REQUISITES OF MARRIAGE

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)

By the contract of marriage, a man and a woman enter a joint life

acting, living, working as one. The husband and the wife become
one sing moral, spiritual and social being, not only for the purpose
of procreation but also for the purpose of mutual help and
protection physically, morally and materially.

While marriage is often termed as a civil contract, it is something

more than a mere contract. The consent of the parties is of course
essential to its existence, but when the contract to marry is
executed, a relation between the parties is created which they
cannot change. Other contracts may be modified, restricted or
enlarged, or entirely released upon the consent of the parties. Not
so with marriage. The relation once formed, the law steps in and
holds the parties to various obligations and liabilities. It is an
institution in the maintenance of which in its purity, the public is
deeply interested, for it is the foundation of the family and of
society, without which there would be neither civilization nor
progress.

The marital relation, unlike ordinary contractual relations, is

regarded by the laws as the basis of the social organization. The
preservation of that relation is deemed essential to public welfare.

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MARRIAGE AS A STATUS. Marriage creates a social status or
relation between the contracting parties, in which not only they but
the State as well are interested.

Art. 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)

Art. 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)

Art. 4. The absence of any of the essential or

formal requisites shall render the marriage
void ab initio, except as stated in Article 35 (2).

A defect in any of the essential requisites shall

render the marriage voidable as provided in
Article 45.

An irregularity in the formal requisites shall not

affect the validity of the marriage but the party or
parties responsible for the irregularity shall be
civilly, criminally and administratively liable. (n)

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 Art. 5. Any male or female of the age of eighteen
years or upwards not under any of the
impediments mentioned in Articles 37 and 38,
may contract marriage. (54a)

Art. 6. No prescribed form or religious rite for the

solemnization of the marriage is required. It shall
be necessary, however, for the contracting
parties to appear personally before the
solemnizing officer and declare in the presence of
not less than two witnesses of legal age that they
take each other as husband and wife. This
declaration shall be contained in the marriage
certificate which shall be signed by the
contracting parties and their witnesses and
attested by the solemnizing officer.

In case of a marriage in articulo mortis, when the

party at the point of death is unable to sign the
marriage certificate, it shall be sufficient for one
of the witnesses to the marriage to write the
name of said party, which fact shall be attested by
the solemnizing officer. (55a)

LEGAL CAPACITY. Under the New Family Code, the marrying age
is 18 years old and above. This is likewise the age of majority. If
any of the parties is below 18 years of age, the marriage is void
even if the consent of the parents has been previously obtained.

CONTRACTING PARTIES MUST BE OF DIFFERENT SEX. Marriage is

a union founded on the distinction of sex. The law provides that
the contracting parties must be male and female.

CONSENT. The requirements of consent are: it must be (a) freely

given; and (b) the same must be made in the presence of the
solemnizing officer.

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The total absent of consent makes the marriage void ab initio.
However, consent in marriage obtained through fraud, force,
intimidation, or undue influence makes such marriage merely
annullable or voidable (meaning valid until annulled).

***Question to ponder: Is marriage for purposes of securing an

American citizenship valid?

Case analysis:

Republic of the Philippines v. Liberty D. Albios, G.R. No. 198780, October 16,
2013

On October 22, 2004, Fringer, an American citizen, and Albios were married
before Judge Ofelia I. Calo of the Metropolitan Trial Court, Branch 59,
Mandaluyong City (MeTC), as evidenced by a Certificate of Marriage with
Register No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of
nullity 4 of her marriage with Fringer. She alleged that immediately after their
marriage, they separated and never lived as husband and wife because they
never really had any intention of entering into a married state or complying with
any of their essential marital obligations. She described their marriage as one
made in jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September
13, 2007, Albios filed a motion to set case for pre-trial and to admit her pre-trial
brief. The RTC ordered the Assistant Provincial Prosecutor to conduct an
investigation and determine the existence of a collusion. On October 2, 2007, the
Assistant Prosecutor complied and reported that she could not make a
determination for failure of both parties to appear at the scheduled
investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer
did not attend the hearing despite being duly notified of the schedule. After the
pre-trial, hearing on the merits ensued.

