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Chapter 1. Requisites of Marriage (Title I, Family Code)

EXECUTIVE ORDER NO. 209

THE FAMILY CODE OF THE PHILIPPINES

I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and promulgate the Family Code of the Philippines, as follows:

Title I – Marriage

Chapter 1. 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)

Notes:

1) Definition.

a. 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.” (Family Code, Article 1)

2) Special contract. Marriage is a special kind of contract. Meaning, the legal provisions on contracts will apply to it by way of suppletory application if there are no specific provisions on the matter in the Family Code or Civil Code.

3) Permanent union. As worded or designed, marriage contemplates a permanent union, i.e. it would last the lifetime of either/both of the husband and wife. Notwithstanding, and if grounds are applicable, marriages may be subject to a judicial decree of annulment or judicial declaration of nullity.

4) Between a man and a woman. The phrase “between a man and a woman” – refers to a biological/anatomical male and female. (NB: Under the 1987 Constitution, marriage is not defined in terms of gender. It is via Article 1 of the Family Code that marriage is defined and limited to “a man and a woman”.)

5) Purpose. Per Article 1, the purpose of marriage is “for the establishment of conjugal and family life.”

6) Foundation of the family, inviolable social institution. The family is built on marriage. As the family is the most basic organization in a society, marriage is considered as an inviolable social institution “whose nature, consequences, and incidents are governed by law and not subject to stipulation.”

7) Rules on marriage stipulations.

a. Same; General rule: Not subject to stipulations. Since marriage is governed by law, it is generally not subject to stipulations. Thus, while it is a contract, the parties – in this case the husband and the wife – cannot agree to a marriage duration, such as a 10-year marriage. For other contracts, stipulating on a duration is valid and acceptable; however, in a marriage contact, such an agreement is void for being contrary to law, i.e. Article 1 of the Family Code.

b. Same; Exception: Prenuptial agreement. By way of exception, the husband and wife may stipulate on marriage settlements, a.k.a. prenuptial agreement, to fix their property relations or regimes, e.g. absolute community of property (ACP), conjugal partnership of gains (CPG), absolute separation of properties, or other forms of arrangement. Whatever property regime that they have chosen, it will subsist during the marriage and will be valid so long as it is within the rules set forth in the Family Code.

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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)

Notes:

1) Definition.

a. The essential requisites – are absolute requirements for the validity of a marriage. Without either or both of them, the marriage is void.

a. Same; Legal capacity. Legal capacity – refers to “the power to do acts with legal effects”: Civil Code, Article 37; also known as capacity to act: Ibid.

b. Same; Consent. Consent – refers to assent or agreement.

c. Same; Solemnizing officer. Solemnizing officer – refers to a duly authorized person who may officiate marriages. See: Family Code, Article 7; Local Government Code, Section 444 (b) (1) xviii, Section 455 (b) (1) xviii.

d. Same; In the presence of the solemnizing officer. This clause “in the presence of the solemnizing officer” – refers to giving consent in physical attendance and in front of a solemnizing officer. (NB: As of writing, virtual/online marriages are not allowed – yet.)

2) Consent, freely given. Consent is qualified, i.e. freely given. It is possible to give consent but not freely given, such as in a “shotgun wedding” where a party gives consent for fear of being shot or killed. In such a case, consent is vitiated which may result in the marriage being voidable.

a. Same; No consent at all. No consent at all is absolute lack thereof, such as persons not having knowledge or awareness that a marriage was going on involving them or that another person impersonated them during the celebration of the marriage. In this case, consent is absolutely non-existing resulting in a void marriage.

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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)

Notes:

1) Definition.

a. Formal requisites – refers to the solemnities or formalities required to be observed for the validity of a marriage. (To better understand this, read on solemnities/formalities of a contract.)

b. Marriage license – refers to the authority granted by the State allowing or permitting the marriage of the applicants who filed the marriage license.

2) Authority of solemnizing officer. Not all religious leaders are allowed to solemnize or officiate a marriage. Only those who are duly authorized may celebrate a marriage for it to be valid.

a. Written authority. Solemnizing officers should have a written authority from their church or religious sect and they are registered with the civil registrar general: Article 7[2], Family Code.

