Absence of Requisites of Marriage, A4 Family Code

1. Concept

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 not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)

Absence – refers to lacking, missing, or non-existing.

Void ab initio – means no legal effect from the very beginning.

Defect – means a requirement exists but is vitiated or has problems, i.e. defective. (e.g. defective consent in a “shotgun wedding”)

2.Rules on lack/absence of any of essential or formal requisite.

a. General rule

Void ab initio. Lack/absence of any of the essential or formal requisites of a marriage shall make it void from the beginning.

1) Exception

Article 35(2), Family Code. By way of exception: “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…” (Ibid.)

3. Rules on defect of any essential requisite

a. Does not affect marriage

A marriage will remain valid notwithstanding any defect in any essential requisite.

b. Liabilities

Civil, criminal, and administrative liabilities may be imposed against the responsible parties for the defect.

NB: There are no similar provisions with respect to a defect in the formality, particularly on the liabilities.