Alm1clm1 Mod5 WK5 2629aug

INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29 August
2019] 1
MODULE 5
MARRIAGE
WEEK 5 – 26 & 29 August 2019
CONCEPT AND NATURE OF MARRIAGE
 Effectivity of the Family Code. – Executive Order No.

209, otherwise known as the Family Code of the Philippines, took effect
on August 3, 1988, one year after publication in a newspaper of general
circulation.
 Marriage defined. – Article 1 of the Family Code defines

marriage, as follows:
“ARTICLE 1. – Marriage is a special contract of

permanent union between a man and a woman entered
into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and
not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code. (52a)”
 Constitutional provisions on marriage. – Article XV of the

Constitution provides:
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“Sec. 1. – The State recognizes the Filipino family

as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total
development.
“Sec. 2. Marriage, as an inviolable social

institution, is the foundation of the family and shall be
protected by the State.”
 Marriage is a special contract. – Marriage is a special

contract for at least two reasons:
(a) Unlike in ordinary contracts, the parties are powerless to

terminate it; and
(b) The rights and duties of the parties, as fixed by law, may not
be increased or diminished by agreement of the parties.
 Marriage is a permanent union. – Marriage is a lifelong

relationship. In other words, the status of marriage ordinarily continues
during the joint lives of the parties or until annulment or declaration of
nullity of such marriage.
 The cohabitation of a spouse with another person, even

for a long period, does not sever the tie of a subsisting previous marriage.
Once a valid marriage is established, it is deemed to continue until proof
that it has been legally ended is presented . ( Arbulario vs. CA
and Colinco, G.R. No. 129163, 22 April 2003, 401 SCRA
360.)
 Purpose of marriage. – The purpose of marriage is to

establish conjugal and family life. This includes companionship,
procreation and raising children to become responsible members of
society.
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 Parties to marriage. – In a real sense, there are three

parties to every marriage: two willing spouses, and an approving State.
 Our family law is based on the policy that marriage is not

a mere contract, but a social institution in which the State is vitally
interested. Marriage in this jurisdiction is not only a civil contract, but it is
a new relation, an institution in the maintenance of which the public is
deeply interested. This interest proceeds from the constitutional mandate
that the State recognizes the sanctity of family life and of affording
protection to the family as a basic “autonomous social institution.”
Specifically, the Constitution considers marriage as an “inviolable social
institution,” and is “the foundation of family life which shall be protected by
the State.” Our Constitution is so committed to the policy of strengthening
the family as a basic social institution because the state can find no
stronger anchor than on good solid and happy families. The break-up of
families weakens our social and moral fabric and, hence, their
preservation is not the concern alone of the family members.
 Marriage settlements or pre-nuptial agreements. – There

is only one aspect of marriage that can be the subject of an agreement
between the contracting parties, that is – that the marriage settlements
may fix the property relations of the spouses during the marriage. But
even this freedom “to fix the property relations during the marriage” is not
absolute as the same must be exercised “within the limits provided by the
(Family) Code.”
REQUISITES OF MARRIAGE
 Essential requisites of marriage. – Article 2 of the Family

Code provides that:
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ARTICLE. 2. – No marriage shall be valid, unless

these essential requisites are present:
(1) Legal capacity of the contracting parties who
must be a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer. (53a)
 Legal capacity. – One has legal capacity to marry if

he/she:
(a) is 18 years old or over (Art. 5, FC);
(b) has no subsisting prior marriage (Art. 35, FC);
(c) is not prohibited by law to marry the other by reason
of the relationship being incestuous or contrary to
public policy ((Arts. 37 & 38, FC)
(d) is not of the same sex as the other. (Art. 2, FC)
 Consent. – Both of the parties must give consent to the

marriage. It is their consent, not the consent of the parents that is referred
to in Article 2(1) of the Family Code.
 Free consent connotes that the contracting parties
willingly and deliberately entered into the marriage. It signifies that, at the
time of the marriage ceremony, they were capable of intelligently
understanding the nature and consequences of the act.
 The free consent must be given in the presence of the
solemnizing officer. Together with the mandatory requirement under
Article 6 of the Family Code that the contracting parties must be
personally present during the solemnization of marriage, this requirement
prohibits proxy-marriages in the Philippines.
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 Effect of absence of any of the essential requisites. – The

absence of any of the essential requisites of marriage renders the contract
of marriage void ab initio except as may be provided in Section 35(2)
of the Family Code.
 Total absence of consent to the marriage by any of the
contracting parties must be distinguished from one where consent is
present but vitiated. The former results into a void ab initio marriage,
while the latter into a voidable marriage.
 Effect of defect in any of the essential requisites (Art. 4,