3) Valid marriage license. Marriage licenses have a validity of up to 120 days only: Article 20, Family Code. It automatically expires after the given period. Thus, it is critical to check whether the license is still valid on the day of the marriage celebration.

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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)

Notes:

1) Definitions.

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

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

c. 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. Same; 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.

b. Same; 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. Same; Does not affect marriage. A marriage will remain valid notwithstanding any defect in any essential requisite.

b. Same; 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.

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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)

Notes:

1) Definition.

a. Impediments – refer to obstacles, prohibitions, or limitations.

2) Legal age. 18 years of age is the minimum legal age to marry. However, parties should not be under ang legal impediments, e.g. Article 37 and 38.

3) Impediments. Impediments under Articles 37 and 38 result in a void marriage.

a. Same; Article 37: Incestuous marriages. Article 37 outlines incestuous marriages and thus prohibited/void, e.g. between ascendants and descendants, as well as siblings whether full/half-blood. (See Article 37 for more details.)

b. Same; Article 38: Marriages against public policy. Article 38 enumerates marriages that are contrary to public policy and thus prohibited/void, e.g. collateral blood relatives up to the fourth civil degree whether legitimate or illegitimate, step-parents and step-children, parents-in-law and children-in-law, etc. (See Article 38 for more details.)

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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)

Notes:

1) Definition.

a. Articulo mortis – means at the point of death.

b. Same; Marriage declaration. Marriage declaration – refers to the parties categorically declaring that they take each other as husband and wife.

c. Same; Marriage certificate. Marriage certificate – refers to the documentary evidence establishing the marriage between the parties.

2) No required formalities or religious rites. The article does prescribe not require specific solemnities, formalities, religious rites.

3) Personal appearance. Parties getting married should appear in person and before a solemnizing officer.

4) Rule; Two witnesses. There should be two witnesses who are of legal age and who will observe the couple during the marriage, particularly on the part that they take each other as husband and wife.

5) Marriage declaration. The marriage declaration between the parties should be reflected in the marriage certificate.

5) Marriage certificate. The marriage certificate is usually signed by the parties, the witnesses, and the solemnizing officer after the celebration of the marriage.

a. Same; Prenuptial agreement. If there is a prenuptial agreement, it will be attached or stapled to the marriage certificate. This is a critical step towards the validity of a prenuptial agreement as it has to be recorded/registered together with the marriage certificate within 15 calendar days from the celebration of marriage: Family Code, Article 23. Otherwise, the prenuptial agreement will be void.

b. Same; Recording with Local Civil Registrar. The solemnizing officer has the duty and responsibility to forward copies of the Marriage Certificate and the Prenuptial Agreement to the Local Civil Registrar (LCR). (NB: While the solemnizing officer has this duty, the parties should personally check the soonest or in the next few days whether these documents have been submitted as there are occasions when they are not submitted, e.g. oversight, accident, or death of the solemnizing officer. If the documents are not submitted within the 15-day period as provided in Article 23 of the Family Code, this may result in legal issues or problems, particularly with the prenuptial agreement. It is thus best for the parties to ensure that the recording has been done. If not, they themselves may submit the documents.)

6) Rules on articulo mortis.

a. Same; Point of death. For articulo mortis to be applicable, the party must be at the point of death. It must be based on good faith and reasonable belief on the party of the party availing of this benefit. Thus, if it there is bad faith on the part of the party benefitting from this rule, this may result in the inapplicability of the rule.

b. Same; Same; Witness to sign on behalf of party. If the preceding paragraph are satisfied, one of the witnesses may sign for and on behalf of the said party. This fact or circumstance should be attested to by the solemnizing officer.

c. Same; Same; Solemnizing officer. Since solemnizing officers are the ones officiating, they are not allowed by this provision to sign for and on behalf of the said party – because of a conflict of interest.

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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 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)

Notes:

1) Mayor. A city/municipal mayor is also a solemnizing officer. (Local Government Code, Section 444 (b) (1) xviii, Section 455 (b) (1) xviii)

2) Registry of solemnizing officer. The Philippine Statistics Agency has a registry of solemnizing officers called the Solemnizing Officers Information System (SOIS).

