the reason for the nullity of marriage
was because of the formal or essential req, there’s no need to file for
judicial declaration of nullity, that’s for art. 40… (cut off)
A: Santiago Carino, the policeman who married twice to 2 Susans
(Nicdao and Yee). First marriage with Susan (Nicdao) was without
marriage license and without obtaining a judicial declaration of nullity
of this void marriage, he contracted a second marriage with Yee, then
he died and they are now scrambling over his death benefits. So, the
issue is who between them is entitled to the death benefits. And
necessarily, the court will have to decide between them who is the
lawful wife. The action there is for issuance claim. It’s not an action for
declaration of nullity of marriage. So this is a collateral attack of the
status of the marriage.
How did the SC decide on this? First marriage, lack of marriage
license, it renders marriage VOID. Therefore, Susan Nicdao is not the
lawful wife of Carino. She is not entitled to the death benefits. But the
fact that she is not entitled to death benefits, does not necessarily mean
that Yee is the one entitled. SC said, the marriage between Santiago
and Yee is precisely the one contemplated by Art. 40. And it says there
in Art. 40, that if the first marriage is void but without obtaining prior
declaration of nullity that party contracts a subsequent marriage, in this
case with Yee, the subsequent marriage is void and bigamous.
Therefore, Yee is not also the lawful wife of Santiago.
How do we distribute the death benefits?
Let’s go to the first. What’s the effect of the void marriage between
Carino and Nicdao. It’s a void marriage because of lack of marriage
license. What is the rule to follow for purposes of liquidation of the
assets or properties of this marriage? According to SC, this is governed
by Art. 147 of the Family Code. Their property regime is governed by
co-ownership. Under Art 147, any property acquired by either spouse is
presumed to be co-owned by both parties. It is co-owned. And
therefore, Nicdao, as a co-owner, is entitled to one-half of the death
benefits as her own being the co-owner pursuant to 147. What happens
to the other half? This will be part of the estate of Santiago Carino. So
this will be inherited by his heirs. Who are his heirs? The children of
Susan Carino and SPO4 Carino.
Susan Yee, the marriage is VOID. This is governed by art 148 because
they have legal impediments. 147 applies if the marriage is void but
there are no legal impediments between them. But 148 applies to a
situation where the marriage is void but either or both of the parties is
or are suffering a legal impediment. Obviously, the second marriage
between Yee and Carino, Carino was suffering a legal impediment
because the marriage was bigamous and therefore governed by 148.
And under 148, the rule in the liquidation of properties acquired during
the cohabitation is only the properties acquired by the parties in their
joint contribution in money, effort or industry shall belong to the co-
ownership. In this case, the SC, the death benefits were acquired by
Carino alone because it arose from the exercise of his profession. SC
could not see how Yee could have contributed to the death beneifts.
Because there was no actual contribution from the part of Yee, she does
not get anything from the death benefits.
Burial benefits went to the first wife insofar as the first half is
concerned, and the other half to their children by the former marriage
Q: Sir, what if, the second wife and Carino had children?
A: The illegimate children of Carino will have a share in the estate of
Carino. Illegitimate children are entitled to one-half of what legitimate
children are entitled to. In this case, both are illegitimate, so they will
share equal- equal shares. You will now apply the rule in succession.
Q: Sir, iclarify lang namu unsay meaning sa military operations.
Kilangan jud nay gira? Katung sa articulo MORTIS.
A: Most commentaries do not require an actual hostility or state of war.
Q: Then sa katung mere irregularities sa formal requisites, who may
file? Diba criminally, administratively liable man ang guilty? Kinsay
mu-file?
A: If it’s a crime, any party because it’s a public crime.
Q: If civil liability lang, sir?
A: Any interested party who suffers damage from the act. That’s the
requirement for civil actions. You should have a cause of action
because you either stand to benefit or suffer from the act. That’s legal
interest.
Q: Administrative?
A: Anybody. Specially if the person concerned is a public official.
Q: Katung sa grounds for legal saparation nga homosexuality or
lesbianism, does it have to be nga di sila ka comply sa ilang essential
marital obligations?
A: The mere fact of homosexuality constitutes the ground. If you want
to extend this to be a ground for psychological incapacity, then you
have to establish that this complies with juridical antecedence, gravity
and incurability and the fact that there is incapacity to perform marital
obligations.
Q: Sir,regarding sa Art. 26 paragraph 2 ba, debatable lang gihapun if
law must be proved ba of the alien national or law asa igrant ang
divorce.
30
A: Because of Bayot vs. Bayot, it is obvious that the court was referring
to the national law. Recio vs. Recio, national law. It was ony in
Obrecido that the court said that you should demonstrate its conformity
to the law allowing the divorce. But in Obrecido, it just so happened
that it was obtained in the US where the wife was alleged to be a
citizen. So there was no conflict there. But in Bayot, the wife was an
American citizen but it was obtained in Dominican Republic. But how
did the SC apply the second paragraph? The SC said: Being an
American, her laws recognize divorce therefore, the divorce she
obtained in Dominican Republic is valid. The SC never mentioned
about Dominican Republic rules. It would appear that the thinking of
the SC is that the divorce was obtained in a country other than the
country of which the alien spouse is a citizen, you prove the national
law of the alien spouse. This may not be a good law and this may be
absurd. How do you determine the validity of a judgement of the court?
