1st , 2nd and 3rd Recording

Family Code
August 3, 1988- effectivity
Before, the Law on Marriage was incorporated in the
New Civil Code.
Art 1.
Marriage is a special contract of permanent union,
Characteristic:
Special Contract
Permanent union. It is not a license that is renewable
every year.
Its a lifetime commitment between a man and a
woman, entered into in accordance with law. For the
purpose of establishing conjugal and family life.
Cannot be under stipulation except for marriage
settlements where property regime is mandatory.
Marriage is a status and contract.
Status:
Personal rights, duties and obligations. Personal affair
between the party. Personal obligation.
Entails property relations.
Contract:
Extinguished from ordinary contracts because it is a
contract deemed by law as a special kind of contract.
And it being a special kind of contract lies on the fact
that ordinary contract is private affair. Ordinary contract
follows a liberality of contracts.
General rule is that ordinary contract is a private matter
where parties can stipulate. On the other hand, Marriage
as a special contract, the parties are not free to stipulate.
The nature, consequence and incidence of marriage can
never be subject of stipulations of the parties but are
governed by law.
Ex. That is why if two contracting parties, the husband
and wife may agree that they are free to live with
another, they separate now. And then contract a
subsequent marriage, in their charge of bigamy they
cannot invoke the agreement with the other spouse
because marriage, its nature, incidence and
consequence can never be the subject of stipulation.
That is why one can be prosecuted of bigamy even if
you enter into an agreement with the other.
Similarly, if the husband and the wife agreed during the
existence of the marriage that they will not support each
other to each his own. No wife to support, no
obligation to do. If the other goes to court invoking that
the other spouse failure to support and do his

obligations, one cannot invoke the agreement. There is

nothing that prevents that party to enter into such an
agreement but the point is, this is not an agreement that
can be invoke in court because this goes against the
very essence of marriage. Support being one of the
essential obligations imposed to the contracting parties,
it cannot be bargained away, it cannot be subject of
stipulation.
Swapping partners, - cannot be invoke because it is in
contract with the very essence of marriage that is to
observe fidelity, loyalty with the other.
Any agreement that may be entered by the parties
during the marriage cannot be sanctioned by the court if
the agreements are in contrast with the very essence of
marriage. The only agreement spouses can enter into
that is recognised by the court is the agreement
pertaining to the property relations contained in Marriage
settlements because it now goes into the property
relations not the personal rights and duties between the
parties.
Marriage settlements agreement on what particular
property regime may govern their property relations.
Absolute community: expouses the idea that what is
mine is ours what is yours is ours.
Exclusive, Complete Separation of property regime:
parties exercise ownership over their exclusive
properties to each his own. This can be validly stipulated
upon by the parties because it is allowed by law.
But other than property relations, no other agreement
may be entered into by the parties regarding their
marriage.
Valid Marriage:
Presupposes two essential requisites and three formal
requisites.
Essential Requisites:
Art. 2:
1. Legal Capacity
2. Consent
Formal Requisites:
1. Authority of the Solemnizing Officer
2. Valid Marriage License
3. Valid Marriage Ceremony.
ESSENTIAL REQUISITES
Legal Capacity:
>matters:
When is one considered legally capacitated to enter
into marriage?

Art. 5: specific matters falling under legal capacity.

1. Sex
- Legal Capacity means that the parties to the
marriage must be male and female consistent with
Article 1 which defines marriage as a permanent union
between a man and a woman.

through congress implying that if congress passes a law

that allows change of sex through sex reassignment
surgery then why not, so legislation is Rommels remedy
his relief can be obtain in the house of congress and not
in the court because of the absence of a law authorizing
a change of gender by means surgical intervention.

Two gender recognise in our jurisdiction. Male and

Female. But when is a man a man and when is a
woman a woman?

But the principle that sex is determined at birth does

not apply if the person concerned is endowed with a
so called interesex anatomy. Happens in 1 every
10,000 or 18, 000, there is an individual endowed with
an interest anatomy.

ex. Rommel Silverio V

- The supreme court rule as to when the sex of an
individual is determined.

ex. Jennifer Cagandahan

Facts:

Facts:
Rommel, was born as a man but he underwent a sex
assignment surgery claiming that he is a female trapped
(imprisoned) in a mans body. He underwent the said
surgery and submitted himself to hormonal treatment,
breast augmentation and so on and so forth to transform
himself into a woman. And so to complete his happiness
he filed an action in court to correct his birth records,
praying to change his name from Rommel to Melly and
his gender from Male to Female.
Issue: Whether or not Rommel Silverio is entitled to
relief that is the change of his name and his gender.
Held:
When our family code defines marriage as a union
between a man and a woman obviously, it refers to only
two kinds of sex that of a male and a female. A female
sex is a sex that produces ovum and a male sex, is a
sex that produces spermatozoa to fertilise the ovum.
There is nothing in between that is the only kind of sex.
There are only two classification of gender. The gender
classification is determined at birth, how it is
determined? This is determined visually by the birth
attendant referring to the doctor or to the midwife who
assisted in the delivery of the child and the most
common factor in determining which sex classification
the child belongs is the validation of the genitalia. It is
the most conclusive factor to consider in the
determination.
It is determined at birth, and once a determination is
determined at birth this gender classification becomes
immutable and it cannot be changed even by surgical
intervention. So the Supreme court said, we dont have
any law. While we symphatize with the ordeal of Silverio,
the misery being a woman imprisoned in a mans body,
we can only commensurate over the misery but there is
simply no law that allows us to grant him the relief he
prays for. That is the ruling of the supreme court.
But the Supreme Court denying Rommel of the relief he
want, they gave him some hope. The supreme court
said, the remedy of Rommel is not through this court it is