3) Incumbent judges or justices. Their authority of incumbent judges or justices is qualified by the phrase “within the court’s jurisdiction.” For lower courts of the judiciary (e.g. Regional Trial Courts, Metropolitan/Municipal Trial Courts, and their equivalents), the judges are limited to the jurisdiction of the region or city which is covered by their respective courts. For appellate courts (e.g. Court of Appeals and Supreme Court), the jurisdiction is nationwide.

4) Priest, rabbi, imam, or minister. The authority of these religious leaders is qualified by several requirements:

(a) They must be duly authorized by their church or religious sect to solemnize marriages;

(b) They are registered with the civil registrar general (or the Philippine Statistics Authority);

(c) They are acting within the limits of the written authority granted by their church or religious sect (emphasize on: written authority, which means the authority should be in writing and not just verbally granted); and

(d) They can only solemnize a marriage if one of the contracting parties belongs to their church or religious sect.

5) Ship captain or airplane chief. Ship captains or airplane chiefs may only solemnize marriage in case of articulo mortis between passengers or crew members, whether the ship/plane is in transit, or at a stopover or ports of call.

a. Same; Article. 31, Family Code. “A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.” (Ibid.)

6) Military commander. The authority of these military commanders is qualified by several requirements:

(a) They must be a commissioned officer cf. Article 32);

(b) They must be a commander of a unit to which a chaplain is assigned;

(c) The chaplain is absent; and

(d) There is or it is within a military operation (cf. Article 32); and

(e) Either one/both of the parties are in articulo mortis.

NB: The military commanders authority extends to both members of the armed forces or civilians. (Family Code, Article 32)

a. Same; Article 32, Family Code. “A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.”

(5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a)

7) Consul-general, consul or vice-consul. The authority of the consul-general, consul, or vice-consul is qualified by the requirement that both parties must be Filipino citizens.

a. Same; Article 10, Family Code. “Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official.” (Ibid.)

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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)

Notes:

1) Rules on venue of marriage ceremony.

a. Same; General rule: Public ceremony. This article requires that the marriage be solemnized publicly and thus specific locations depending on the solemnizing officer.

b. Same; Exceptions: Other venues, when allowed. By way of exceptions, the following venues are allowed:

(1)  Articulo mortis marriages;

(2) Remote places in accordance with Article 29 of this Code; or

(3) By written request from the parties to the solemnizing officer, in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect.

2) No secret wedding. Considering the above requirements of a public celebration of marriage, marriages done in secrecy are not recognized. Further, it should be noted that application for a marriage license requires publication or notice to the public. Thus, it is unlikely that marriages may be kept a secret from the public.

a. Same; Rationale. The reason why secret marriages are not possible is because there is public interest in marriage between two people due to the legal effects that may be produced. For instance, individuals who have subsisting marriages cannot marry another person. With respect to properties, if there is no prenuptial agreement, marriages lead to the combination of the assets and even liabilities resulting in conjugal assets and liabilities. This may affect third parties, such as creditors or investors, who contracted with one of the parties on the basis of them being single or unmarried.

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Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a)

Notes:

1) Definition.

a. Marriage license – see Article 3 above.

2) Rules on marriage license.

a. Same; General rule: LCR with jurisdiction. It is the LCR which has jurisdiction of where either of the contracting parties habitually resides that will issue a marriage license.

b. Same; Exceptions: Marriages exempted from marriage license. The following marriages are exempted from the license requirements:

(1) Articulo mortis marriages – even if the ailing party subsequently survives (cf. Article 27);

(2) Remote residence (cf. Article 28);

(3) Marriages among Muslims or among members of the ethnic cultural communities (cf. Article 33); and

(4) 5-year cohabitation of a man and a woman who have no legal impediment to marry each other (cf. Article 34).

3) Local Civil Registrar. In the application process, the LCR shall publicly post in conspicuous places the marriage license applied for by the parties.

a. Same; Reason. This is to give notice and opportunity to those who may have issues or concerns with marriage, e.g. spouses of a subsisting marriage, their relatives, creditors, investors, and third parties who have interest therein.