FC). – A defect in any of the essential requisites of marriage renders the
marriage voidable as provided in Article 45 of the Family Code.
 When parental consent to the marriage is required. – If

either or both contracting parties are between the ages of 18 and 21, the
consent of the father, mother, surviving parent or guardian, or persons
having legal charge of them, in that order, is necessary. (Art. 14,
FC.)
 How consent manifested. – To prove compliance with

the requisite parental consent:
(a) The parents or guardians may appear personally before the

proper local civil registrar and accomplish the written consent
before him; or
(b) If the parents or guardians do not appear personally before
the proper local civil registrar, their parental consent may be
in the form of an affidavit made in the presence of two
witnesses and attested before any official authorized by law
to administer oaths.
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This personal manifestation shall be recorded in both

applications for marriage license, and the affidavit, if one is executed
instead, shall be attached to such applications.
 Tenor of consent. – The parental consent must be for

the child to marry a “specific” person; it cannot be consent to marry
anyone.
 Effect of absence of parental consent. – If the

marriage is solemnized without parental consent, the marriage is voidable.
Formal requisites of marriage. – Article 3 of the Family

Code provides that:
“ARTICLE. 3. – The formal requisites of marriage

are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
provided for in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with
the appearance of the contracting parties before the
solemnizing officer and their personal declaration that
they take each other as husband and wife in the presence
of not less than two witnesses of legal age. (53a, 55a)”
 Authorized solemnizers of marriage. – The authority

given to specified people to solemnize marriages is provided for in Article
7.
“ARTICLE 7. – Marriage may be solemnized by:

(1) Any incumbent member of the judiciary within
the court’s jurisdiction;
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(2) Any priest, rabbi, imam, or minister of any

church or religious sect and registered with the civil
registrar general, acting within the limits of the written
authority granted him by his church or religious sect and
provided that at least one of the contracting parties
belongs to the solemnizing officer’s church or religious
sect;
(3) Any ship captain or airplane chief only in the
cases mentioned in Article 31;
(4) Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter, during
a military operation, likewise only in the cases
mentioned in Article 32; or
(5) Any consul-general, consul or vice-consul in
the case provided in Article 10. (56a)”
 Members of the judiciary as solemnizing officers. –

Judges can solemnize marriage only within their courts’ jurisdiction.
Moreover, they must be incumbent and not retired judges. If a marriage is
solemnized by a judge of the court beyond his jurisdiction, there is
absence of a formal requisite in such a marriage, namely the authority of
the solemnizing officer. Hence, the marriage is void unless either of the
parties believed in good faith that such solemnizing officer has authority to
conduct such marriage. (Arts. 7[2] & 35[2], FC.)
 Marriages solemnized by priests or ministers of

religious sects. – For marriages solemnized by priests or ministers of
religious sects, it is required that at least one of the contracting parties
belongs to the solemnizing officers’ church or religious sect.
 Articulo mortis. – Ship or airplane captains, and

military commanders, solemnize only marriage in articulo mortis in areas
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specified by law. (Arts. 7[3] & [4], in relation to Arts. 31 & 32,
FC.)
 Consuls as solemnizing officers. – Marriages between

Filipino citizens abroad are to be celebrated by a consul-general, consul
or vice consul. (Arts. 7[5] & 10, FC.)
 Mayors as solemnizing officers. – Under the Local

Government Code, only mayors are authorized to solemnize marriages.
 A valid marriage license. – Without a marriage license,

the marriage is void.
 Place of issue – The contracting parties should file an
application for a marriage license with the local civil registrar of the city or
municipality where either of them resides. (Art. 9, FC.)
 Lifespan of license – The marriage license is valid

only within the Philippines and not abroad. It is good for 120 days from
the date of issue. The date of the signing of the local civil registrar of the
marriage license is the date of the issue. From the date of issue, it should
be claimed by the parties. If it is not claimed and therefore not used within
120 days, it shall automatically become ineffective. (Art. 20, FC.)
 Personal appearance in a marriage ceremony. – The