Jennifer Cagandahan was determined as female, as a

matter of fact his certificate of live birth depicted her as
female, so obviously, the birth attendant determined her
to be a female. But as the years wore on, Jennifer slowly
acquired more male characteristic and on the contrary
her female characteristic slowly diminished that she had
no breast and she had no menstrual development. As
she grew older, her physical characteristic developed
into more of a male, or so when she reached the age of
majority, already capable of deciding for himself, he or
she filed a petition with the court for the correction of the
entries in live birth report specifically the correction
of his first name from Jennifer to Jeff and the
correction of her gender from female to male. Unlike
Silverio, Cagandahan was fortunate.
Held: The SC said that in so far as individuals or
persons endowed with intersex anatomy, any gender
classification made at birth is never permanent and it is
inconclusive what determines gender classification for
this kind of individuals depends from the choice of the
person concerned when that person comes with a good
reason if he thinks of what his or her gender.
*this only applies to persons with intersex anatomy.
this is a disorder.
Gender is determined at birth under general rule.
Exception there is when individual concerned posses an
interest anatomy in which case, its the choice of the
person concerned. That choice must be supported with
good reason.
**Jennifer developed more male characteristic than
female characteristics. Sufficient biological support.
Should be with good reason.
What is the sex of the individual prior to the choice?
Because the choice is made when the individual reach
the age of majority, the time they are endowed with the
capacity to act. Gender of the sex of the individual is
only temporary and not permanent subject to the choice
once it is made by the person concerned.
Supreme

Court

granted

the

petition

of

Jennifer

Cagandahan. He is now known as Jeff Cagandahan.

2. Age. At least they must be 18 years old.
3. Free from legal impediments
>when the law speaks of legal capacity, it does not only
refer to sex and age requirement but it refers to the
absence of any legal impediment. Meaning, the party
must not be only male and female, not only at least 18
years old they must also be free from legal impediments.

renders the marriage only

voidable
There is consent but
consent
is
defective
consent. Because it was
given under a price of
consent
like
force
intimidation etc.

Legal impediment by reason of relationship. The parties

should not be parent and children, brothers and sisters
because they have legal impediment by reason of
incestuous relationship, that is why under Article 37, any
marriage between parent and children, brothers sisters
is void for being incestuous. An incestuous marriage
lacks the requirement of legal capacity because there is
legal impediment.
Other legal impediment can be imposed by law itself,
meaning the law itself makes it a legal impediment.
Enumerated in Article 38, marriages declared void by
reason of public policy and these are void marriage
because the law itself declares them to be against public
policy. If the marriage happens to fall under this article,
this marriage is void because there is absence of legal
capacity. Absence of legal capacity because there is
presence of legal impediment.

Art. 53, the marriage declared void under Article 53, this
contemplates of a situation where parties previously
married and this marriage declared void by the court but
a decision of a court declaring a marriage is void and the
decision on the liquidation, partition and delivery of
presumptive legitemes, registry of property and that the
party contracts a subsequent marriage without
complying with said requirements under Article 53, that
subsequent marriage is void. This is void because of
legal impediment, the requirement imposed by law.
CONSENT
**consent freely given. The absent of consent renders
the marriage void because this is an absence of an
essential requisite of marriage.
Absence of consent is not the same as vitiated
consent.

Vitiated Consent

Consent

Different from a total

absence of Absence of
consent there is really no
consent.

ex.
Marriage
was
solemnised in jest
like a stage play. Not valid
marriage
because the parties did not
mean to
be bound by the act.
Marriage was solemnised
when there
is mistake in the identity of
the other.
ex. You are mistaken that
the man you
married is Pedro and it
turned out it
was the identical twin of
Pedro
there is totally absence of
consent
because in so far as youre
concerned
you
never
committed
yourself to the other
that is why under Article
35, it is void.

What are these legal impediments?

Article 40, when a subsequent marriage has been

entered into when the previous marriage have not been
legally dissolved and no court order obtain declaring the
first marriage as void, the subsequent marriage is void,
bigamous because the parties who failed to obtain
judicial declaration of nullity of marriage is not legal
capacitated because of legal impediment.

If absent, marriage is void

If the party entered into a contract of marriage for a

purpose other than establishment of a conjugal and
family life.
ex. Marriage for convenience.
Is there absent of Consent? Is it void for lack of
consent. This is answered in the case of:
ex. Republic of the Philippines V. Albios.
Facts:
A marriage between an american husband and a Filipino
wife. After the celebration of the marriage, they
immediately parted ways and the wife, the Fiipina filed
an action to declare her marriage void on the grounds
that their marriage was celebrated in jest declaring that
the purpose of the marriage was not really to establish a
conjugal and family life but only for convenience
particularly they agreed that the wife would pay the
husband $2000 in exchange for the husband helping the
wife to obtain american citizenship.
Issue: Whether or not the marriage is not purposely
intended to enter into for the purposes other than the
establishment of non other than conjugal and family life

can be declared void for lack of marital consent.

