CIVIL LAW REVIEW natural and primary right and duty of parents in the

MODULE NO. 2 rearing of the youth for civic efficiency and the
development of moral character shall receive the support
THE FAMILY CODE OF THE PHILIPPINES of the Government.
EXECUTIVE ORDER NO 209, AS AMENDED
Effectivity of Family Code Article 15, 1987 Constitution
August 3 1988
Section 1
MARRIAGE The State recognizes the Filipino family as the foundation
Marriage in General of the nation. Accordingly, it shall strengthen its solidarity
Dual concept: and actively promote its total development.
As a contract As a social institution
It is a special contract Marriage in this jurisdiction
between a man and a is not a mere contract, but
woman entered into in a social institution in which Section 2
accordance with the law for the State is virtually Marriage, as an inviolable social institution, is the
the establishment of interested. This interest foundation of the family and shall be protected by the
conjugal and family life proceeds from the State.
constitutional mandate that
the State recognizes the Marriage Distinguished from Ordinary Contract
sanctity of family life and of Marriage Contract Ordinary Contract
affording protection to the 1. Only two persons of 1. May be entered into by
family as a basic opposite sex may enter into any number of persons,
autonomous social a contract of marriage, and whether of the same or
institution. but one such contract may different sex.
exist at the same time.
Constitutional Provision Protecting Marriage and 2. The nature, 2. The parties are free to
Family. consequences and establish such stipulations,
Section 12, Art 2 1987 Constitution incidents of marriage are clauses, terms and
The State recognizes the sanctity of family life and shall governed by law and not conditions as they may
protect and strengthen the family as a basic autonomous subject to an agreement deem convenient provided
social institution. It shall equally protect the life of the they are not contrary to
mother and the life of the unborn from conception. The Exception: With respect to law, morals, good customs,

1
 property relations, the public order or public Essential Void
parties may fix the same policy. Formal Void
within the limits provided
under the Family Code. Exception: even if the
3. Cannot be revoked, 3. The parties may, by solemnizing officer has no
dissolved or otherwise mutual agreement, authority, the marriage is valid if
terminated by the parties, terminate an ordinary either or both parties believed in
but only by the sovereign contract. good faith that the SO has the
power of the State. legal authority to do so.
4. Marriage is not a mere contract, but also a social
institution Defect in Consent voidable
Irregularity in Does not affect the validity but
Presumptions favoring marriage: FORMAL party responsible shall be civilly,
1. That if a man and a woman deport themselves as criminally and administratively
husband and wife, they are presumed, in the liable.
absence of counter-presumption or evidence
special to the case, to be in fact married.
2. That the law favors the validity of marriage217 and B. Formal Requisites (Article 3, FC)
the burden of proof to show the nullity of the
marriage rests upon the party seeking its nullify. 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

Requisites of Valid Marriage (Arts. 1.34,FC)
A. Essential Requisites (Article 2)
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
ABSENCE
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
Legal Capacity to Contract Marriage
- means that the parties must have attained the age
requirements and that there should be no legal
impediment to marry each other

