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
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within the limits provided by this Code.

(52a)”
 Constitutional provisions on marriage. –

Article XV of the Constitution provides:
“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.
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 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.
 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
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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:
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:
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(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.
 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.
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 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)”
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 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;
(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
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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 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
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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 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
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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 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;
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(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
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(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)
 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
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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. 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
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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 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
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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
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lesbianism existing at the time of the

marriage.
No other misrepresentation or deceit
as to character, health, rank, fortune or
chastity shall constitute such fraud as will
give grounds for action for the annulment
of marriage. (86a)
“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;
Number 2 of Article 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;
Number 3 of Article 45, by the injured
party, within five years after the
discovery of the fraud;
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Number 4 of Article 45, by the injured
party, within five years from the time the
force, intimidation or undue influence
disappeared or ceased;
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 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
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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
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,
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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
“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)
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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 initiated by the alien spouse is
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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
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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.
 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,
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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:
(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;
– 26 & 29 August 2019] 26
(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.)
(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
– 26 & 29 August 2019] 27
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.
RIGHTS AND OBLIGATIONS

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

– 26 & 29 August 2019] 28
 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.
 To observe mutual respect and fidelity. –

T
– 26 & 29 August 2019] 29
 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,
– 26 & 29 August 2019] 30
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.)
 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
– 26 & 29 August 2019] 31
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
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,
– 26 & 29 August 2019] 32
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.
 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

– 26 & 29 August 2019] 33
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.
Corazon

Bayani Bonifacio

Andres

– 26 & 29 August 2019] 34
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.
7. Armando is a collateral blood relative of Vilma within
8. Violet is a collateral blood relative of Angelo within
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.
– 26 & 29 August 2019] 35
* * * 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! 
SOURCES of NOTES:
– 26 & 29 August 2019] 36
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 2019] 1

CONCEPT AND NATURE OF

 Effectivity of the Family Code. –

 Marriage defined. – Article 1 of the Family

within the limits provided by this Code.

 Constitutional provisions on marriage. –

“Sec. 1. – The State recognizes the

“Sec. 2. Marriage, as an inviolable

 Marriage is a special contract. – Marriage

(a) Unlike in ordinary contracts, the parties are

 Marriage is a permanent union. –

 The cohabitation of a spouse with another

 Purpose of marriage. – The purpose of

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

 Our family law is based on the policy that

and moral fabric and, hence, their preservation is not the

 Marriage settlements or pre-nuptial

 Essential requisites of marriage. – Article

ARTICLE. 2. – No marriage shall

 Legal capacity. – One has legal capacity

(a) is 18 years old or over (Art. 5,

 Consent. – Both of the parties must give

 Effect of absence of any of the essential

 Total absence of consent to the

 Effect of defect in any of the essential

 When parental consent to the marriage is

 How consent manifested. – To prove

(a) The parents or guardians may appear

This personal manifestation shall be recorded in

 Tenor of consent. – The parental

 Effect of absence of parental consent.

 Formal requisites of marriage. – Article 3

“ARTICLE. 3. – The formal

 Authorized solemnizers of marriage.

“ARTICLE 7. – Marriage may be

 Members of the judiciary as

be incumbent and not retired judges. If a marriage is

 Marriages solemnized by priests or

 Articulo mortis. – Ship or airplane

 Consuls as solemnizing officers. –

 Mayors as solemnizing officers. –

 A valid marriage license. – Without a

with the local civil registrar of the city or municipality

 Lifespan of license – The marriage

 Personal appearance in a marriage

 Proxy marriages – Since it is

 Witnesses – It is necessary that the

 Marriage certificate – The marriage

the point of death), it is enough that one of the witnesses

 Marriages void from the beginning for

“ARTICLE 35. – The following

(1) Those contracted by any party

(4) Those bigamous or polygamous

 Marriages void because of psychological

ART. 36. – A marriage contracted

 Marriages void because of incestuous