Held:
No. While the marriage admittedly was for purposes
other than the establishment of conjugal and family life,
there was obviously consent to the marriage.The SC
said, motive is irrelevant for the determination of
absence or presence of consent, the contracting parties
could have motives of their own, but it does not negate
the fact that the parties actually consented to the
marriage irregardless of their real purpose. The thing is
they purposely entered into the marriage.
The parties purposely entered into the marriage so that
the wife can acquire American citizenship, for the
american citizenship to be acquired by the wife, the
marriage has to be valid because citizenship is just an
effect of a valid marriage. If the marriage is not valid,
then citizenship will not result as a legal consequence of
the marriage. So when the parties entered into the
marriage it obviously contemplated of a valid marriage
so that the expected result of acquiring American
citizenship can be achieved.
Because it is incongruent to suppose that they wanted
the wife to acquire american citizenship on one hand
and on the other hand, intended a void one. It cannot be.
The SC said that by their intention, by the very purpose
of acquiring American citizenship of the wife, the parties
must have intended that their marriage should have
been valid in the first place. That is the logical reasoning
of the Supreme court in ruling that the marriage even if
entered into for purposes other than establishment of a
conjugal family life remain to be valid because there is
mutual consent freely given by the parties regardless of
their motive.

irregularity of any formal requisites will not effect the

validity of marriage but the person responsible of the
irregularity maybe subjected to criminal, civil or
administrative liability.
Defect refers to essential.
Irregularity refers only to formal requisites.
AUTHORITY OF SOLEMNIZING OFFICER:
Art. 7 enumerates persons who are authorised by
law to authorise marriage.
1. Any incumbent members of the judiciary
-refers to the judges of the lower courts and justices
of the higher courts.
**the authority of the members of the judiciary is only
limited to the courts jurisdiction so that the judge of cebu
city cant solemnise marriage in bohol because the
jurisdiction is limited, because the power of the judge is
limited to his jurisdiction.
Courts are created by law, and the law the creates a
particular law defines the territorial jurisdiction of a
particular sala. But if the incumbent member of the
judiciary if the justice, a member of the Appeallate court,
the Supreme court, court of tax appeals the Justices of
the Sandigan Bayan, the jurisdiction of the court is all
over the country and therefore the justice of the supreme
court if you want a Justice to solemnise your marriage
you can have your marriage solemnised everywhere in
the country because the jurisdiction of the court (SC) is
all over the Philippines.
What happens if the lower court solemnises marriage
outside of his territorial jurisdiction.
ex. Aranes V Occiano and other cases

FORMAL REQUISITES
>>absence of any formal or essential requisites
renders the marriage void but a defect in essential
renders the marriage voidable.
Marriage voidable because of a defect of essential
requisites: those mentioned under Art 35
1. where the marriage when one or both of the
contracting parties is are between ages 18-21 but no
parental consent. (Defect in the legal capacity not total
absence)
2. One of the contracting parties is insane at the time of
marriage celebration (defect in the consent not total
absence of consent, consent is vitiated)
other grounds Defect in the consent requirement or the
legal capacity requirement. These are just voidable
marriages because the requisites there are only
defective as opposed to total absence.
In so far as Formal requisites or any of them, VOID but

-The SC consistently ruled that the marriage solemnised

by the Judge outside of his territorial jurisdiction is a
valid marriage but the judge who solemnised it is
administratively liable. This is only an irregularity in the
formal requisites referring to the authority of the
solemnising officer.
2. Any Priest, Imam, Rabbi, Minister of any church or
religious sect authorised in writing by his/her
religious sect or church registered with the civil
registrar general under the scope of the written
authority given to him by his/her religious sect or
church and one of the contracting parties actually
belong to his church.
An Imam can only solemnised marriage between parties
who belong to his/her religious sect. A protestant pastor
cannot solemnise marriage between couples that are
roman catholic because the law provides that at least
one of the contracting parties should belong to his/her
church or religious sect.

Effect if parties do not belong to the solemnising officers

church or religious sect?
It is only an irregularity.
**Note that Incumbent members of the judiciary,
priest, imam, rabbi and ministers can solemnise any
kind of marriage meaning normal, ordinary
marriages and marriages in articulo mortis because
their Authorities are general.
3. Chief Captain or Airplane Pilot, their authority to
solemnise marriage is limited only to marriages in
ariticulo mortis unlike that of the authority of priest,
imam, rabbi, minister.
1. Limited to Articulo Mortis.
2. Parties here are either passengers of the
vessel/airplane or crew members, not any marriage can
be solemnise but only marriage between these parties.
3. Marriage may be solemnise, not only when the ship is
at sea or the airplane is in flight but also during stop
overs or ports of call.

6. Municipal or City Mayor not under the Family code

but under the Local Government Code particularly Sec
444 Paragraph 18.
**authorized to solemnise marriage
Whether he may solemnise marriage outside of his city
between parties not deciding in his city or municipality.
There is no case decided on the matter. It has never
been the topic of despite before the court. But literature
on the matter suggest that the law does not distinguish
although it is ideal and logical to suggest that the
authority of the City or Municipal mayor is only limited to
marriages solemnised within their own local government
units or perhaps their constituents. The law does not
make any distinction of qualification. So there is no legal
basis to limit the authority of City or Municipal mayor to
solemnise marriages between their own territorial
jurisdiction within their respective government unit.
No restriction. When the law does not distinguish we
may also not distinguish. It would appear that the
Mayors power is general and not limited.

If the pilot is involved in the Articulo Mortis.

**Violation will not render Marriage void.

PILOT - can solemnise marriage.

Absence of authority of solemnising officer renders a

marriage void, the exception is when one of the parties
believed in good faith that the solemnising officer has
such authority to solemnise marriage. So Good faith in
the part of the contracting parties will render the
marriage valid even if the the solemnising officer has
actually no authority to solemnise marriage.

-Article 7 specifically speaks of chief pilot but if you look

at Article 31, it only says Pilot. Its common practice that
airplanes have two pilots. So it would appear that if the
chief pilot is the one being married in articulo mortis then
the second pilot may solemnised because in Article 31, it
only states pilot and not chief pilot.
Holds true also to Military commanders in the zone of
military operations. His or her authority is only limited to
marriage in arituclo mortis. Article 7 is specific as to the
limits of their authority.
4. Military Commanders. - marriage in articulo
mortis.
1. Marriages solemnise within the zone of military
operations
2. Parties can be either civilians or members of the
Armed Forces.
> reason for this provision in allowing a unit
commander, who must be a commissioned officer to
solemnise marriage is because of the adverse hostile
condition of the place. It is impossible or too risky for the
parties to go somewhere else and comply the
requirement of marriage.
5. Consul general, vice consul under Article 10
-Note that this is only limited to marriage between
Filipino and Filipino solemnised abroad. If between
Filipino and Foreigner cannot be solemnised
because that is a mix marriage. Only marriage
between Filipinos maybe solemnised by the Vice
Consul, Consul General or the consular officials.