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Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a)

Notes:

1) Only between Filipino citizens. The authority of the consul-general, consul, or vice-consul is limited only to marriages between Filipino citizens. Thus, they are not empowered to solemnize a marriage where one of the parties is a foreigner.

2) Duties of the consul officials.

(a) Issuance of a marriage license;

(b) Duties of the Local Civil Registrar, e.g. recording and safe-keeping of marriage records and licenses; and

(c) Duties of the solemnizing officer, e.g. officiate or solemnize the marriage, sign marriage certificate, and ensure recording thereof the prenuptial agreement, if any.

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Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which shall specify the following:

(1) Full name of the contracting party;

(2) Place of birth;

(3) Age and date of birth;

(4) Civil status;

(5) If previously married, how, when and where the previous marriage was dissolved or annulled;

(6) Present residence and citizenship;

(7) Degree of relationship of the contracting parties;

(8) Full name, residence and citizenship of the father;

(9) Full name, residence and citizenship of the mother; and

(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years.

The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a)

Notes:

1) Definition.

a. Sworn application – means that the document is under oath or notarized.

2) Marriage license application. This article refers to the sworn marriage license application that must be filed separately by the parties with the LCR where one of them habitually resides.

3) Previous marriage. There is an active disclosure requirement for any previous marriage, whether dissolved or annulled, in the application. This is critical because, if a judgment or decree dissolving or annulling the marriage is not recorded with the LCR, or the conjugal properties not having been partitioned and distributed between the spouses and presumptive legitimates not being forwarded to the children, this may result in the subsequent marriage being declared void. (See: Article 52)

a. Same; Art. 52, Family Code. “The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children’s presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons.”

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Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his birth or baptismal certificate or a certified copy of either because of the destruction or loss of the original or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality.

The presentation of birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a)

Notes:

1) Original birth certificates; In default, baptismal certificates. An original copy of the birth certificates of the parties is one of the supporting documents in the application for a marriage license. If they are unavailable, baptismal certificates may be provided.

a. Same; Same; In default, Current residence certificate or other LCR-instrument. If for some reason both the birth certificates and baptismal certificates are unavailable, such as the lapse of 15 days from demand from anyone who has custody over them, an applicant may provide instead a current residence certificate or an instrument drawn up and sworn to before the LRC or any public official authorized to administer oaths.

b. Same; Same; Same. The sworn instrument referred to in the preceding paragraph must have a declaration of two witnesses of legal age attesting to the contracting party’s full name, residence, citizenship, birth date, birth place, as well as the latter’s parents, if known. In terms of preference, the nearest kin of the contracting parties is preferred. If unavailable, persons of good reputation the province or the locality may serve as witnesses.

c. Same; Rationale. The rationale for having substitutes in case of unavailability of the original birth certificates is due to various reasons, such as non-recording of birth, late registration issues, loss or destruction of the records such as fire burning the records of the LCR, and so on.

2) Parents of contracting parties. If the original birth certificates are unavailable, and it comes down to presenting baptismal certificates, this will no longer be necessary if the parents of the contracting parties personally appear before the concerned LCR and attest under oath as to the lawful age of the parties as provided in the application.

a. Same. Paragraph 2 of this article should be read together with paragraph 1 which provides that presentation of original birth certificates is sufficient by itself. Meaning, if the parties are able to present their original birth certificates, there is no longer any need for presentation of baptismal certificates. The baptismal certificates are only substitutes if the original birth certificates are not available.

3) Local Civil Registrar. Similar to the preceding paragraph, the presentation of baptismal certificates (in case the original birth certificates are not available) will no longer be necessary if the LCR is satisfied that the contracting parties are of legal age by merely looking at their personal appearances.

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Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage.

In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a)

Notes:

1) Active disclosure of previous marriage. The Family Code is full of repeated directives or instructions on the active disclosure of previous marriages, as well as proof of their dissolution. Non-compliance with this disclosure may affect the validity of a marriage, particularly if it was later on discovered that the previous marriage was still subsisting.

a. Same; Rationale. As previously discussed, there are many legal effects that results from two individuals getting married – not only for them but also for third persons who may be affected, e.g. creditors, investors, etc.