2

REQUISITES OF LEGAL CAPACITY
To be capacitated to contract marriage, the parties must
be:
1. a make and a female
2. at least 18 years of age
3. must not be suffering from any legal impediments
mentioned in Article 37 and 38 of the Family Code
SEXES OF THE PARTIES
 Same Sex Marriage is not recognized as valid
here in the Philippines, even if the solemnized
abroad and valid there as much. It is not
considered as marriage under Philippine laws
because marriage pertains to a special contract of
a permanent union between a man and a woman
In Silverio v. Republic, it was held that in this jurisdiction
there is no law legally recognizing sex reassignment and
its effect. Citing the Register Law (Act 3753), the Court
held that the sex of a person is determined at birth, done
by 'the birth attendant (the physician or midwife) by
examining the genitals of the infant. If the determination
of a person's sex made time of his or her birth is not
attended by error, the same is immutable and may not be
changed by reason of a sex reassignment surgery
Republic of the Philippines v. Jennifer
Cagandahan ,however, the Supreme Court allowed the
correction of entries in the birth certificate of respondent
to change her sex or gender, from female to male, on the
ground of her medical condition known as Congenital
Adrenal Hyperplasia (CAH), and her name from
"Jennifer" to "Jeff." Biologically, nature endowed
respondent with a mixed (neither consistently and
categorically female nor consistently and categorically
male) composition. Respondent has female (XX)
chromosomes. However, respondent's body system
naturally produces high levels of male hormones
(androgen). As a result, respondent has ambiguous
genitalia and the phenotypic features of a male. But in
respondent's case, he has simply let nature take its
course and has not taken unnatural steps to arrest or
interfere with what he was born with. And accordingly, he
has already ordered his life to that of a male. In this kind
of situation, according to the Court, the determining factor
in his gender classification would be what the individual,
like respondent, having reached the age of majority, with
good reason her sex.
AGE OF THE PARTIES
 if any party is below 18 years of age, the marriage
is void even the same is with consent of the
parents and even if it be solemnized outside the
Philippines and is valid there as such.
 minimum age of for marriage is reckoned on the
date of the marriage and not on the date of filing of
the application for a marriage license
Absence of legal impediments
If the parties are suffering from the impediments
mentioned in Articles 37 and 38 of the FC, the marriage
is void, even if the marriage is solemnized outside the
Philippines and valid there as such.
3
 LEGAL IMPEDIMENTS
 Those marriages falling under:
Article 37 of the Family
Code
Marriages between the
following are incestuous
and void from the beginning,
whether relationship
between the parties be
legitimate or illegitimate:
(1) Between ascendants and
descendants of any degree;
and
(2) Between brothers and
sisters, whether of the full or
half blood.
Article 38 of the Family
Code
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
Consent
If there is no consent,
If consent was given by a
party who is at least 18 but
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.
no marriage
Thus, if the marriage is
contracted through mistake
of one contracting party
with respect to the actual
physical identity of the
other, the marriage is void
because there is no real
consent.
such consent is defective,
thus rendering the marriage
4
below 21 but without voidable that they comply with all the legal requisites are
parental consent equally valid.
If consent was given by a the same is defective, Love, though the ideal consideration m a marriage
party who was of unsound rendering the marriage contract is not the only valid cause for marriage. Other
mind at the time of the voidable considerations, not precluded by law, may validly support
celebration of the mardage a marriage.'
If consent was given but it voidable because the
was vitiated by fraud, force, consent is defective Valid Marriage License
intimidation or undue
influence effect
If the marriage was
celebrated without a VOID
In Republic v. Albios, where a citizen of the Philippines marriage license
got married to an American citizen solely for the purpose If marriage license was
of acquiring American citizenship in consideration of a spurious or fake
sum of money, it was alleged that the marriage was void If there is mere irregularity The validity of the
because it was one made in jest and consent was in the issuance of the marriage shall not be
therefore lacking. In declaring the marriage to be valid, marriage license affected but the party/ies
the Court ruled that that there is no law that declares responsible for the
a marriage void if it is entered into for purposes other irregularity shall be civilly,
than what the Constitution or law declares, such as criminally or
the acquisition of foreign citizenship. administratively liable .

While the avowed purpose of marriage under Article 1 of In Alcantara v.

the Family Code is for the couple to establish a conjugal Alcantara,the petitioner in
and family life, the possibility that the parties in a that case attempted to
marriage might have no real intention to establish a life demolish the probative
together is, however, insufficient to nullify a marriage value of the marriage
freely entered into in accordance with law, license by claiming that
Thus, marriages entered into for other purposes, neither he nor respondent
limited or otherwise, such as convenience, is a resident of Carmona,
companionship, money, status, and title, provided Cavite where the marriage
license was allegedly