Take note that the conflict here refers only to Mistake of

Fact. this is only, this holds true only when the mistake
on the part of the contracting parties or one of the
contracting parties pertains to a mistake of fact, not of
law. If the mistake pertains to law, it should not be an
excuse. So if the contracting parties believed that the
judge is still an incumbent member of the judiciary when
in truth and in fact the judge is already retired and
therefore no longer authorised to solemnised marriage
this is a mistake of fact unaware that a judge has already
retired. This will render the marriage valid, but the judge
will be liable, civilly, criminally and administratively
liable.
But if the party or one of them believed that a senator is
authorised to solemnised marriage, when no law
authorises the senator to solemnise marriage this
mistake concerns a matter of law and thereof it should
not be an excuse. Everyone is presumed to know that
law and the law is that a senator is not authorised to
solemnise a marriage.

Who shall issue the marriage license?

The marriage license is issued by the local civil registrar
of the place where any or both of the contracting parties
reside. Not any other place. Not any other local civil

registrar. But a marriage license issued by a wrong civil

registrar will not render the marriage void it is only an
irregularity in the issuance of the marriage license but
not tantamount to absence of marriage license.

annulling the previous marriage of declaring the previous

marriage void.

Procedures for the issuance:

The requirement of submitting the death certificate and

the divorce decree or a decision of the court annulling
the marriage, this applies only to Filipino Citizens
because if the applicant is a foreigner and if that
Foreigner is previously married, the previous marriage
dissolved by divorce for example what is required is not
a copy of the divorce but a certificate of legal capacity
issued by his or her consular officials under Article 21 of
the Family Code.

1. Parties are required to apply separately. The

application is under oath, sworn application. Application
prepared by the prospective husband, prospective wife,
separately filed.
2. It shall contain the personal details of the parties
concerned:
a. fullname
b. Place of birth
c. age and the date of birth
d. civil status
e. if there is an existence of a previous marriage, it
should indicate how, when and where the previous
marriage was dissolved.
f. Citizenship
g. present residence
h. full name , residence, citizenship of the father
and mother, guardian
**should indicate in the application for marriage
license
3. Upon the completion of the marriage application, the
local civil registrar shall require the applicant to furnish a
copy of his or her birth certificate, in the absence of the
original then the certified true copy, but in the absence of
the birth certificate, if birth certificate cannot be produced
then the Local Civil Registrar will require the applicant to
submit a baptismal certificate, original if there is no
original then certified true copy.
But if the birth certificate nor the baptismal
certificate can be produced, the option is the
applicant should submit his community cedula
residence certificate or affidavit of witnesses that
will attest to the age, the qualification of the
contracting parties in the absence of legal
impediments. The nearest of kin is preferred other
than any other witnesses.
Note: the requirement of birth certificate
or
baptismal certificate may be dispensed with when
any of the following circumstances is present:
1. The parents of the contracting parties personally
appeared before the Local Civil registrar and attest to
the fact of the age, the qualification of the party or the
applicant. If this is not possible, the parties appearing
before the local civil registrar by mere looking at the
faces of the applicants is convinced that the applicant is
already of age.
2. If the applicant is previously married, he or she shall
submit the death certificate of his/her former spouse or a
copy of the divorce decree of the decision of the court

What happens if the applicant is a foreigner?

ex. Resho V Resho

Where the SC said that the requirement under Article 13
of the Fam Code referring to an instance where the
applicant is previously marriage applies only to Filipino
citizen. Not to foreigner. Subject of course to exceptions.
If an applicant is a foreigner he or she should submit a
certificate of legal capacity to be issued by his/her own
consular official consistent with the nationality theory
because the legal capacity of the Foreign national is
determined by his own law. And to determine the legal
capacity of that Foreign individual vis a vis his own law is
through his own government. This consular officials
represent his government that is why for purposes of
marriage, the document that needs to be submit is the
certificate of legal capacity.
If Stateless Persons:
Cannot pass certificate of legal capacity. Under Art 21, If
applicant is stateless or a refugee instead of a certificate
of legal capacity he needs to submit an affidavit
indicating the circumstances of his legal capacity to
marry.
Legal capacity is a matter of law, how is the LCR
supposed to determine if the Stateless is legally
capacitated to marry? Under whose law?
Note that while an individual, why it is possible for an
individual to have no country, but it is impossible for an
individual to have a domicile because that individual
must be in some place. Domicile refers to the actual
place of living, the place where one stays. There are two
kinds of domicile:
1. Permanent
2. Temporary
**Must have a temporary domicile, and the venue is the
Phil when he applied for marriage license so that that
affidavit of legal capacity must state that the
circumstances constituting his legal capacity under
Philippine Law. So the circumstances must be:
1. At least 18,