Family Code does not generally prescribe any particular form of a
marriage ceremony. However, the minimum requirement imposed by law
is that the contracting parties appear personally before the solemnizing
officer and declare that they take each other as husband and wife in the
presence of at least two witnesses of legal age.
 Proxy marriages – Since it is imperative that the

parties appear before the solemnizing officer in a ceremony, there cannot
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be a proxy marriage. A proxy marriage is void by reason of absence of a

valid ceremony.
 Witnesses – It is necessary that the ceremony be

witnessed by at least two persons of legal age. If there is only one
witness, the ceremony is merely irregular, and will not affect the validity of
the marriage.
 Marriage certificate – The marriage certificate has to

be signed by the persons required by law to sign it. In case of a marriage
in articulo mortis (at the point of death), it is enough that one of the
witnesses write the name of the party concerned on the certificate. The
failure of one or all of the persons who are supposed to sign the certificate
or of any of the witnesses to write the name of the party will not invalidate
the marriage. A certificate is neither an essential nor formal requisite of
marriage, but is merely evidence of the fact of marriage. Such fact may
be proved by other forms of evidence.
VOID MARRIAGES
 Marriages void from the beginning for lack of any of

the requisites provided by law for its validity. – Article 35 of the
Family Code provides that:
“ARTICLE 35. – The following marriages shall be

void from the beginning:
(1) Those contracted by any party below eighteen

years of age even with the consent of parents or
guardians;
(2) Those solemnized by any person not legally
authorized to perform marriages unless such marriages
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were contracted with either or both parties believing in

good faith that the solemnizing officer had the legal
authority to do so;
(3) Those solemnized without license, except
those covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not
falling under Article 41;
(5) Those contracted through mistake of one
contracting party as to the identity of the other; and
(6) Those subsequent marriages that are void
under Article 53.”
 Marriages void because of psychological incapacity. –

Article 36 of the Family Code provides that:
ART. 36. – A marriage contracted by any party

who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227
dated July 17, 1987)
 Marriages void because of incestuous relationship. –

Article 37 of the Family Code provides that:
ARTICLE 37. – Marriages between the following

are incestuous and void from the beginning, whether the
relationship between the parties be legitimate or
illegitimate:
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(1) Between ascendants and descendants of any

degree; and
(2) Between brothers and sisters, whether of the
full or half blood.
 Marriages void for reasons of public policy. – Article 38

of the Family Code provides that:
ART. 38. – The following marriages shall be void

from the beginning for reasons of public policy:
(1) Between collateral blood relatives, whether

legitimate or illegitimate, up to the fourth civil
degree;
(2) Between step-parents and step-children;
(3) Between parents-in law and children-in-law;
(4) Between the adopting parent and the adopted
child;
(5) Between the surviving spouse of the adopting
parent and the adopted child;
(6) Between the surviving spouse of the adopted
child and the adopter;
(7) Between an adopted child and a legitimate
child of the adopter;
(8) Between adopted children of the same adopter;
and
(9) Between parties where one, with the intention
to marry the other, killed that other person’s
spouse, or his or her own spouse. (82a)
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 Marriages void for failure to obtain a judicial

declaration of nullity of a previous marriage. – Article 40 of the
Family Code provides that:
ART. 40. – The absolute nullity of a previous

marriage may be invoked for purposes of remarriage on
the basis solely of a final judgment declaring such
previous marriage void. (n)
 What Article 40 means – Stated otherwise, if a party who

is previously married wishes to contract a subsequent marriage during the
lifetime of the other spouse, he or she has to obtain first a judicial decree
declaring the previous marriage void, before he or she could contract said
subsequent marriage. No matter how obvious, manifest, or patent the
absence of a formal or essential element to a marriage is, the intervention
of the courts must always be resorted to because the parties are not free
to determine for themselves the validity or invalidity of their marriage.
 Effect of failure to secure prior final judgment – When a

party enters into another marriage without first securing the declaration of
the nullity of his or her previous marriage, the subsequent marriage shall
be void. In addition, a party may be found guilty of the crime of bigamy or
concubinage for having entered into the second or subsequent marriage.
VOIDABLE MARRIAGES
 Exclusivity of grounds for annulment. – Under the Family

Code, an annullable marriage is the same as a voidable marriage. Unlike
a void marriage which is invalid from the beginning, an annullable or
voidable marriage is considered valid up to the time it is terminated.
Consequently, grounds for annulment are only those specified by law.
Any ground not provided by law cannot be invoked to annul a marriage.
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The exclusivity of the grounds is in line with the policy of the state to
enhance the permanence of marriage. The fundamental policy of the
state, which regards marriage as indissoluble and sacred, being the
foundation upon which society rests, is to be cautious and strict in granting
annulment of marriage.
 Factors considered in annulment. – In order that the

annulment of a voidable marriage may be decreed, it is necessary to
consider not only the cause, whether one exists or not, but the person
who files the petition, whether he is the proper party, and also the time of
the filing of the petition, if it is done within the period of filing provided by
law. In addition, whether the defect has been cured or not should also be
taken into account.
 Grounds for annulment. – Articles 45 and 46 of the Family