5
 obtained. The Court ruled or municipality marriage is still
that the issuance of a where either valid because
marriage license in a city contracting there is mere
or municipality, not the party habitually irregularity in a
residence of either of the resides. formal requisite
contracting parties, and which does not
issuance of a marriage affect the validity
license despite the 2.If abroad, in the of the marriage.
absence of publication or office of the Marriage license
prior to the completion of consular shall be valid in
the 10day period for officials. any part of the
publication are considered Philippines.
mere irregularities that do
not affect the validity of Noncompliance:
the marriage. Marriage is still
valid in the PH if
 Note that the solemnizing officer does not even the same is valid
have to investigate whether or not the license has in the place
properly been issued by the local civil registrar. where the
 All the solemnizing officer needs to know is that marriage is
the license has been issued by the competent solemnized.
official, and it may be presumed from the issuance Period of Marriage license A marriage
of the license that said official has fulfilled the duty effectivity is valid only for a celebrated after
to ascertain whether the contracting parties had period of 120 the expiry date
fulfilled the requirements of law. days from date of the license is
of issue and is VOID.
RULES WITH RESPECT TO ISSUANCE OF deemed
MARRIAGE LICENSE AND EFFECTS OF NON- automatically
COMPLIANCE cancelled at the
Subject Matter Rule Effect of non- expiration of said
compliance period.
Place of 1.If local, in the If obtained Requirement of If any party is If the license is
issuance LCR of the city elsewhere, the PARENTAL below 21, issued

6
CONSENT parental consent notwithstanding which does not
must be the absence of affect the validity
exhibited to the the parental of the marriage/
LCR consent, the Req.of The certificate of In the absence
marriage is certificate of marriage of such
VOIDABLE marriage counselling is certification, the
because lack of counselling required if any issuance of the
parental party is 25 and license shall be
consent, not below suspended for
because of the 3 months from
irregularity in the the completion
issuance of the of I the
license. publication of
Requirement of Ig any party is If parental the application.
PARENTAL between 21 and advice is not If the license is
ADVICE 25, parental obtained or od issued without
advice is the same is not observing the
required. favorable, the three-month
marriage license suspension
shall be issued period, the
only after 3 marriage is still
months following valid because
the completion this is a mere
of the publication irregularity in a
of the formal requisite
application. If which does not
issued earlier, affect the validity
the marriage is of the marriage
still valid Publication of The application If the license is
because thee is application for for the issuance issued prior to
a mere issuance of of the marriage the completion
irregularity in a license license must be of the period of
formal requisite published for 10 publication, the

7
 consecutive marriage is still that they had
days and the valid because duly received
license shall be this is a mere adequate
issued only after irregularity in a instructions and
the completion formal requisite information in
of the period of which does not responsible
publication affect the validity parenthood,
of the marriage family planning,
Req.of If either or both The absence of breastfeeding
certificate of parties are a cert of legal and infant
legal capacity citizens of a capacity is nutrition.
to contract foreign country, merely an
marriage a certificate to irregularity in Duty of Local Civil Registrar in Case There is
contract complying with Impediment:
marriage must the formal  The local civil registrar is required to issue the
be submitted. requirement of marriage license after the completion of the 10-day
procuring a period of publication, even if any impediment is
marriage license known to him or brought to his attention, unless
which will not the court will order otherwise at the instance of the
affect the validity local civil registrar or that of any interested party.
of marriage.
Req. of No marriage Absence of such Marriages which are exempt from license
certificate of license shall be is merely an requirement:
compliance in issued by the irregularity in Nature of Requisites/ reminders
attending LCR unless the complying with marriages
family planning applicants the formal 1. marriages in 1. Marriage remains valid even if the
seminar. present a requirement of articulo mortis ailing party subsequently survives
Certificate of procuring a 2. In lieu of the license, the solemnizer
compliance marriage license must execute an affidavit stating
issued for free which will not that:
by the local affect the validity a) He performed the marriage
Family planning of the marriage. in articulo mortis and
officer certifying b) he took steps to ascertain