2. Man or woman etc.

Baptismal certificate.
1. If the parties are between ages 18-21, meaning 18
and 20.Parental consent should be attached to the
application for marriage license. Absence of parental
consent constitutes a defect in an essential requisite and
therefore renders the marriage voidable.
2. If both or one of the contracting parties are or is
between the ages 21 and 25, on top of the birth
certificate or the baptismal certificate he should also
submit the parental advice or if the a rental advice is
adverse, this will only result in the delay in the issuance
of Marriage license, a delay of not more than 90 days
commuted from the time of the completion of the
application because the application for marriage license
has to be published for 10 consecutive days for from the
10th day application, the marriage license may not be
issued not earlier than 90 days therefrom. Any marriage
license issued earlier than the 90 day period will not
render the marriage void or voidable, the marriage
remains valid but the local civil registrar who issued the
marriage license may be liable.
3. If parties or one of them are or is between 18 and 25,
on top of the birth certificate or the baptismal certificate
he or she shall also submit a certificate of marriage
counselling issued by the priest or any marriage
counsellor accredited by the appropriate government
agency. Failure to comply with this requirement ill result
in the suspension of the issuance of the marriage license
the suspension shall be for a period of 90 days from the
completion of the parties application of the marriage
license but suspension will not render the marriage void
because this is a mere irregularity in the issuance of the
marriage license.
Marriage license shall be avid for 120 days and it
may be used anywhere in the Philippines.
ex. The Marriage license issued by the local civil
registrar of Cebu may be solemnised in Batanes or Jolo.
Validity of marriage license is all over the country.
If not used in 120 days, automatically expired.
When all requirements are submitted the local civil
registrar post a notice in the bulletin board located in a
conspicuous place of the office of the local civil registrar
indicating there in the names and the residence of the
applicants and requesting all persons who have
knowledge on any legal impediment to inform the local
civil registrar about it.

license. The only exception is when the court orders the

local civil registrar against it. This case may be initiated
by the Local Civil registrar himself or any other
interested party.
If the LCR wishes to refuse the issuance of the Marriage
License because of legal impediment, he needs to go to
court and file an injunction directing injunction against
him ordering him not to issue the marriage license
because of the existing legal impediment. All adverse
party may do it. In the absence of any court order
enjoining the local civil registrar from issuing the
marriage license, the local civil registrar have no choice
but to issue the marriage license.
**Do not confuse this when the applicant fails to
comply with the documentary requirement. Before
the marriage can be issued, the applicant has to submit
specific documents. If fails to pass requirement. This is
different from legal impediment, this is a situation of non
compliance from the documentary requirement and
therefore the local civil registrar will not be compelled to
issue without the requirement. This is not a case of
refusal to issue, because technically without the required
documents, the application has not yet been sufficiently
provided. So the LCR can legally argue that they are not
denying the marriage license, they are waiting for the
applicant to submit all the required documents.
Legal impediment is a different thing because legally
impediment contemplates of a situation where the
documents are already in but the LCR refuses to issue
the license. This cannot be done by the local civil
registrar because under the law, knowledge of any legal
impediment is not a ground for the LCR to not issue a
marriage license.
Certificate of No Marriage
>> To avoid issuing a marriage license to someone who
is already married. If you are already married then
definitely you cannot comply with the cedula
requirement. The LCR for the failure to comply with the
requirement may not be compelled to issue the marriage
license because of noncompliance.
This amounts to legal impediment, if the applicant
happens to be indeed married to another therefore he
cannot submit cedula, this might be an issue of whether
or not, this is a simple non compliance of
documentary requirement or a case of existence of
legal impediment.
Again, knowledge of any legal impediment cannot
prevent the Local Civil Registrar from issuing the
marriage license.

What happens if a legal impediment is known?

>> Note that the duty of the local civi registrar to issue
marriage license. Despite knowledge of any legal
impediment, may not refuse to issue the marriage
license so he is obliged by law to issue the marriage

EXCEPTIONS TO
REQUIREMENT:

THE

MARRIAGE

LICENSE

1. Marriage in Articulo Mortis

-Note that marriage in Ariculo Mortis remains valid

even if the dying party eventually survives.

-in lieu of the marriage license what is required is
that the solemnising officer is required to execute an
affidavit attesting to the fact that the marriage was
solemnised under Articulo Mortis and that he took steps
to ascertain the ages, the qualifications of the
contraction gparties and that he found no legal
impediment to the marriage.
Instead of the marriage license, what is required is the
affidavit of the Solemnizing officer.
2. If one or both of the contracting parties is are deciding
in a faraway place where there is no means of
transportation to enable him or her to personally appear
before the office of the Local civil Registrar.
- requires an affidavit instead of Marriage license
stating that the parties are deciding in that particular
barangay that there is no means of transportation for
them to personally appear before the Local civil registrar.
3. Marriage between members or other ethnic cultural
community. No marriage license is required provided the
marriage is solemnised with their customs, rights or
practice.
4. In case of ratification of Marital Cohabitation where
the parties have been living as husband and wife for a
period of at least 5 years. And none of them is suffering
from any legal impediment from marry each other, under
Art 34.
IN lieu of the marriage license, for the contracting parties
to execute an affidavit of cohabitation indication therein
that they have been living as husband and wife for a
period of at least 5 years and that they have no legal
impediment to marry each other.

faithful day, Pepito shot his wife to death, one ear and 8
months after the death of his wife, Pepito married Norma
Badayog then Pepito died living children. The children
filed an action to declare the marriage between Pepito
and Norma void by reason of absence of a marriage
license because it turned out that instead of the marriage
license, Pepito and Norma executed an affidavit of
cohabitation claiming that they have been living together
as husband and wife for a period of at least 5 years
without nay legal impediment to marry each other which
is not true, because it turned out that during the
cohabitation, their alleged cohabitation, at least during
the substantive portion of their alleged cohabitation, the
wife of Pepito was still alive.
Note that marriage of Pepito and Norma took place one
year 8 months from death, so count the 5 year period
backward within the 5 year period of cohabitation, Pepito
was suffering from a legal impediment he is still married
to his first wife because the first marriage was only
dissolve upon the marriage of the 1st wife. IN other
words the earlier period o cohabitation was not free from
any legal impediment.
The SC ruled, that for this rule to apply it is not required
that the 5 year cohabitation should be free from any
legal impediment, it is enough that legal impediment is
absent at the time of celebration of the marriage but the
supreme court ruled that the 5 year cohabit ion should
be characterised by exclusivity and continuity meaning
that the party must be living under a perfect union, like
husband and wife but the relationship is otherwise
imperfect because of the absence of marriage.
**this case was decided under the provision of the
new civil code.
CASE DECIDED UNDER THE FAMILY CODE

What happens
cohabitation?

if

falsified

the

affidavit

of

ex. Dayot V Dayot

The SC said that a falsified affidavit of cohabitation, (it
turned out that the parties were cohabiting for less than
5 years but falsely claimed that they were living together
for more than 5 years. The SC said that a falsified
affidavit of cohabitation is no affidavit at all and therefore
since the affidavit is required in lieu of the marriage
license this amounts to absence of a marriage license,
therefore the marriage is void.