Code enumerate the causes which will give rise to an action for annulment
of marriage, to wit:
“ARTICLE 45. – A marriage may be annulled for

any of the following causes, existing at the time of the
marriage:
(1) That the party in whose behalf it is sought to
have the marriage annulled was eighteen years of age or
over but below twenty-one, and the marriage was
solemnized without the consent of the parents, guardians
or person having substitute parental authority over the
party, in that order, unless after attaining the age of
twenty-one, such party freely cohabited with the other
and both lived together as husband and wife;
(2) That either party was of unsound mind, unless
such party after coming to reason, freely cohabited with
the other as husband and wife;
(3) That the consent of either party was obtained
by fraud, unless such party afterwards, with full
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knowledge of the facts constituting the fraud, freely

cohabited with the other as husband and wife;
(4) That the consent of either party was obtained
by force, intimidation or undue influence, unless the
same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-
transmissible disease found to be serious and appears to
be incurable. (85a)
“ARTICLE 46. – Any of the following

circumstances shall constitute fraud referred to in
Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by
final judgment of the other party of a crime involving
moral turpitude;
(2) Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man other
than her husband;
(3) Concealment of a sexually transmissible
disease, regardless of its nature, existing at the time of
the marriage; or
(4) Concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism existing at the
time of the marriage.
No other misrepresentation or deceit as to
character, health, rank, fortune or chastity shall
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constitute such fraud as will give grounds for action for

the annulment of marriage. (86a)
“ARTICLE 47. – The action for annulment of

marriage must be filed by the following persons and
within the periods indicated herein:
(1) For causes mentioned in Number 1 of Article
45, by the party whose parent or guardian did not give
his or her consent, within five years after attaining the
age of twenty-one; or by the parent or guardian or
person having legal charge of the minor, at any time
before such party reaches the age of twenty-one;
45, by the sane spouse, who had no knowledge of the
other’s insanity; or by any relative, guardian or person
having legal charge of the insane, at any time before the
death of either party; or by the insane spouse during a
lucid interval or after regaining sanity;
45, by the injured party, within five years after the
discovery of the fraud;
45, by the injured party, within five years from the time
the force, intimidation or undue influence disappeared or
ceased;
(5) For causes mentioned in Numbers 5 and 6 of
Article 45, by the injured party, within five years after
the marriage.
 Lack of parental consent. – The law considers persons of

the age of at least 18 years and below 21 years as not possessing that
degree of maturity to be able to comprehend thoroughly the
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consequences and serious responsibilities of marital relations; hence,

before marriage, he or she must obtain parental consent.
 Who may file annulment. – If the ground for annulment is

lack of parental consent, the action for annulment may be filed either:
(a) By the person whose consent is required under Article 14 of the

Family Code, but only in cases where the party whose parent did not
give consent has not yet reached the age of 21; OR
(b) By the party whose parent did not give consent, but only in cases
where such party has already reached the age of 21. (Art. 47[1],
FC.)
 Unsoundness of mind. – One’s mind is unsound if it is

afflicted with a defect or disease that makes the person incapable of
making an intelligent consent. It may be natural, like insanity, or artificial
like intoxication.
 Consent through fraud. – The specific forms of fraud

employed in obtaining consent that will constitute as a defect rendering
the marriage voidable are enumerated in Article 46.
 Consent through force, intimidation or undue influence.

–
 There is force or violence when in order to wrest consent,

serious or irresistible force is employed. This contemplates a situation
where actual physical force is inflicted on a contracting party to wrest his
consent to the marriage. (Art. 1335, NCC.)
 There is intimidation when one of the contracting parties

is compelled by a reasonable and well-grounded fear of an imminent and
grave evil upon his person or property, or upon the person or property of
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his spouse, descendants, or ascendants to give his consent. (Art.

1335, NCC.)
 There is undue influence when a person takes improper
advantage of his power over the will of another depriving the latter of a
reasonable freedom of choice. (Art. 1337, NCC.)
 Physical incapability to consummate the marriage or

impotency. – Impotency is the physical inability to have sexual
intercourse. It imports a total want of power of copulation. It is not
synonymous with sterility. Sterility refers to the inability to procreate,
whereas, impotence refers to the physical inability to perform the act of
sexual intercourse. Only impotency constitutes a ground for annulment of
marriage.
 Sexually transmissible disease (STD). –