8
 the ages, relationship and
absence of legal
impediments of the parties.
The absence of such affidavit is a
mere irregularity which will not affect
the validity of the marriage.
Marriages in Requisite:
remote places The residence of either party is so
located that there is no means of
transportation to enable such party to
appear personally before the local
civil registrar.
In lieu of the license, the solemnizer
must execute an affidavit stating that:
a) the residence of either party is
so located that there is no
means of transportation to
enable such party to appear
personally before the local civil
registrar; an
b) he took steps to ascertain the
ages, relationship and absence
of legal impediments of the
parties.
The absence of such affidavit is a
mere irregularity which will not affect
the validity of the marriage.
Marriage Requisites:
among
Muslims and a. Marriage must be among Muslims
ethnic cultural or among members of ethnic
communities cultural communities; and
b. Marriage must be solemnized in
accordance with their customs, rites
or practices.
Reminder:
In case of a marriage between a
Muslim and a non-Muslim:
Article 13(2) of the Code of Muslim
Personal Laws, or
RD. No. 1083, provides that the
Family Code of the Philippines (in lieu
of the Civil Code of the Philippines)
shall apply in case such marriage is
solemnized not in accordance with
Muslim law or the Code of Muslim
Personal Laws.
Since the Family Code applies in this
situation, the marriage is not exempt
from the requirement of a marriage
license.
Legal Requisites:
ratification of
marital a) Man and woman must have been
cohabitation living together as husband and wife
for at least 5 years before the
marriage;
b)Parties must have no legal
impediment to marry each other
during the 5-year period of
cohabitation.
9
Procedural requirements:
a) Parties must execute an affidavit
stating that they have lived together
for at least five years and are
without legal impediment to marry
each other, although the absence of
such affidavit does not affect the
validity of the marriage if the
requisites mentioned above are
present; and
b) Solemnizing officer must execute a
sworn statement that he had
ascertained the qualifications of the
parties and that he had found no
legal impediment to their marriage
Reminders:
1) The person who notarizes the
contracting parties' affidavit of
cohabitation cannot be the judge who
will solemnize the parties' marriage.
As a solemnizing officer, the judge's
only duty involving the affidavit of
cohabitation is to examine whether
the parties have indeed lived together
for at least five years without legal
impediment to marry.
2) The 5-year period should be
computed on the basis of a
cohabitation as "husband and wife”
where the only missing factor is the
special contract of marriage to
validate the union.
In other words, the five-year common-
law cohabitation period, which is
counted back from the date of
celebration of marriage, should be a
period of legal union had it not been
for the absence of marriage.
This five-year period should be the
years immediately before the day of
the marriage and it should be a
period of cohabitation characterized
by exclusivity meaning no third party
was involved at any time within the
five years and continuity that is
unbroken. Otherwise, if that
continuous five-year cohabitation is
computed without any distinction as to
whether the parties were capacitated
to marry each other during the entire
five years, then the law would be
sanctioning immorality and
encouraging parties to have common
law relationships and placing them on
the same footing with those who lived
faithfully with their spouse
In Republic v. Dayot, the Supreme
Court ruled that the falsify of an
affidavit of marital cohabitation, where
the parties have in truth fallen short of
the minimum five-year requirement,
effectively renders the marriage void
10
 ab initio for lack of a marriage
license.
In De Castro v. Assidao-De Castro,
the Court further clarified that the
falsify of the affidavit cannot be
considered as a mere irregularity in
the formal requisites of marriage. To
permit a false affidavit to take the
place of a marriage license, the Court
explained in Dayot, is to allow an
abject circumvention of the law.
In Santiago v. People,the Court held
that the falsify of an affidavit of
cohabitation CANNOT be used as a
defense in the crime of bigamy, for it
will be the height of absurdity for the
Court | to allow the accused to use
her illegal act to escape criminal
conviction.
Authority of Solemnizing Officer
Persons authorized Requisites
1. Members of judiciary a) Must be incumbent
members: and b) Must
(a) justices of the SC solemnize the marriage
within the court's
(b) justices of the CA jurisdiction.
(c) justices of Marriages outside of court's
Sandiganbayan jurisdiction:
(d) judges of the RTCs
(e) judges of the CTAs