2) Death certificate or judicial decree. If a party has already been previously married, birth or baptismal certificate is no longer required as the previous marriage is already proof of his legal age to marry and other related personal information, such as name and citizenship. Instead, this party will be required to show either:

(a) Death certificate of the deceases spouse;

(b) Judicial decree of absolute divorce for foreign spouses who obtained divorce overseas; or

(c) Judicial decree of annulment of previous marriage (related to voidable marriages); or

(d) Judicial declaration of nullity of previous marriage (related to void marriages).

a. Same; In default, Affidavit. If for some reason the death certificate cannot be secured, a contracting party may execute an affidavit setting for the circumstances, his/her actual civil status, and the death of the deceased spouse.

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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 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)

Notes:

1) Definition.

a. Emancipation – refers to reaching the age of majority or legal age, and thus resulting in the person having full capacity to act, as well as being completely liable for their actions. (NB: 18 years old is the legal age in the Philippines.)

2) 18 years old and up to 20 years old. While the article states “between the ages of eighteen and twenty-one”, it is submitted that this should be read as: 18 years old and up to 21 years old. Otherwise, it would be absurd not to require parental consent for 18 years old but instead require those older, such as those who are 19 and 20. The law abhors absurdity.

a. Same; Up to 20 years old. Whether it is up to 20 or 21 years old, it is submitted that it should only be up to 20 years old. The law states between 18 and 21, which necessarily means that it is up to 20 years old which is between 18 and 21.

2) Parents or those who have legal charge over them. The consent should be obtained in the following order:

(a) Father;

(b) Mother;

(c) Surviving parent or guardian; or

(d) Persons having legal charge of them

a. Order of precedence. The above list is in the order of precedence. Meaning, the decision of the one with the precedence will outweigh the rest. For example, a father’s consent outweighs the mother’s assent. Hence, if the father’s consent is sufficient even if the mother is not in agreement. Conversely, if the father refuses or withholds consent, then it will be followed even if the mother assents.

b. Same; Both father and mother, not required. There is nothing in the article requiring the parental consent of both parents. The phrase “in the order mentioned” clearly shows the intention of order of precedence as discussed in the immediately preceding paragraph.

3) Written parental consent. Written parental consent is necessary for contracting parties who are 18 years old and up to 20 years old. This consent is part of the supporting documents in the application for marriage license.

a. Same; Written manifestation or notarized affidavit. The written parental consent may be personally manifested either via:

(1) Written manifestation by the interested/concerned party who shall personally appear before the LCR; or

(2) Notarized affidavit made in the presence of two witnesses.

b. Same; Same; Recorded in application. For the written manifestation, it shall be recorded on both the marriage license applications filed separately by the parties. In case of the notarized affidavit, it shall be attached to the mentioned applications.

4) Critique: On the need for parental consent. This article requiring parental consent runs counter to the concept of 18 years old already becoming emancipated. The concept of emancipation is that a minor upon reaching the age of majority or legal age will no longer be subject to any legal restraint in his capacity to act. They can fully enter into a contract, such as marriage, and be completely responsible for the consequences.

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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)

Notes:

1) 21 years old and up to 24 years old. While the article states “between the ages twenty-one and twenty-five”, it is submitted that this should be read as: 21 years old or over and up to 24 years old. This is to align with the provision on requiring parental consent for 18 years old or over and up to 20 years old.

a. Same; Up to 20 years old. Whether it is up to 24 or 25 years old, it is submitted that it should only be up to 24 years old. The law states between 18 and 21, which necessarily means that it is up to 24 years old which is between 21 and 25.

2) Written parental advice. For 21 years old or over and up to 24 years old, they have to obtain a written parental advice about the intended marriage from their parents or guardians.

a. Same; Proof. To prove that advice has been sought, the following shall be attached to the marriage license application:

(1) Sworn statement by the contracting party – on the advice having been obtained; and, if available,

(2) Written advice from the parents or guardians.