 Concealment of a sexually transmissible disease (whether
serious or not), at the time of the celebration of the marriage, constitutes
fraud under Article 45(3) in relation to Article 46(3) of the Family
Code.
 If the STD is not concealed, it can still be a ground for

annulment of marriage but, to successfully invoke this ground, the STD
(unlike in the case of fraud), must be found to be serious and incurable.
[Article 45(6), FC.]
CAPACITY AND RIGHT TO REMARRY

UNDER
ARTICLE 26 OF THE FAMILY CODE
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“ARTICLE 26. – All marriages solemnized outside

the Philippines, in accordance with the laws in force in
the country where they were solemnized, and valid there
as such, shall also be valid in this country, except those
prohibited under Articles 35(1), (4), (5) and (6), 36, 37
and 38. (17a)
Where a marriage between a Filipino citizen and a
foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating
him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended
by Executive Order 227)”
 Validity of marriage solemnized abroad. – Generally,

marriages solemnized abroad that are valid in the country where they
were solemnized are also valid in the Philippines – “valid there, valid
here”.
 Mixed Marriages under Paragraph 2 of Article 26. – In

marriages between a Filipino and an alien, a divorce obtained by the alien
spouse abroad capacitating him/her to remarry will capacitate the Filipino
spouse to remarry under Philippine law.
 It is only in this instance where a divorce obtained abroad
involving a Filipino is recognized in the Philippines.
 In Republic vs. Manalo (G.R. No. 221029, 24

April 2018), the Supreme Court ruled that even if it is the Filipino
spouse who validly obtains the divorce decree abroad, he or she shall
likewise become capacitated to remarry under Philippine law, in the same
manner that the alien spouse has now, by virtue of such decree, also
become capacitated to remarry. It further ratiocinated that the limitation of
the provisions of Article 26, paragraph 2 only to a foreign divorce decree
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initiated by the alien spouse is unreasonable as it is based on superficial,

arbitrary, and whimsical classification.
 The second paragraph of Article 26 also applies to a

situation where originally, at the time of the marriage ceremony, both
parties were Filipinos, but at the time of the divorce, the petitioner was
already a citizen of a foreign country that allows absolute divorce. For
purposes of Article 26 therefore, the determinative point when the
foreigner who procured the divorce should be a foreigner is at the time of
the divorce and not at the time of the marriage ceremony (Republic
vs. Orbecido III, G.R. No. 154380, October 5, 2005, 472
SCRA 114).
 ILLUSTRATIVE EXAMPLES:
 John, an American citizen married Maria, a Filipino citizen.

The marriage was validly celebrated in New York. Later, John obtained a
divorce decree against Maria in New York. John subsequently married
Chloe. Thereafter, Maria married her childhood sweetheart Pedro in the
Philippines. Under Article 26, paragraph 2, the ensuing marriage of Maria
to Pedro is valid. The same rule will apply if it was Maria who obtained a
divorce decree against John in New York where divorce is recognized.
 Luis and Celia, both Filipinos, married in the United States.

Not long after, Luis divorced Celia in the U.S. Thereafter, Celia married
Juanito. The marriage of Celia to Juanito is void for being bigamous. The
divorce obtained by Luis is not recognized in the Philippines. Before the
eyes of the Philippine law, Luis and Celia are still married to each other.
Article 26, paragraph 2 requires that the Filipino is married to a foreigner,
and a divorce decree is subsequently obtained by either of the spouses.
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 Igme and Dalisay are both Filipinos. They got married in the
Philippines. Igme went to the U.S. and became an American citizen by
naturalization. Thereafter, Igme divorced Dalisay, and married Bituin.
(a) Is the marriage between Igme and Bituin valid? YES,

the marriage of Igme and Bituin is valid. At the time Igme married
Bituin, Igme was no longer a Filipino citizen. Article 15 of the New
Civil Code is no longer applicable to him. The reckoning point is the
citizenship of Igme at the time a valid divorce was obtained by him
and not his citizenship at the time of the celebration of the marriage.
(b) Can Dalisay validly remarry another party? YES.

Dalisay, the divorced Filipino spouse can validly remarry having been
set free by the valid divorce obtained by Igme at a time when he was
already a foreigner - a naturalized American citizen.
LEGAL SEPARATION
 Nature of legal separation. – In the Philippines, we do not

have absolute divorce (divorce a vinculo matrimonii). We only have
relative divorce or legal separation (divorce a mensa et thoro). In absolute
divorce, the marriage is dissolved and the parties can remarry. In relative
divorce or legal separation, however, the marriage bond is not dissolved
and the parties are not entitled to remarry. In effect, the parties are
merely separated from bed and board.
 GROUNDS. – There are ten grounds for legal separation

