AUTHORITY OF THE SOLEMNIZING

OFFICER

Marriages solemnized by any person

not legally authorized to perform marriages
are void 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. (Art.35,par.2, FC)
NOTE:
1. Under the Family Code, mayors are excluded
from the list of those who are authorized to
solemnize marriage. Later, or under the New
Local Government Code, the mayors are now
authorized to solemnize marriage. (Sec.444,
XVIII, LGC)
2. Any incumbent member of the Judiciary may
solemnize marriages within the court’s
jurisdiction.
3. If the marriage is celebrated by a priest, imam or
minister of a church, it is required that at least
one of the contracting parties belongs to the
solemnizing officer’s church or religious sect.
(Art.7,par.2, FC)
4. 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 of the
consul-general, EXCEPT in cases of marriages in
articulo mortis, 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. (Art.8,FC)
MARRIAGE LICENSE

Without a marriage license, the

marriage is void. But for as long as there is a
marriage license, it is immaterial if it is illegally
or irregularly obtained. The marriage is valid
just the same but the guilty parties shall be
civilly, criminally and administratively liable.
(Art.4.par.3,FC)
FORMALITIES OF MARRIAGE
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 (2) 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. (Art.6, FC)
VOID AND VOIDABLE MARRIAGE
The distinction between void and voidable
marriage as to its concept and its effect are as
follows:
VOID VOIDABLE
1. It is void ab initio. It is 1. The marriage is
void from the very valid until
beginning and therefore it is annulled.
no marriage legally exists.
2. The marriage can never 2. The marriage
be ratified. can be ratified
by free cohabi-
tation.
3. No conjugal partnership 3. There is conjugal
is created. partnership unless the marriage
settlements provided
otherwise
4. There is no need for 4. A judicial
a judicial declaration decision is
that the marriage is void. needed to annul
the marriage.
5. The validity of the 5. The validity of
marriage may be marriage may
attacked even afternot be attacked
the death of one party. after one party dies.
6.The status of children 6. The status of
born out of marriages children born out
that are void ab initio- of voidable
They are illegitimate marriages:
children except as 1. Those conceived
provided under Art.54 before a decree
of the FC which states: of annullment
Art.54. Children conceived are legitimate
or born before the judgement children;
of annulment or absolute 2. Those conceived
nullity of the marriage under after a decree of
Art.36 has become final and annulment are
executory shall be considered illegitimate children
legitimate. Children
Conceived or born of
The subsequent marriage
Under Art.53 shall likewise be
legitimated.
CONCEPT
The concept of marriage both in Roman law
and in the New Civil Code are fundamentally
the same. It is regarded as a permanent union
of a man and a woman. It is only in that sense
that the concept is similar for while the Romans
regard marriage as a union of a man and a
woman in a lifelong consortium, the New Civil
Code came out with a more strict and
conservative concept and definition of
marriage. Still later, the New Family Code
amended this definition.
REQUISITES OF A VALID MARRIAGE
*Article 52, New Civil Code
Marriage is not a mere contract but an
inviolable social institution. Its nature,
consequences and incidents are governed by
law and not subject to stipulation, except that
the marriage settlements may, to a certain
extent, fix the property relations during the
marriage. (n)
 *Article 1, New Family Code
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,
consequence 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)
 *Article 53, New Civil Code
Art. 53. No marriage shall be solemnized
unless all these requisites are complied with:
1. Legal capacity of the contracting parties;
2. Their consent, freely given;
3.Authority of the person performing the
marriage; and
4. A marriage license, except in a marriage of
exceptional character. (Sec.1a, Art.3613)
 *Articles 2 and 3, New Family Code
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. (52a)
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 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)

Hence, unlike an ordinary contract, the parties, both

under the New Civil Code and the Family Code, cannot
just terminate their marriage as they wish, for the
consequences and incidents of marriage are governed
by law. Notaries Public who draw or execute
documents destroying the inviolabilty of marriage are
subject to disciplinary action.
ESSENTIAL REQUISITES
“Art.2. No marriage shall be valid, unless
these essential requisites are present:
1.Legal capacity of the contracting parties
who must be male and a female;
2.Consent freely given in the presence of
the solemnizing officer.”
 FORMAL REQUISITES
“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)
 The absence of any of the said essential
requisites renders the contract of marriage void
ab initio except as may be provided in Section
35(2) of the Family Code.
Hence, it is required that:
1. The contracting parties must be a man and a
woman who should have the legal capacity to
enter into a contract of marriage. This means
that both of them must at least be 18 years of
age, and that they are not legally prohibited
from marrying.
 2. Both of them must give consent to the
marriage. It is their consent, not the consent of
the parents that is referred to in Article 2(1).
 1. ABSENCE OF LEGAL AUTHORITY OF
THE SOLEMNIZING OFFICER TO
SOLEMNIZE MARRIAGE
2. ABSENCE OF MARRIAGE LICENSE
Renders the marriage void except when the
marriage is contracted with either or both
parties believing in good faith at the time of the
marriage that the solemnizing officer had the
legal authority to do so.
RENDERS THE MARRIAGE VOID
A marriage ceremony must publicly take
place under said conditions but the marriage
ceremony may be solemnized elsewhere in the
following cases:
1. In case of marriages contracted at the point
of death (articulo mortis);
2. In case of marriages in remote places; or
3. In case both parties request the solemnizing
officer in writing to that effect. (Art.8, FC)
1. Absence of any of essential or formal
requisites;
2. Defects in any of the essential requisites;
and
3. Irregularity in the formal requisites
B. Defects in Any of the Essential Requisites