The RTC declared the marriage void ab initio. The RTC was of the view that the
parties married each other for convenience only. Giving credence to the
testimony of Albios, it stated that she contracted Fringer to enter into a marriage

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to enable her to acquire American citizenship; that in consideration thereof, she
agreed to pay him the sum of $2,000.00; that after the ceremony, the parties
went their separate ways; that Fringer returned to the United States and never
again communicated with her; and that, in turn, she did not pay him the
$2,000.00 because he never processed her petition for citizenship. The RTC,
thus, ruled that when marriage was entered into for a purpose other than the
establishment of a conjugal and family life, such was a farce and should not be
recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor

General (OSG), filed a motion for reconsideration. The RTC issued the Order, 7
dated February 5, 2009, denying the motion for want of merit. It explained that
the marriage was declared void because the parties failed to freely give their
consent to the marriage as they had no intention to be legally bound by it and
used it only as a means to acquire American citizenship in consideration of
$2,000.00.

Eventually, the Court of Appeals affirmed the RTC ruling which found that the
essential requisite of consent was lacking.

ISSUE: The resolution of this case hinges on this sole question of law: Is a
marriage, contracted for the sole purpose of acquiring American citizenship in
consideration of $2,000.00, void ab initio on the ground of lack of consent?

RULING: In declaring the respondent’s marriage void, the RTC ruled that when
a marriage was entered into for a purpose other than the establishment of a
conjugal and family life, such was a farce and should not be recognized from its
inception. In its resolution denying the OSG’s motion for reconsideration, the
RTC went on to explain that the marriage was declared void because the parties
failed to freely give their consent to the marriage as they had no intention to be
legally bound by it and used it only as a means for the respondent to acquire
American citizenship. Agreeing with the RTC, the CA ruled that the essential
requisite of consent was lacking. It held that the parties clearly did not
understand the nature and consequence of getting married. As in the Rubenstein
case, the CA found the marriage to be similar to a marriage in jest considering
that the parties only entered into the marriage for the acquisition of American
citizenship in exchange of $2,000.00. They never intended to enter into a
marriage contract and never intended to live as husband and wife or build a
family.

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Based on the above, consent was not lacking between Albios and Fringer. In fact,
there was real consent because it was not vitiated nor rendered defective by any
vice of consent. Their consent was also conscious and intelligent as they
understood the nature and the beneficial and inconvenient consequences of
their marriage, as nothing impaired their ability to do so. That their consent was
freely given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and
deliberately contracted the marriage. There was a clear intention to enter into a
real and valid marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete understanding of the
legal tie that would be created between them, since it was that precise legal tie
which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized
such as akin to a marriage by way of jest. A marriage in jest is a pretended
marriage, legal in form but entered into as a joke, with no real intention of
entering into the actual marriage status, and with a clear understanding that the
parties would not be bound.

The ceremony is not followed by any conduct indicating a purpose to enter into
such a relation. It is a pretended marriage not intended to be real and with no
intention to create any legal ties whatsoever, hence, the absence of any genuine
consent.

Marriages in jest are void ab initio, not for vitiated, defective, or unintelligent
consent, but for a complete absence of consent. There is no genuine consent
because the parties have absolutely no intention of being bound in any way or
for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest. Albios

and Fringer had an undeniable intention to be bound in order to create the very
bond necessary to allow the respondent to acquire American citizenship. Only a
genuine consent to be married would allow them to further their objective,
considering that only a valid marriage can properly support an application for
citizenship. There was, thus, an apparent intention to enter into the actual
marriage status and to create a legal tie, albeit for a limited purpose. Genuine
consent was, therefore, clearly present.