under Article 55 of the Family Code, to wit:
“ARTICLE 55. – A petition for legal separation

may be filed on any of the following grounds:
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(1) Repeated physical violence or grossly abusive

conduct directed against the petitioner, a common child,
or a child of the petitioner;
(2) Physical violence or moral pressure to compel
the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner,
to engage in prostitution, or connivance in such
corruption or inducement;
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the
respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of
the petitioner; or
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
For purposes of this Article, the term “child” shall
include a child by nature or by adoption. (97a)”
 Requisites. –
(a) Time constraint. – An action for legal separation shall be
filed within five (5) years from the time of the occurrence of the cause.
(Art. 57, FC.)
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(b) Cooling off period. – An action for legal separation shall

in no case be tried before six (6) months shall have elapsed since the
filing of the petition. (Art. 58, FC.)
(c) Reconciliation. – In every case, no legal separation may

be decreed unless the court has taken steps toward the reconciliation of
the spouses and is fully satisfied, despite such efforts, that reconciliation is
highly improbably. (Art. 59, FC.)
(d) Decree shall not be based on stipulation of facts. – No

decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment. In any case, the court shall order the prosecuting
attorney or fiscal assigned to it to take steps to prevent collusion between
the parties, and to take care that the evidence is not fabricated or
suppressed. (Art. 60, FC.)
 Effects of the decree of legal separation (Art. 60, FC).

–
(a) On marriage bonds. – The spouses shall be entitled to

live separately from each other, but the marriage bonds shall not be
severed.
(b) On property relations. – The absolute community or the

conjugal partnership shall be dissolved and liquidated.
(c) On custody of children. – The custody of the minor

children shall be awarded to the innocent spouse, subject to the
provisions of Article 213 of the Family Code.
(d) On right to succession. – The guilty spouse shall be

disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the guilty spouse made in
the will of the innocent spouse shall be revoked by operation of law.
2019] 23
RIGHTS AND OBLIGATIONS

BETWEEN HUSBAND AND WIFE
 To live together (Art. 68, FC). –

 This is both a duty and a right. This includes cohabitation
or consortium and sexual intercourse. If there is, however, a legal
separation, there is no more duty to have sexual intercourse.
 Under R.A. No. 8353, otherwise known as the Anti-Rape
Law of 1997, a husband may be held liable for the rape of his wife.
However, the subsequent forgiveness by the wife shall extinguish the
criminal liability, except when the marriage is void ab initio.
 The husband and the wife shall fix the family domicile. In
case of disagreement, the court shall decide. (Art. 69, FC)
 The wife may establish a separate domicile in the
following cases:
(a) If the husband maltreats her.
(b) If the husband grossly insults her.
(c) If the husband is immoderate or barbaric in his demands for sexual
intercourse.
(d) If the husband continuously indulges in illicit relations with another
even if the concubine or concubines are not brought into the marital
abode.
(e) If the husband refuses to support the family, or continuously gambles
(f) If the husband insists on living with his own parents.
(g) If she is virtually driven off their home by her husband and she is
threatened with violence if she should return.
2019] 24
 To observe mutual respect and fidelity. – T

 Mutual respect simply means that each shall respect the
other. They can disagree or reprimand each other, but it is unlawful for
them to inflict force or physical harm, EXCEPT when either of them
SURPRISES the other in the act of committing sexual intercourse with
another person. Even under this situation, Article 247 of the Revised
Penal Code imposes a penalty of destierro to the guilty spouse.
 Infidelity, on the other hand, is a ground for legal
separation or disinheritance under Articles 55(8) and 63(4) of the Family
Code.
 Adultery – Adultery is a crime committed by any married
woman who shall have sexual intercourse with a man not her husband;
and by a man who has carnal knowledge of her, knowing her to be
married, even if the marriage is subsequently declared void (Art. 333,
RPC).
 Concubinage – Any husband who shall keep a mistress in
the conjugal dwelling or shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit with her
in any other place, shall be punished by prision correctional in its minimum
and maximum periods (Art. 334, RPC).
 Marital privilege rule. – A husband cannot be examined
for or against his wife without her consent; nor a wife for or against her
husband without his consent, except in a civil case by one against the
other, or in a criminal case for a crime committed by and against the other.
(Sec. 20[b], Rule 130.)
 Marital communication rule. – The husband or the wife,
during the marriage or afterwards, cannot be examined without the
consent of the other as to any communication received in confidence by
one from the other during the marriage. (Sec. 21[a], Rule 130.)
2019] 25
 To render mutual help and support. – T