Issue of 34 is whether or not, marital cohabitation

should be free from any legal impediment or is it
enough that the parties are free from any legal
impediment at the time of the celebration of the
marriage?
ex. Ninal V Badayog
A certain Pepito NInal was married to his wife but on the

ex. Borja-Manzano V Judge Sanchez

-This is an administrative case filed against Judge
Sanchez for solemnising persons who were already
previously married. So the first wife of the husband, filed
an administrative complaint against Judge Sanchez,
flaming that Judge Sanchez knew that the parties were
suffering from legal impediments at the time he
solemnised their marriage because in the application for
marriage, in their marriage contract they both admitted
that they are separated from their spouses.
The SC in this case enumerated the requisites for
article 34 to apply. For 34 to apply, or the so called
ratification of marital cohabitation the following
requisites must be present:
1. Parties must be living together as husband and wife
for a period of at least 5 years.
2. No legal impediment
3. the fact of absence of legal impediment must be
present at the time of the solemnisation of the marriage
4. Parties must execute an affidavit of cohabitation

5. Solemnizing officer must execute an affidavit that the

marriage was solemnised under Article 34 and that he
took steps to determine the age and the qualification of
the contracting parties as absence of legal impediment.
Manzano vs. Sanchez
SC enumerated the requisites of Art. 34 , that the fact of
absence of the legal impediment must be present at the
solemnization of the marriage. It is not necessary that
the legal impediment existed prior to the marriage. It is
enough that at the time of the solemnization of the
marriage the spouses should have no legal impediment.
As the case at bar, that issue has never been raised.
Decided under the provisions of the new Family Code.
Office of the Court Administrator vs. Judge Anatalio
et al.
Five judges in Cebu are accused in the so called
marriage scam so various administrative cases are
filed. And Judge Anatalio Necesario are one of the
judges accused of gross ignorance of law because
some of these judges solemnized marriages under Art.
34 where marriages were solemnized without the
requisites marriage license but in lieu thereof, the parties
executed affidavit of cohabitation. Now during the
investigation, it was established that these parties at the
time of the solemnization of marriage and at the time
they executed the affidavit took cohabitation, these
parties were just 19-22 years old and yet in the affidavit
of cohabitation, they claim under oath that theyd been
living together for a period for at least 5 years so
counting back age 19 backwards, it would appear that
at the time they started cohabiting with each other, the
parties or one of them was still under 18 and therefore
suffering from legal impediment which is in absence of or
lack of legal capacity the age requirement. The SC said
that these judges are guilty of GROSS IGNORANCE
OF THE LAW because for Art. 34 to apply., the
cohabitation of the parties must be characterized by
exclusivity and continuity. Obviously, the SC in this case
of OCA vs. Judge Anatalio Necesario et al. apply the
doctrine laid down in the Ninal vs. Badayog case. So as
it is now, forget about Manzano vs. Sanchez , the 5 year
cohabitation should be characterized by exclusivity and
continuity , meaning none of the parties is suffering from
any legal impediment all throughout the period of 5 years
or more otherwise any affidavit which falsely claims that
theyd been living together as husband and wife without
legal impediment must be deemed a falsified affidavit
and under the ruling laid down in the case Dayot vs.
Dayot a falsified affidavit of cohabitation is tantamount
to no affidavit at all and therefore the marriage must be

solemnized without the required marriage license and

therefore should be void under Art. 4 of the Family Code.
Exceptions to the marriage license requirement :
1. Marriage is not required to marriages
solemnized among Muslims or ethnic groups
2. Marriage under Articulo Mortis done under
extreme urgency
3. Marriage where one or both of the contracting
parties are resident of far-flung area where there
is abscense or lack of adequate communication
of the parties to personally appear before the
local civil registrar
4. Marriage
under
cohabitation
Marriage Ceremony
Marriage)

(3

ratification
rd

Formal

of

marital

Requisite

of

Under Art. 6 of the Family Code, there is no prescribed

form of the marriage ceremony, what is essential there is
that the parties must personally appear before the
solemnizing officer - thats the most important there,
personal appearance before the solemnizing officer
that is why marriage by proxy in the Philippines is void
being the abscense of a valid marriage ceremony
because our Family Code expressly provides that the
parties must personally appear before the solemnizing
officer and declare that they take each other as husband
and wife, this personal declaration that they take each
other as husband and wife must be contained in the so
called marriage contract which must be signed by the
parties the witnesses the sponsors and the solemnizing
officer. Family code requires that the marriage ceremony
must be witnessed by at least 2 witnesses who must be
of legal age but any irregularity in this requirement does
not affect the validity of the marriage so if the witnesses
of the solemnization of the marriage are not of legal agethe common opinion of writers is that it is only a mere
irregularity of the formal requirement of the marriage
ceremony the marriage remains valid the essential
elements are the ff:
1. The personal presence before the solemnizing
officer
2. The personal declaration that they take each
other as husband and wife
Any marriage without the solemnizing officer is
void because of the absence of the solemnizing
officer and second must have a valid marriage
ceremony . just as in the case of Yao Kee vs.