The respondent’s marriage is not at all analogous to a marriage in jest. Albios

and Fringer had an undeniable intention to be bound in order to create the very
bond necessary to allow the respondent to acquire American citizenship. Only a
genuine consent to be married would allow them to further their objective,

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 considering that only a valid marriage can properly support an application for
citizenship. There was, thus, an apparent intention to enter into the actual
marriage status and to create a legal tie, albeit for a limited purpose. Genuine
consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the
couple to establish a conjugal and family life. The possibility that the parties in a
marriage might have no real intention to establish a life together is, however,
insufficient to nullify a marriage freely entered into in accordance with law. The
same Article 1 provides that the nature, consequences, and incidents of marriage
are governed by law and not subject to stipulation. A marriage may, thus, only
be declared void or voidable under the grounds provided by law. There is no law
that declares a marriage void if it is entered into for purposes other than what
the Constitution or law declares, such as the acquisition of foreign citizenship.
Therefore, so long as all the essential and formal requisites prescribed by law
are present, and it is not void or voidable under the grounds provided by law, it
shall be declared valid.

Motives for entering into a marriage are varied and complex. The State does not
and cannot dictate on the kind of life that a couple chooses to lead. Any attempt
to regulate their lifestyle would go into the realm of their right to privacy and
would raise serious constitutional questions. The right to marital privacy allows
married couples to structure their marriages in almost any way they see fit, to
live together or live apart, to have children or no children, to love one another
or not, and so on. Thus, marriages entered into for other purposes, limited or
otherwise, such as convenience, companionship, money, status, and title,
provided that they comply with all the legal requisites, are equally valid. Love,
though the ideal consideration in a marriage contract, is not the only valid cause
for marriage. Other considerations, not precluded by law, may validly support a
marriage.

Although the Court views with disdain the respondent’s attempt to utilize
marriage for dishonest purposes, It cannot declare the marriage void. Hence,
though the respondent’s marriage may be considered a sham or fraudulent for
the purposes of immigration, it is not void ab initio and continues to be valid and
subsisting.

AUTHORITY OF THE SOLEMNIZING OFFICER. The solemnizing

officer may be one of those enumerated in Article 7 of the New
Family Code. It must be observed that it is not the presence or

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absence of the solemnizing officer which constitutes the formal
requirement but it is the absence or presence of the authority of
such solemnizing officer.

VALID MARRIAGE LICENSE. The requirement and issuance of a

marriage license is the States demonstration of its involvement and
participation in every marriage, in the maintenance of which the
general public interested. A valid marriage license must be issued
by the local civil registrar of the place where the marriage
application was filed. Once issued, it has only a lifetime of 120 days
from the date of issue and is effective in any part of the Philippines.
The date of issue is the date of signing of the marriage license by
the local civil registrar. A defect in the marriage license (such as
error in the name, or it issued in the place where the parties do not
reside) does not affect the validity of the marriage.

MARRIAGE CEREMONY. The Family Code does not 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.

WITNESS IN A MARRIAGE CEREMONY. Article 3(3) expressly

provides that, as part of the marriage ceremony which is a formal
requirement, there must be no less than two witnesses of legal age
in attendance.

Art. 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 duly authorized by his
church or religious sect and registered with the
civil registrar general, acting within the limits of
the written authority granted by his church or
religious sect and provided that at least one of the

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contracting parties belongs to the solemnizing
officer’s church or religious sect;
(3) Any ship captain or airplane chief only in the
case 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;
(5) Any consul-general, consul or vice-consul in
the case provided in Article 10. (56a)

Article. 8. The marriage shall be solemnized

publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the
office the consul-general, consul or vice-consul,
as the case may be, and not elsewhere, except in
cases of marriages contracted on the point of
death or in remote places in accordance with
Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing
in which case the marriage may be solemnized at
a house or place designated by them in a sworn
statement to that effect. (57a)

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Art. 14. In case either or both of the contracting

parties, not having been emancipated by a
previous marriage, are between the ages of
eighteen and twenty-one, they shall, in addition
to the requirements of the preceding articles,
exhibit to the local civil registrar, the consent to
their marriage of their father, mother, surviving
parent or guardian, or persons having legal
charge of them, in the order mentioned. Such
consent shall be manifested in writing by the
interested party, who personally appears before
the proper local civil registrar, or in the form of an

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 affidavit made in the presence of two witnesses
and attested before any official authorized by law
to administer oaths. The personal manifestation
shall be recorded in both applications for
marriage license, and the affidavit, if one is
executed instead, shall be attached to said
applications. (61a)