*It shall render the marriage voidable as provided

in Article 45.

Examples:
1. Lack of parental consent.
2. Consent of a party is vitiated.
C. Irregularity in the Formal Requisites
* It shall not affect the validity of the marriage
but the party or parties responsible for the
irregularity shall be civilly, criminally and
administratively liable.
Examples:
1. Lack of legal age of the witnesses.
2. Presence of only one witness.
3. Failure to comply with the procedural
requirements in Article 12.
4. Non-absence of the 3-month period as
provided in Article 15.
5. Requirement of notice in Article 17 is not
complied with.
Note:
There is a need of consent to the marriage to
be given, in the order mentioned, by the father,
the mother, the surviving parent or guardian,
or persons having legal charge of them.
The consent shall be manifested in writing
by the interested party, who personally
appears before the local civil registrar, or in the
form of an affidavit made in the presence of
two witnesses and attested before any official
authorized by law to administer oath. (Art.14,
FC)
REQUIREMENT IF THE PARTIES ARE
BETWEEN 21 AND 25
The party concerned shall be obliged to ask
parental advice.
If said advice is not obtained, or if such
advice is not favorable, or of the parent or
guardian concerned refuses to give any advice,
no marriage license shall issue till after three
(3) months following the completion of
publication of the application for marriage
license. (Art.15, FC)
Effect if Marriage is Celebrated within the Three
(3) Months Period on the Basis of a Marriage
License Issued in Violation of the said Period

The marriage is valid but the parties

responsible of the irregularity shall be civilly,
criminally and administratively liable. In other
words, the same is treated merely as an
irregularity. (Art.4, FC)
 Under Article 35 of the Family Code, 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;
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.
The following marriages are void:
1. Void because of psychological incapacity

“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.”
Example: Republic vs. CA, 198 SCRA 268
2. Void because of Incestuous relationship
Art. 37. Marriages between the following are
incestuous and void from the beginning,
whether the 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;
3. Void for reasons of public policy.
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 adopting
parent and the adopted child;
6. Between the surviving spouse of the adopted
child and the adopter;
7. Between an adopted child and a legitimate
child of the adopter;
8. Between adopted children of the same
adopter; and
9. Between parties where one, with the
intention to marry the other, killed the other
person’s spouse or his or her own spouse.
1. Is there a need to file an action for declaration of
nullity of the said marriage? (Art.36)
Answer: Yes.
2. Is there a prescriptive period within which said
action shall be filed?
Answer: The action for declaration of nullity of
marriage under Art.36 of the FC shall prescribe
in ten (10) years after its celebration. In other
instances, the action or defense for the
declaration of absolute nullity shall not
prescribe.
 A voidable marriage is one which is valid until it
is annulled for any of the following cases,
existing at the time of the marriage:
1. NO AGE REQUIREMENT- That the party in
whose behalf it is sought to have the marriage
annulled was eighteen (18) years of age or over
but below twenty-one (21) and the marriage was
solemnized without the consent of the parents,
guardian or person having substitute parental
authority over the party, in that order, unless,
after attaining the age of twenty-one (21), such
party freely cohabited with the other and both
lived together as husband & wife.
2. UNSOUND MIND- That either party was of
unsound mind, unless such party after coming
to reason, freely cohabited with the other as
husband and wife.
3. FRAUD- 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. FORCE, INTIMIDATION AND UNDUE
INFLUENCE- That the consent of either party
was obtained by force, intimidation or undue
influence, unless the same having disappeared
 or ceased, such party thereafter freely cohabited
with the other as husband and wife.
5. IMPOTENCE- That either party was physically
incapable of consummating the marriage with
the other, and such incapacity continues and
appears to be incurable.
6. SEXUALLY-TRANSMISSIBLE DISEASE - That
either party was afflicted with a sexually-
transmissible disease found to be serious and
appears to be incurable.