Gonzales where the marriage was declared

void by the SC because of the absence of
solemnizing officer the same ruling laid down
in the case people vs. Lucio Morigo where the
parties only signed the marriage contract in the
abscense of the solemnizing officer so both
elements or requirements were absent , no
solemnizing office authorize to solemnize the
marriage and second, no valid marriage
ceremony.
The marriage contract itself is not a requisite for
a valid marriage, this reminds of the thinking that
if there is no marriage contract the document
of the parties is not signed along with the
witnesses the marriage is void. The marriage
so long as the ceremony took place- the
personal declaration of the parties and the
presence of the solemnizing officer then there is
a valid marriage ceremony even in the absence
of a marriage contract because the marriage
contract only serves as supplementary evidence
of the fact of the marriage ceremony but it does
not mean that the marriage ceremony could only
be proved by the marriage contract itself
because the marriage ceremony can be proved
by other forms of evidence other than the
marriage contract like the testimony of the
solemnizing officer, testimony of the parties and
the witnesses, mere absence of the marriage
contract / certificate does not render the
marriage void because the marriage certificate is
not a formal requisite of a valid marriage. Do
not equate marriage certificate/ contract with
marriage ceremony. Marriage certificate only
serves as an evidence of the marriage
ceremony.
What is the venue of a valid marriage
ceremony?
Marriage ceremony cannot just be solemnized
anywhere. The law describes specific venue for
a valid marriage ceremony.
What are the venues prescribed by the family
code?
1. If it is solemnized of an incumbent member
of the judiciary the marriage ceremony
should take place either in the chambers of
the judge or in the court
2. If it is solemnized by imam, rabbi, and priest
or religious authorities - maybe solemnized
in the church , temple or chapel

There are exceptions to the rule of

venue: (instances where the marriage
ceremony only may be solemnized other
than mentioned)
1. In marriage under articulo mortis this
marriage could be solemnized anywhere
where the parties are
2. Marriage where one or both of the
contracting parties is a resident of a farflung area
where no means of
transportation
3. If the parties request in writing address
the solemnizing officer that the marriage
be solemnized elsewhere indicated in a
sworn statement the preferable place
like in the house or etc.
*Marriage solemnized in violation on the rule of venue
does not render the marriage void because this is only
an irregularity in the marriage ceremony. It does not
amount to an absence of a marriage ceremony. The
marriage ceremony indeed actually took place only the
venue is not in accordance. So wrong venue only a mere
irregularity in the solemnization of the marriage.
Article 26 :Conflict of Rules on Marriage
As a general rule, lex loci celebraciones and by
exception nationality theory.
All Marriages solemnized abroad and valid there
as such shall also be valid in the Phils.,
exceptions : Art. 35 (1) (4)(5)(6), 36,37 and 38
If the marriage is valid in the place it is
celebrated should also be considered valid in
the Phils.
If it is valid in Hong Kong where the marriage is
celebrated then it is also valid in the Phils. Exceptions
are those mentioned enuramerated in art.26. This rule ,
contemplates 4 distinct situations governed by different
rules :
Specific situations governed by Art. 26:
Paragraph 1
1. A marriage between foreigners abroad ex. 2
Indians and marriage was solemnized in China
under Art.26 , if this 2 indians married in China
where it is celebrated then it should be
considered valid in the Phils. By Lex Loci
Celebraciones.

2. Both foreigners and the marriage is solemnized

in the Phils. under Art.26 Lex Loci
Celebraciones applies. Should follow the rules in
the Phils. But so far as the capacity of the
contracting parties their legal capacity must be
governed by their own respective national laws
so if both Indians wish to marry in the Phils and
the marriage was solemnized in the Phils.- the
validity of the marriage should be governed by
the Phils and should comply with laws of
marriage in the phils. Except legal capacity to
contract marriage should be determined by their
own national law so that if in India 15 yrs old
has the capacity to marry they can validly marry
in the Phils. Because capacity to contract
marriage is governed by nationality theory
consistent to Art. 15 of the Civil Code.
3. Filipinos marriage between Filipinos abroad
ex. 2 Filipinos happened to meet in China they
can have their marriage solemnized in China
as a rule they can have 2 options :
a. They may marry in accordance to Chinese
Laws
b. They may contract marriage before a Phil.
Consular Officials Art.10 of the Family
Code authorizes the consul-general and
vice-consul to solemnize marriage bet.
Filipinos abroad. (follows Philippine law
where the consular office is an extension of
Philippine territory)
*The local civil registrar and solemnizing
officer is now being assumed and exercised
by the Consular Official.
If they choose that their marriage be solemnized in a
foreign country and it is celebrated to that country then it
should follow that it be recognized in the Phils.
Exceptions provided under art. 26. So even if in China
the marrying age is 15 that marriage cannot be
considered valid in the Phils. Because it is covered in the
st
1 exception under Art. 26 . Should be consistent to the
Nationality Theory they are governed by the Philippine
laws pertaining to legal capacity.
4. Filipino and a foreigner marriage solemnized in
the Phils. (common marriage ). The validity of
the marriage is Lex Loci Celebraciones. Their
marriage should follow law of Phil. Marriage but
in so far as the foreigner is concern, his legal
capacity to contract marriage is governed by his/
her national law consistent with Art. 21.