NB: Written advice is not an absolute requirement, and thus optional. In referring to the written advice, the provisions state “if any”, which means that if it so happens that there was one given, the parties may attach it to their application if they want.

b. Same; If none or unfavorable, 3-month waiting time. If the parental advice is not obtained or if it is unfavorable, there is a 3-month waiting time or cooling off period reckoned from the completion of the publication of the application. Further, such refusal shall be stated in the sworn statement by the concerned contracting party.

3) Critique: On the need for parental advice. As with written parental consent, the need for parental advice seems to run counter to the concept that individuals who are 21 years old or over and up to 24 years old are already fully fledged adults who are completely capacitated to act. They are expected to understand the rights and obligations that come with marriage.

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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)

Notes:

1) Definition

a. Marriage counselling certificate– refers to a document certifying that an individual intending to be married has undergone marriage counselling from a priest, imam, or minister who are authorized to solemnize marriage, or a marriage counselor duly accredited by the Government. (Family Code, Article 16)

2) Separate requirement. The marriage counselling certificate is in addition to and on top of the requirements of written parental consent and/or written parental advice.

3) Who issues marriage counselling certificate. The following may issue a marriage counselling certificate:

(1) Priest, imam or minister authorized to solemnize marriage under Article 7 of the Family Code; or

(2) Marriage counselor duly accredited by the proper government agency.

4) Effects of failure to attach, 3-month waiting time. If the contracting parties fail to attach a marriage counselling certificate, the LCR shall suspend the issuance of the marriage license for a period of three (3) months reckoned from the completion of the application’s publication.

a. Same; Valid marriage, administrative sanctions. If the preceding 3-month suspension is not observed and the valid license is issued, this will not affect the marriage which will remain valid. However, the concerned issuing officer shall be subject to administrative sanctions/penalties for non-compliance with this provision.

5) Presence at counselling by one who does not need parental consent or parental advice. The contracting party who is not required to present parental consent or parental advice, is still required to be present at the marriage counselling.

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Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

Notes:

Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications.

The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The marriage license shall be issued after the completion of the period of publication. (63a)

1) LCR Notice. After the properly completed marriage license application is filed, the LCR will prepare a notice containing the full names and residences of the applicants, as well as other data provided in the application.

2) Publication of notice. The LCR shall post the notice to ensure publication of the marriage license application.

a. 10 consecutive days. The posting shall run for a period of 10 consecutive days, including weekends.

b. Conspicuous place and accessible to the general public. The notice shall be posted on a bulletin board located outside of the LCR office in a conspicuous place within the building and accessible to the general public. The purpose being is to maximize exposure of the notice so that that anyone who may be affected will have the opportunity to intervene or notify the LCR of any impediments.

c. Notify LCR of impediments, if any. If there are impediments, these should be notified or made known to the LCR. Some of these impediments include, but are not limited to, fraud in the names or ages of the individuals intending to get married, a previous but still subsisting marriage, failure to record partition and distribute properties in a previous marriage that has been dissolved and non-delivery of presumptive legitimes to the children thereof, and so on.

3) Issuance of marriage license. After the lapse of the 10-day publication, the LCR shall issue the marriage license. In case of any impediment that was reported to the LCR, see the next article.

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Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interest party. No filing fee shall be charged for the petition nor a corresponding bond required for the issuances of the order. (64a)

Notes:

1) Reported impediments. The LCR will note down the particulars of any reported impediments and the findings thereon in the marriage license application. However, the LCR will nonetheless proceed with the issuance of the license after the lapse of the 10-day publication period, unless otherwise ordered “by a competent court at his own instance or that of any interest[ed] party”.

a. Same; LCR’s authority. The LCR is an agency, and not a quasi-judicial body. Thus, it does not have the authority to hear and adjudicate a case. Accordingly, it cannot decide on any legal impediments that may have been reported. Its duty then is simply to annotate these impediments and its findings on the matter.

b. Same; Court order. If there is a court order issued to the LCR related to the issuance of a marriage license, such as a temporary restraining order or an injunction, then the LCR is legally bound to comply with this order. Otherwise, the LCR’s refusal to comply will result in a direct contempt of court which carries penalties, including imprisonment.