 A husband does not marry his wife to make the latter his
slave and vice-versa. They should help and support each other within
their available resources and see to it that they assist each other in the
rearing of their children for civil efficiency and development of moral
character.
 The spouses are jointly responsible for the support of the
family (Art. 70, FC).
 Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the other. The
latter may object only on valid, serious and moral grounds. In case of
disagreement, the court shall decide (Art. 73, FC).
PROPERTY RELATIONS
BETWEEN HUSBAND AND WIFE
 Property regimes named in the Family Code (Art. 75,

FC). –
(a) Absolute community of property. – ln absolute

community of property, all properties owned by the spouses at the time of
the celebration of the marriage, and those acquired during the existence
of the marriage, form part of the community property. (Art. 91, FC.)
(b) Conjugal partnership of gains. – Unlike in the regime of

absolute community, the property of either spouse that he or she brings to
the marriage remains as his or her exclusive property in the regime of
2019] 26
conjugal partnership of gains, although the fruits and income thereof are
considered conjugal partnership property. All properties, however,
acquired by either or both spouses after the celebration of the marriage
belong to the partnership property. (Art. 106, FC.)
(c) Separation of property. – ln separation of property, the

properties owned by the spouses at the time of the celebration of the
marriage and those earned by them during the marriage, and the fruits
thereof, are exclusive properties of each of the spouses.
 Default property regime (Art. 75, FC). – Prior to the

effectivity of the Family Code if the spouses marry in the absence of a
marriage settlement, or when the same is void, the system of conjugal
partnership of gains shall govern the property relations between husband
and wife. (Art. 119, NCC.) Under the Family Code in the absence of
a marriage settlement, or when the regime agreed upon is void, the
system of absolute community of property governs the property relations
of the spouses. (Art. 75, FC.) Hence, for spouses who got married on
August 3, 1988 (the effectivity date of the Family Code) or thereafter
without any marriage settlement, their property relations shall be governed
by a regime of absolute community. However, for spouses who got
married without a marriage settlement prior to August 3, 1988 but after
August 30, 1950 (effectivity date of the New Civil Code), their property
relations shall be governed by a regime of conjugal partnership of gains.

The discussion below is given to help you understand better

Articles 37(1) & 38(1) of the Family Code:
 How Degrees of Generation Are Computed. –

(1) IN THE DIRECT LINE - In counting the degrees in the direct line,
ascent is made to the common ancestor. Count ALL who are
included, then minus one.
2019] 27
 Hence, the child is one degree removed from the parent, two
degrees away from the grandparent, and three degrees away from the
great grandparent.
GREAT GREAT
GRANDFATHER  Four Degrees

GREAT GRANDFATHER  Three Degrees

GRANDFATHER  Two Degrees

FATHER  One Degree

CHILD
(2) IN THE COLLATERAL LINE - In counting the degrees in the

collateral line, go up to the nearest common ancestor, then go down
minus one.
 In the illustration below:
1. Bayani and Bonifacio are the sons of Corazon.

2. Andres is the son of Bayani.
3. Andres has 3 children – Ambrosio, Angelo and Amanda.
4. Ambrosio has 2 children – Carmelo and Cornelio.
5. Amanda has 2 children – Armando and Cristy.
6. Sigmundo is the son of Carmela, and Sonia is the daughter of
Sigmundo.
2019] 28
Corazon

Bayani Bonifacio

Andres

Ambrosio Angelo Amanda
 
Carmela Cornelio Armando Cristy
   
Sigmundo Vilma Lorna Belen
   
Sonia Violet Lorelei Beverly
 In the illustration above:

1. Amanda is the ascendant of Lorelei within the third (3rd) civil degree.
2. Beverly is the descendant of Corazon within the sixth (6th) civil
degree.
3. Lorna is a collateral blood relative of Cornelio within the fifth (5th) civil
degree.
4. Sonia is a collateral blood relative of Beverly within the eighth (8th)
civil degree.
5. Carmela is a collateral blood relative of Angelo within the third (3rd)
civil degree.
6. Carmela is a collateral blood relative of Bonifacio within the fifth (5th)
civil degree.
2019] 29
7. Armando is a collateral blood relative of Vilma within the fifth (5th) civil
degree.
8. Violet is a collateral blood relative of Angelo within the fifth (5th) civil
degree.
9. Vilma is a collateral blood relative of Beverly within the seventh (7th)
civil degree.
10. Sonia is a collateral blood relative of Armando within the sixth (6th)
civil degree.
* * * END * * *
 MEMORIZE BY HEART THE FOLLOWING PROVISIONS

OF THE FAMILY CODE: ARTICLES 1, 2, 3, 7, 35, 36, 37, 38,
45, 46, & 55.
 READ THE FOLLOWING CASES IN THEIR

ORIGINAL TEXT:
 Arbulario vs. CA and Colinco, G.R. No. 129163, 22 April

2003, 401 SCRA 360.
 Republic vs. Orbecido III, G.R. No. 154380, October 5,
2005, 472 SCRA 114.
 Republic vs. Manalo, G.R. No. 221029, 24 April 2018.
HAPPY READING & LEARNING! 