It should be determined on the basis of the law of the country where the
judgement was obtained.
Q: So unsaun mana sir? Depende nlng nas facts?
A: As of now, I am not aware of any case that directly raises this
question. Because this was not the issue in Bayot but if you analyze the
situation in Bayot, it would appear that the SC is of the mind that the
national laws should be followed. It should be that national laws should
be established and not the law of the place where the judgement was
obtained. But if another case will be filed and this issue will be strictly
and directly raised, I have the feeling that the SC might revisit this
decision.
Q: Sir, iclarify lang nko katung exceptions nga gihatag katung 36, 37,
38 diba di jud ma valid ngari. Di jud ma recognize sa Philippines. If
wala na didtu, can it be considered valid or we can use the argument in
Art 17?
A: This is the situation now, if we apply the simplistic approach,
included in the exceptions, it should be valid. Why else would we
enumerate exceptions? If it’s not there, then it would be valid. So
marriage by-proxy? It’s not an exception, so it’s valid. But the danger
of this approach is there may be marriages that are repugnant to our
policy. This happens, we may have a problem with Art. 17. You look at
the case of Bank of America vs. American Realty Corp. The issue there
was whether or not our rule on prescription(?) against splitting a single
cause of action. In England, splitting a single cause of action is
allowed. Prohibited in the Philippines. The SC said this is against our
public policy. We are not going to recognize this. We apply our own. In
the case of PO(E?)A, involving a law in Bahrain, which is the law
applicable to the contract because the contract was executed in Bahrain
and was performed there. But under Emirate(?) decree, labor
complaints of that nature, prescribes in 1 year, but under our labor law,
monitary actions, claims for monitary benefits, 3 years is the
prescriptive period. SC said: this is against our policy of protection of
labor under the Consti, so we do not recognize Emirate decree, we
apply our own labor code. It depends on the sentiments of the SC. As a
rule of thumb, what is favorable to the Filipino, the SC will go there.
Q: Sir, naa lang kuy i-clarify, under Art. 40, any ground for void
marriages, for example, bisan unsa lang siya as long as mka kuha ug
judicial declaration of nullity? For example, ganahan ka mu contract ug
subsequent marriage… nag dissolve and first void marriage.. for
example, way consent? Kilangan lang gihapun ka magkuhag judicial
declaration of nullity? Any ground lang jud?
A: Any ground. So long as if it’s alleged to be void on any ground, you
should obtain court declaration confirming that it is void.
Q: Sa family home Sir ba, kung way children ang spouse?
A: That’s not covered on the rule of liquidation. That rule on family
home shall be awarded to the spuse with whom the majority of the
children will stay will not come into operation so it should now be
treated as an ordinary property. If there’s a way to physically divide it,
divide it physically. Or let 1 spouse acquire the entire the whole house
and reimburse the other with his share. Or sell the family home to a
third party and divide the proceeds.
Q: Final point of clarification sir ba, sa Ninal vs Bdayog, diba di pwede
nga naa kay legal impediments sa 5 years cohabitation nya gi-overrule
siya sa Manzano vs Sanchez, diba niaana kas imung discussion sir nga
nibalik silas Ninal. so unsa naman ang controlling ana sir?
A: Number 1, the doctrine in Ninal is really founded on solid legal
basis because it was really the issue in the case whether it can fall under
ratification of marital cohabitation. But if you look at Manzano, it’s not
even the issue there, I’m inclined to believe that it was just an obiter
dictum. It was not even the issue there. On that score alone, I’m not
even comfortable that Manzano supersedes Ninal. With more reason
now that the SC came up with Necessario confirming Ninal. So,
applying the rule that the recent is controlling. Assuming that Manzano
supersedes Ninal then Manzano must be supercede by Necessario.
Either way, Manzano ruling cannot be sustained. There is a very
persuasive argument on why Ninal should be the prevailing doctrine. It
was said that at least 5 year cohabitation should not be free from legal
impediment this would result in encouraging scandalous relationships
which is also a logical persuasive argument. The argument of Sta.
Maria is too technical. He said if you look at the essential and formal
requisites of marriage, it is enough that at the time the marriage was
solemnized, all the requisites are present. There is nothing in the law
which says that this requisite, legal capacity, must be present at least 5
years backward. That’s too technical an argument. I have no doubt in
my mind that Ninal is the controlling doctrine.
Q: Sir, what if we’re in a situation where we should defend … (di na
maklaru)
A: You take either of the position. You just have to defend. If it comes
out the bar, you look at the facts. If the fact coincides same with the
facts in Ninal, by all means, apply Ninal.
Q: Something about Art. 40 ang question… (nagkalayu na akong phone
ani hehe)
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Victoria Harillo vs People of the Ph. Article 40 is a rule of procedure
and therefore should be given retroactive effect. Settled in the case of
Atienza vs. Brillantes. You read the case of Victoria Harillo vs. People
of the Ph, the motion for reconsideration and not the original.

GOOD LUCK!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

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