b.1. No filing fee, no bond. To avoid placing any obstacles to obtaining a court order, the provision does away and makes it not a requirement to pay filing fees or bond for anyone filing a court petition seeking to obtain a temporary restraining order or an injunction. This is due to the public interest involved in a marriage between individuals, particularly if there is a serious ground, such as the subsequent marriage being bigamous due to a previous but still subsisting marriage.

c. Same; Order by an “interest party”. While the provision states order of “any interest party”, it appears that there may be a typo and instead it should be read as “any interested party”. The order that may be contemplated here is this that of a cease-and-desist letter by an interested party (e.g. a spouse from a previous but subsisting marriage) against the LCR. If that is the case, this provision may be used as the legal basis by the interested party and/or the LCR to prevent issuance of the marriage license.

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Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of said license. It shall, however, be issued free of charge to indigent parties, that is those who have no visible means of income or whose income is insufficient for their subsistence a fact established by their affidavit, or by their oath before the local civil registrar. (65a)

Notes:

1) Rules on LCR fees.

a. General rule: Fees. In relation to the issuance of a marriage license, the LCR is authorized to collect fees as may be prescribed by law or regulations. However, no other payments shall be collected in the form of fees or taxes of any kind related to the issuance of the marriage license (e.g. documentary stamp tax).

b. Same; Exception: Indigents. For indigents, no fees shall be charged against them. To support their status as indigents, they may: (a) execute an affidavit attesting to the fact that they have no visible means of income or their income is insufficient for their subsistence; or (b) take an oath before the LCR attesting to the same.

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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)

Notes:

1) Anywhere in the Philippines. Once issued, the marriage license is valid in any part of the Philippines. Hence, even if a party applied for and was granted a license in Manila City, they may celebrate their marriage in Cebu City or Davao City.

2) 120-day validity; Automatic expiration. The marriage license has a 120-day validity and automatically expires or cancels at the expiration date. The expiration date is required to be stamped in bold character on the face of every license.

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Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.

Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a)

Notes:

1) Rules on foreigners getting married in the Philippines.

a. For reign nationals. For citizens of a foreign country who intend to get married in the Philippines, they are required to submit a certificate of legal capacity to contract marriage issued by their respective diplomatic or consular officials.

b. Stateless persons/refugees. For stateless persons or refugees who intend to get married in the Philippines, they are required to submit an affidavit stating the circumstances showing such capacity to contract marriage.

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Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state:

(1) The full name, sex and age of each contracting party;

(2) Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage;

(4) That the proper marriage license has been issued according to law, except in marriage provided for in Chapter 2 of this Title;

(5) That either or both of the contracting parties have secured the parental consent in appropriate cases;

(6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and

(7) That the parties have entered into marriage settlement, if any, attaching a copy thereof. (67a)

Notes:

1) Definition.

a. Marriage certificate – refers to documentary evidence attesting to the fact of marriage between individuals.

2) This article outlines the contents of a marriage certificate.

a. Marriage settlement. The critical part in the marriage certificate is the content with respect to a marriage settlement. As provided in the article, it has to be stated in the marriage certificate if there is any marriage settlement (a.k.a. prenuptial agreement) entered into between the parties and, if there is one, it has to be attached or stapled together with the certificate. Both the marriage certificate and the prenuptial agreement have to be submitted and recorded with the LCR. While it is primarily the duty of the solemnizing officer to make the submission, it is strongly recommended that the husband and wife ensure that the solemnizing officer has performed such duty by checking/verifying with the LCR as there is a 15-day deadline of its submission. If the documents have not yet been submitted for recording, the couple may make the submission with the LCR to avoid any issues with the recording of the marriage, as well as issues on the validity of the prenuptial agreement. For clarity, if the prenuptial agreement is not submitted together with the marriage certificate and not recorded, the prenuptial agreement will not be valid and thus will not affect third parties.

