Essential Requisites of Marriage, A2 Family Code

1. Concept

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)

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

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

Consent – refers to assent or agreement.

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.

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. 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.