Art. 15. Any contracting party between the age of

twenty-one and twenty-five shall be obliged to
ask their parents or guardian for advice upon the
intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage
license shall not be issued till after three months
following the completion of the publication of the
application therefor. A sworn statement by the
contracting parties to the effect that such advice
has been sought, together with the written advice
given, if any, shall be attached to the application
for marriage license. Should the parents or
guardian refuse to give any advice, this fact shall
be stated in the sworn statement. (62a)

PARENTAL CONSENT. Article 14 requires that if any of the

contracting parties is at least 18 years old but above and below 21
years of age, the consent of the father, mother, surviving parent,
or guardian, or persons having legal charge of them, in the order
mentioned, must be obtained before a marriage license can be
issued to the contracting parties. Non-compliance with this
requirement, however, does not make the marriage invalid or void
but merely annullable which means that the marriage is valid until
annulled.

PARENTAL ADVISE. Parties between the age of 21 and 25 years old

are required to present a parental advise if they intend to marry.
However, absence of parental advise does not affect the marriage.
It does not even make the marriage annullable, as non-advise is

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not a ground for annulment provided for in Article 45 of the Family
Code.

Art. 16. In the cases where parental consent or

parental advice is needed, the party or parties
concerned shall, in addition to the requirements
of the preceding articles, attach a certificate
issued by a priest, imam or minister authorized to
solemnize marriage under Article 7 of this Code or
a marriage counselor duly accredited by the
proper government agency to the effect that the
contracting parties have undergone marriage
counseling. Failure to attach said certificates of
marriage counseling shall suspend the issuance of
the marriage license for a period of three months
from the completion of the publication of the
application. Issuance of the marriage license
within the prohibited period shall subject the
issuing officer to administrative sanctions but
shall not affect the validity of the marriage.
Should only one of the contracting parties need
parental consent or parental advice, the other
party must be present at the counseling referred
to in the preceding paragraph. (n)

The effect of the failure to comply with the requirements of a

parental consent and parental advise is provided under Article 16.

Art. 20. The license shall be valid in any part of

the Philippines for a period of one hundred twenty
days from the date of issue, and shall be deemed
automatically canceled at the expiration of the
said period if the contracting parties have not
made use of it. The expiry date shall be stamped
in bold characters on the face of every license
issued. (65a)

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Mixed marriage; marriage between a Filipino citizen and a foreigner

Art. 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.

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)

MIXED MARRIAGE VALID IN THE PHILIPPINES. Marriage between

a Filipino citizen and a foreigner if solemnized abroad is considered
valid in the Philippines as long as it is not one of those prohibited
under our Family Code such as void marriages (to be discussed
under the topic of void marriages), incestuous marriages, public
policy considerations (e.g. killing your spouse so that you can
marry another). Article 26 applies in marriages involving a Filipino
and a foreigner thus the term “mixed marriage”.

ABSOLUTE DIVORCE PROHIBITED IN THE PHILIPPINES; THE

MEANING OF PARAGRAPH 2 OF ARTICLE 26. The purpose of
paragraph 2 of Article 26 is to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse who, after a
foreign divorce decree that is effective in the country where it was
rendered, is no longer married to the Filipino spouse. The provision
is a corrective measure to address an anomaly where the Filipino
spouse is tied to the marriage while the foreign spouse is free to
marry under the laws of his or her country. Whether the Filipino
spouse initiated the foreign divorce proceeding or not, a favorable
decree dissolving the marriage bond and capacitating his or her
alien spouse to remarry will have the same result: the Filipino

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spouse will effectively be without a husband or wife. A Filipino who
initiated a foreign divorce proceeding is in the same place and in
like circumstance as a Filipino who is at the receiving end of an
alien initiated proceeding. Therefore, the subject provision should
not make a distinction. In both instance, it is extended as a means
to recognize the residual effect of the foreign divorce decree on
Filipinos whose marital ties to their alien spouses are severed by
operation of the latter's national law. (Republic v. Manalo)

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