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Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Article 8. (68a)

Notes:

1) Duties of the solemnizing officer. The solemnizing officer has the following duties:

(a) Solemnize the marriage;

(b) Furnish the contracting parties the original of the marriage certificate;

(c) Send duplicate and triplicate copies of the marriage certificate within 15 days from marriage to the LCR where the marriage was celebrated; and

(d) Safe keep the quadruplicate copy of the marriage certificate, the copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in place other than those mentioned in Article 8 of the Family Code, i.e. written request by the parties of their preferred venue.

a. Same; If solemnizing officer fails to submit documents. There are cases when the solemnizing officer fails to submit the marriage certificate and the prenuptial agreement, if any. For instance, some solemnizing officers simply forget or there is oversight on their end; in some cases, they get sick, injured, or die. It is thus critical that the husband and wife confirm/verify with the solemnizing officer if the documents have been submitted and likewise verify the same with the LCR. If the documents remain unsubmitted, the couple may make the submission themselves.

2) LCR where marriage was celebrated. The marriage certificate and prenuptial agreement, if any, should be submitted to the LCR where the marriage was celebrated. This is important to note as the LCR who issued the marriage license (e.g. Puerto Princessa City) may be different from the LCR where the marriage was celebrated (e.g. Tacloban City).

a. Same; LCR receipts. The receiving LCR is required to issue proper receipts to show that submission has been done.

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Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n)

Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n)

Notes:

1) Duties of the LCR. The Local Civil Registrar has the following duties:

(a) To receive and process marriage license applications (Family Code, Articles 11, 12);

(b) To require presentation of original birth certificates or, in default, baptismal certificate (Ibid., Article 12);

(c) To verify parental consent, if applicable (Ibid., Article 14);

(d) To verify parental advice, if applicable (Ibid., Article 15);

(e) To verify marriage counselling certificate (Ibid., Article 16);

(f) To prepare the notice related to the marriage license application (Ibid., Article 17);

(g) To post the notice on a bulletin board located outside of the LCR office in a conspicuous place within the building and accessible to the general public (Ibid);

(h) To require foreign nationals intending to marry in the Philippines the submission of a certificate of legal capacity to contract issued by a foreign national’s diplomatic or consular official (Ibid., Article 21);

(i) To require stateless persons or refugees intending to marry in the Philippines the submission of an affidavit stating the circumstances showing such capacity to contract marriage (Ibid., Par. 2, Article 21);

(j) To note down legal impediments that were reported including findings thereof (Ibid., Article 18);

(k) To comply with an order from a competent court or interested party directing the non-issuance of the marriage license (Ibid.,);

(l) To collect fees related to the issuance of the marriage license (Ibid., Article 19);

(m) To issue a marriage license (Ibid., Articles 19 and 20);

(n) To prepare documents related to the marriage license applications, marriage license, and related thereto (Ibid., Article 24);

(o) To administer oaths to all interested parties without any charge (Ibid.,);

(p) To enter all marriage license applications and issuance of marriage license in a registry book strictly in the order in which the same are received (Ibid., Article 25);

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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. (17a)

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)

Notes:

1) Rules on foreign-celebrated marriages.

a. General rule: Foreign marriages are valid in the Philippines. All marriages celebrated outside the Philippines are valid here so long as they were valid in the foreign country where the solemnity was made.

b. Exception: Prohibited marriages. Even if valid in foreign countries, the following marriages are not valid in the Philippines as they are prohibited:

(1) Family Code, Article 35 (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

(2) Ibid., Article 35 (4): Those bigamous or polygamous marriages not failing under Article 41;

(3) Ibid., Article 35 (5): Those contracted through mistake of one contracting party as to the identity of the other;

(4) Ibid., Article 35 (6): Those subsequent marriages that are void under Article 53;

(5) Ibid., Article 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.

(6) Ibid., Article 37: 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.

(7) Ibid., Article 38: 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 … (9) Between parties where one, with the intention to marry the other, killed that other person’s spouse, or his or her own spouse.

2) Rules on foreign-divorce decrees.

a. Regardless of who applies for divorce decree. Article 26(2) applies to mixed marriages where the divorce decree is: (i) obtained by the foreign spouse; (ii) obtained jointly by the Filipino and foreign spouse; and (iii) obtained solely by the Filipino spouse. (Abel v. Rule, G.R. No. 234457, May 12, 2021, citing Galapon v. Republic, G.R. No. 243722, January 22, 2020)

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