2019] 30
SOURCES of NOTES:
The discussions outlined in this module have been

collectively lifted from the cases cited and
commentaries made by the authors in the references
cited below:
1. Virgilio P. Alconera. Law, Persons and Family Relations (Quezon

City: Central Book Supply, Inc., 2010).
2. Virgilio B. Gesmundo. Jurisprudence and Comments on Persons
and Family Relations (Manila: Rex Book Store, 2014).
3. Elmer T. Rabuya. The Law on Persons and Family Relations
(Manila: Rex Book Store, Inc., 2016).
4. Melencio S. Sta. Maria, Jr. Persons and Family Relations Law
(Manila: Rex Book Store, Inc., 2015).
5. Rolando A. Suarez. Introduction to Law (Manila: Rex Book
Store, Inc., 2017).
The dictionary is the only place that success comes before work.
Work is the key to success,
and hard work can help you accomplish anything.
Vince Lombardi, Jr.

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INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29 August

CONCEPT AND NATURE OF MARRIAGE

 Effectivity of the Family Code. – Executive Order No.

 Marriage defined. – Article 1 of the Family Code defines

“ARTICLE 1. – Marriage is a special contract of

 Constitutional provisions on marriage. – Article XV of the

“Sec. 1. – The State recognizes the Filipino family

“Sec. 2. Marriage, as an inviolable social

 Marriage is a special contract. – Marriage is a special

(a) Unlike in ordinary contracts, the parties are powerless to

 Marriage is a permanent union. – Marriage is a lifelong

 The cohabitation of a spouse with another person, even

 Purpose of marriage. – The purpose of marriage is to

 Parties to marriage. – In a real sense, there are three

 Our family law is based on the policy that marriage is not

 Marriage settlements or pre-nuptial agreements. – There

 Essential requisites of marriage. – Article 2 of the Family

ARTICLE. 2. – No marriage shall be valid, unless

 Legal capacity. – One has legal capacity to marry if

 Consent. – Both of the parties must give consent to the

 Effect of absence of any of the essential requisites. – The

 Effect of defect in any of the essential requisites (Art. 4,

 When parental consent to the marriage is required. – If

 How consent manifested. – To prove compliance with

(a) The parents or guardians may appear personally before the

This personal manifestation shall be recorded in both

 Tenor of consent. – The parental consent must be for

 Effect of absence of parental consent. – If the

Formal requisites of marriage. – Article 3 of the Family

“ARTICLE. 3. – The formal requisites of marriage

 Authorized solemnizers of marriage. – The authority

“ARTICLE 7. – Marriage may be solemnized by:

(2) Any priest, rabbi, imam, or minister of any

 Members of the judiciary as solemnizing officers. –

 Marriages solemnized by priests or ministers of

 Articulo mortis. – Ship or airplane captains, and

 Consuls as solemnizing officers. – Marriages between

 Mayors as solemnizing officers. – Under the Local

 A valid marriage license. – Without a marriage license,

 Lifespan of license – The marriage license is valid

 Personal appearance in a marriage ceremony. – The

 Proxy marriages – Since it is imperative that the

be a proxy marriage. A proxy marriage is void by reason of absence of a

 Witnesses – It is necessary that the ceremony be

 Marriage certificate – The marriage certificate has to

 Marriages void from the beginning for lack of any of

“ARTICLE 35. – The following marriages shall be

(1) Those contracted by any party below eighteen

were contracted with either or both parties believing in

 Marriages void because of psychological incapacity. –

ART. 36. – A marriage contracted by any party

 Marriages void because of incestuous relationship. –

ARTICLE 37. – Marriages between the following

(1) Between ascendants and descendants of any

 Marriages void for reasons of public policy. – Article 38

ART. 38. – The following marriages shall be void

(1) Between collateral blood relatives, whether

 Marriages void for failure to obtain a judicial

ART. 40. – The absolute nullity of a previous

 What Article 40 means – Stated otherwise, if a party who

 Effect of failure to secure prior final judgment – When a

 Exclusivity of grounds for annulment. – Under the Family

 Factors considered in annulment. – In order that the