(f) judges of the MTCs
2. Priest, rabbi, imam and
other religious ministers
3. Ship captain or airplane
chief
Where a judge solemnized
a marriage outside his
court's jurisdiction, this is a
mere irregularity in the
formal requisite, which
while it may not affect the
validity of the marriage,
may subject the officiating
official to administrative
liability.
a) Must be duly authorized
by his respective church or
sect in writing; b) His
written authority must be
duly registered with the
Civil Registrar General;
c) He must act within the
limits of such written
authority; and
d) At least one of the
contracting parties must
belong to his church or
sect.
a) Marriage must be in
articulo mortis (at the point
of death);
b) Marriage must be
between passengers
and/or crew members.
Note: Such authority may
be exercised not only while
the ship is at sea or the
11
 plane is in flight but also
during stopovers at ports of
call
4. Military commanders of a a) Must be a commissioned
unit officer, or an officer in the
armed forces holding rank
by virtue of a commission
from the President;
b) Assigned chaplain to his
unit must be absent;
c) Marriage must be in
articulo mortis, and
d) Marriage must be
solemnized within the zone
of military operations.
Note: The contracting
parties need not be
members of the armed
forces. They can be
civilians.
5. Consul-general, consul a) Marriage must be
or vice-consul celebrated abroad in the
country where the consul
holds office; and
b) Marriage must be
between Filipino citizens
6. Mayors Note: Marriages
solemnized by a mayor
outside of his territorial
jurisdiction remain valid
because this is a mere
irregularity in a formal
requisite
Marriage Ceremony
 No prescribed form or religious rite for
solemnization of marriage is required.
 Minimum Requirement:
1. There should be personal appearance of
the contracting parties before a solemnizing
officer; and
2. Their declaration in the presence of not less
than 2 witnesses that they take each other
as husband and wife. 
3. Such personal declaration by the parties
must be done in the presence of the SO
Requisites for marriage ceremony to exist
requisites consequence
1. Personal A marriage celebrated through video
appearance conferencing where either or both
before a parties do not appear personally before
solemnizing the solemnizing officer is not valid if
officer celebrated in the Philippines. If
celebrated abroad, however, and valid
there as such, it shall likewise be
considered as valid in the Philippines
2. Personal a) A marriage by proxy, if celebrated in
declaration by the Philippines, is not valid.
the contracting
parties that However, if celebrated abroad and valid
they are taking there as such, it shall likewise be
each other as considered as valid in the Philippines.
12
husband and
wife b) No prescribed form or religious rite is
required.
Hence, failure of SO to ask the parties
WON they take each other as husband
and wife cannot be regarded a fatal
omission if the parties nonetheless
signed the marriage contract in the
presence of the SO.
" A declaration.by word.of mouth of what
the parties had already stated in writing
should not be regarded as a fatal defect
3. Such a. No marriage ceremony if what was
personal transpired was a mere private act of
declaration by signing a marriage contract w/o the
the parties presence of SO.  parties and attested to by the
must be done
in the Compare with Infante v. Arenas: If the
presence of signing of the marriage contract was
the done in the presence of the solemnizing
solemnizing officer, there is a marriage ceremony
officer even if the parties did not verbalize their
consent to the marriage.
b. What is mandatory is the consent
of the parties be given before a
solemnizing officer. The requirement
that the same be given in the
presence of at least 2 witnesses of
legal age is merely directory
c) In Ronulo v. People,a solemnizing
officer from the Aglipayan Church was
charged with violation of Article 352 of
the RPC for allegedly performing an
illegal marriage ceremony because he
solemnized the marriage knowing fully
well that the parties did not have
marriage license. The accused
contended that he merely conducted a
"blessing" and that in order for a
marriage ceremony to exist, the law
require the verbal declaration that the
couple take each other as husband and
wife, and a marriage certificate
containing the declaration in writing
which is duly signed by the contracting
solemnizing officer. In holding that the
accused indeed performed a marriage
ceremony, the Court ruled that the law
sets the minimum requirement
constituting a marriage ceremony:
1. there should be the personal
appearance of the contracting parties
before the solemnizing officer
2. declaration in the presence of not less
than 2 witnesses that they take each
other as husband and wife. 
MARRIAGE CONTRACT
13

Importance of a marriage contract
 It is the best documentary evidence of a marriage.
 Its existence renders unnecessary the
presumption that “a man and a woman deporting
themselves as husband and wife have entered into
a lawful contract of marriage.
Effect of absence of marriage contract:
 Its absence is not, however, proof that no marriage
took place because other evidence may be
presented to prove the fact of marriage.
 Thus, the mere fact that no record of the marriage
exists in the registry of marriage does not
invalidate said marriage, as long as in the
celebration thereof, all requisites for its validity are
present.
 The forwarding of a copy of the marriage
certificate to the registry of marriage is not one of
said requisites.
Other proof of marriage:
1. testimony of a witness to the matrimony;
2. the couple’s public and open cohabitation n/as
husband and wife after the alleged wedlock;
3. the birth and baptismal certificates of children born
during such union; and
4. mention of such nuptial in subsequent documents
Validity of Marriages Celebrated Abroad
General Rule: For marriages involving Filipino
citizens celebrated abroad, the rule is that such
marriages are considered valid in the Philippines if
they are valid in the place where they are celebrated
 Hence, the following marriages are valid
1. Marriages without a marriage license if such is not
required in the place of celebration. However, if
the marriage is celebrated before the Philippine
consular officials pursuant to Article 10 of the FC,
marriage license is still necessary.
2. Marriages celebrated by a person who is
authorized to solemnize marriages in the place of
celebration even if he or she is not deemed
authorized to solemnize marriages under
Philippine laws.
3. Marriages by proxy, if valid in the place of
celebration.
4. Marriages through video conferencing, if valid in
the place of celebration.
Exceptions: The following marriages are void even if
they are celebrated abroad and considered. valid in
the place of their celebration -
1. If a party thereto is below, 18 and he or she is a
Filipino citizen
2. If the marriage is bigamous or polygamous.
3. If the marriage is contracted through mistake of
one contracting party as to the identity of the other.
4. If one of the parties in a subsequent marriage is
already a party to a prior marriage which has been
annulled or judicially declared void but fails to
14
 comply with the requirements of Article 52 of the
F03“
5. If one of the parties to such marriage, at the time
of its celebration, is psychologically
incapacitated \to comply with the essential marital
obligations.
6. If the marriage is incestuous.
7. If the marriage is void by reason of public policy as
enumerated in Article 38 of the FC
8. Same-sex marriage is likewise not recognized as
valid in the Philippines.
 It is not even a marriage under Philippine laws
which define marriage as a special contract of
permanent union between a man and woman only.
Validity of Absolute Divorce
RULE AS TO DIVORCE BETWEEN FILIPINOS
• Philippine law does not provide for absolute
divorce; hence, our courts cannot grant it. A marriage
between two Filipinos cannot be dissolved even by
divorce obtained abroad, because of Articles 15 and 17
of the Civil Code
• Such divorce between Filipinos is void and
ineffectual because it is contrary to our public policy and
morality
• This rule has remained even under the Family
Code even if either or both parties are residing abroad
EXCEPTION: In a mixed marriage involving a Filipino
citizen and a foreigner, the Family Code allows the
former to remarry in case the divorce is validly obtained
abroad by the alien spouse capacitating him or her to
remarry.

THREE IMPORTANT LEGAL PREMISES ON DIVORCE

1. A divorce obtained abroad by an alien married to a
Philippine national may be recognized in the
Philippines, provided the decree of divorce is valid
according to the national law of the foreigner
2. The reckoning point is not the citizenship of the
divorcing parties at birth or at the time of marriage,
but their citizenship at the time a valid divorce is
obtained abroad
3. An absolute divorce secured by a Filipino married to
another Filipino is contrary to our concept of public REQUISITES FOR APPLICATION OF ART. 26
policy and morality and shall not be recognized in PARAGRAPH 2
this jurisdiction

15
REQUISITES REMINDERS
1)     It must be a Reckoning point: Citizenship
case of mixed of the parties at the time a
marriage (one valid divorce is obtained
party is abroad capacitating the alien
Filipino and spouse to remarry
the other is  
alien) In case where both parties
  were Filipino citizens at the
time of the celebration of
marriage, but later on, one of
them becomes naturalized as
a foreign citizen and
thereafter obtains a valid
divorce decree, Article 26 of
the FC applies
2)      The divorce Pursuant to Republic v.
must be Manalo, foreign divorce
obtained by decrees obtained to nullify
the alien marriages between a Filipino
spouse and and an alien citizen may
not by the already be recognized in this
Filipino jurisdiction, regardless of who
spouse between the spouses initiated
  the divorce; provided, that the
party petitioning for the
recognition of such foreign
divorce decree — presumably
the Filipino citizen — must
prove the divorce as a fact
and demonstrate its
conformity to the foreign law
allowing it.
3)      The divorce a)     If the divorce decree
obtained by obtained was a limited
the alien divorce or a mensa et
spouse must thoro; or if the foreign law
capacitate restricts remarriage even
him or her to after the divorce decree
remarry becomes absolute, the
Filipino spouse is not
likewise capacitated to
remarry
b)    A divorce obtained
abroad by an alien may be
recognized in our
jurisdiction, provided such
decree is valid according
to the national law of the
foreigner
c)     Before the divorce
decree can be recognized
by our courts, the party
pleading it must prove the
divorce as a fact and
demonstrate its conformity
to the foreign law allowing
it, which must be proved
considering that our courts
cannot take judicial notice
of foreign laws
d)    The recognition of foreign
divorce decree may be
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 • Only the Filipino spouse can invoke the second
made in a Rule 108
paragraph of Article 26 of the Family Code while the
proceeding itself, as the
alien spouse can claim no right under said provision
object of special
• The provision was included in the law to avoid the
proceedings is precisely to
absurd situation where the Filipino spouse remains
establish the status or right
married to the alien spouse who, after obtaining a
of a party or a particular
divorce is no longer married to the Filipino spouse
fact
• The legislative intent is for the benefit of the Filipino
e)     The registration of a
spouse, by clarifying his or her marital status, settling
foreign divorce decree in
the doubts created by the divorce decree
the civil registry without the
• Essentially, the second paragraph of Article 26 of the
requisite judicial
Family Code provided for The Filipino spouse a
recognition is patently void
substantive right to have his or her marriage to the
and cannot produce any
alien spouse considered as dissolved, capacitating
legal effect. The Court
him or her to remarry.
explained that while the
• Thus, if the Filipino spouse invokes the second
law requires the entry of
paragraph of Article 26 of the Family Code, the action
the divorce decree in the
is not limited to the recognition of the foreign divorce
civil registry, the law and
decree. If the court finds that the decree capacitated
the submission of the
the alien spouse to remarry, the courts can declare
decree by themselves do
that the Filipino spouse is likewise capacitated to
not ipso facto authorize the
contract another marriage.
decrees registration. The
• No court in this jurisdiction however can make a
law should be read in
similar declaration for the alien spouse, whose status
relation with the
and legal capacity are generally governed by his
requirement of a judicial
national law
recognition of the foreign
• The unavailability of the second paragraph of Article
judgment before it be
26 to aliens does not necessarily strip the alien spouse
given res judicata effect
of legal interest to petition our courts for the
recognition of his or her foreign divorce decree
• The foreign divorce decree itself after its authenticity
and conformity with the alien’s national law have been
ARTICLE 26 2ND PAR. APPLICABLE ONLY TO
FILIPINO SPOUSE
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 duly proven according to our rules of evidence, serves
as a presumptive evidence of right in his or her favor  

PRINCIPLE APPLIED TO FOREIGN JUDGMENT

INVOVLING BIGAMY

The principle of Article 26 is also applicable to marriage

between a Filipino and a foreign citizen who obtains a
foreign judgment nullifying the marriage on the ground of
bigamy
Reason: the foreign spouse, after the foreign judgment
nullifying the marriage, is capacitated to remarry under
the laws of his or her country.

If the foreign judgment is not recognized in the

Philippines, the Filipino spouse will be discriminated – the
foreign spouse can remarry while the Filipino spouse
cannot remarry

RETROACTIVE APPLICATION OF RULE

San Luiz v. San Luis: There is no need to retroactively
apply the provisions of the second paragraph of Article 26
of the Family Code because there is sufficient
jurisprudential basis to apply the rule embodied in the
said law to absolute divorces obtained by the foreign
spouse prior to the effectivity of the Family Code such as
Van Dorn v. Romillo, Jr, Pilapil v. Ibay-Somera and Quita
v. CA

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