5. A marriage between a Filipino and a foreigner

solemnized abroad is the most controversial
scenario. Often source of many debates and
until now unsettled. The rule is , if the marriage
is valid abroad then Lex Loci Celebraciones that
marriage is considered valid in the Philippines.
The problem now lies in the exception, because
consistent with nationality theory only the
Filipino is governed by the rule so if the marriage
is between a Chinese national 15 years old and
a Filipino national 17 years old solemnized in
China and in China 15 is the age of majority, it
would appear that the marriage in so far as the
China law is concern is valid. But since Filipino
is governed by nationality theory he falls under
the exception of Art. 26, 35 par.1 of the Family
Code because he is under the age of 18 and in
so far as the Phil. Is concern , the marriage is
void. So we have now a marriage valid insofar
as the foreigner is concern but void in so far as
the Filipino is concern but thats a legal
impossibility because the marriage is indivisible.
The marriage can only be valid or invalid not
hybrid, partly valid partly void.
Since under Art.26 that falls under that
exception, the entire marriage should be
considered void in so far as PHils. Is concern
because this is against public policy. Other view,
our policy in marriage upholds the validity of
marriage.Marriage is an inviolable social
institution, consistent of the policy of upholding
validity of marriage, some advocates take the
possession that in this situation the marriage
should be considered valid becoz Lex Loci
Celebraciones - if valid abroad even if not valid
in Phils. should be considered valid. ( opinion of
some prominent writers like Justice Edgardo
Paras). As of now , there is no specific case
which addresses this question and no ruling
rendered by the SC with decision.
Paragraph 2
-was just inserted not part of the original
- this provision was purposely adopted to address the
problem post by the previous rulings of the court in the
cases of Van Dorn vs. Jarilla subsequent case of Pilapil
and the rest. Where the SC recognized the validity of
divorce in so far as the foreigner is concern consistent
with the nationality theory but not as the Filipino spouse
is concern consistent with the policy that this allows or
prohibits.

A marriage between a foreigner and a Filipino validly

celebrated and a divorce decree was subsequently
validly obtained abroad capacitating the foreigner
spouse to remarry that divorce decree also capacitates
the Filipino spouse to remarry. By express provision of
par.2 of Article 26, is respected to a situation where the
one who obtained the divorce decress is the foreign
spouse, it does not apply where the one who apply the
divorce decree of is a Filipino spouse due to public
policy situation.
For this to apply, it is necessary that the divorce
decree abroad must be valid and must capacitate the
foreign spouse to remarry.
2 Kinds of Divorce Decree
1. Absolute Divorce
2. Relative Divorce
*The divorce contemplated under Art.26 is
absolute divorce. It is explicit that the divorce
decree must capacitate the alien spouse to
remarry because if the divorce decree obtained
abroad by the alien spouse is relative divorce
which does not capacitate him/her to remarry ,
the Filipino spouse is not also capacitated to
remarry.
The Filipino spouse cannot just apply for a
marriage license just because the alien spouse
has already obtained the divorce decree, he/she
needsthe task is so daunting.. he needs to go
to court and for that purpose hires a lawyer ,
pays the fees and stands the risk of his petition
being if he/she could establish to the court the
requirement prescribed by the rule before the
Filipino spouse can remarry. This was the ruling
in the Republic vs. Cipriano Obecido
Par.2 Art.26
-

Literally provides the marriage should be

between a foreigner and a Filipino so literally
means a mixed marriage . The citizenship of
the foreigner is reckoned not as of the time
of the marriage but as of the time the
divorce decree was obtained so that even if
at the time of the marriage or solemnization
of the marriage , the parties were both
Filipinos and was solemnized in the Phils.
Subsequently, one of them acquired foreign
citizenship, for example one of them
became a naturalized American citizen and
while already a foreigner, he/she obtained a

divorce decree abroad, Art. 26 par.2 still

applies to situation where marriage is both
Filipinos but one of them became a
naturalized a foreign citizen and while
already a foreign citizen obtained a divorce
decree abroad. This was the ruling laid
down under Republic vs. Cipriano Obrecido.
As I said earlier, the effect of paragraph two in so far as
the Filipino is concerned is automatic because that
Filipino spouse still needs to go to court to obtain
precisely the legal capacity to remarry. The petition or
the appropriate action to be filed in this case, in so far as
the Filipino spouse is concerned is under Rules 63 of the
Rules of Court otherwise known as the petition for
declaratory relief, it is the petition where one seeks to
establish the his status, his right, under any law,
ordinance or any instrument. It is the appropriate action
that the Filipino spouse have to file in order that he or
she may contract a subsequent marriage as a result of
the decree obtain by a foreign spouse.
What are the matters that the Filipino spouse needs
to establish in this petition for declaratory relief?
In Obrecidos case, the SC ruled that in the petiion
for declaratory relief, the Filipino spouse must
establish, the following:
1. The Filipino spouse must establish the
divorce decree as a fact.
-must prove in court in the petition for
declaratory relief that indeed the divorce decree
was obtained.
Now how do you prove the existence of a
divorce decree?
It should be proved under our rules in evidence.
Under Rule 132 Section 124, the divorce decree
which is a document keep outside of the
Philippines may be proved by a copy of the
divorce decree. Certified copy. A copy attested
by the legal custodian of the divorce decree is a
faithful reproduction of the original in their
custody, a certification issued by the consular
official of the Philippines stationed in the country
where the divorce decree as obtain, that the
legal custodian who attested the copy is indeed
the custodian of the said document.
The consular certification =
authenticated foreign document.

red

ribbon,

*You get this file on the Philippine consular

office situated in the country where the divorce
decree was obtained.
2. Proof that the divorce decree was validly
obtained.
How?
It can be established by proving, or by
demonstrating conformity to the law allowing the
divorce decree.
Note: prove the foreign law under which the
divorce decree was obtained.
Refer to rules of evidence. It may be proved by
official publication of that foreign law or by
certified true copy of the foreign law, attested by
the legal custodian accompanied by the
certification of the Philippine consular official in
the country where the decree was obtained.
3. The Filipino spouse must prove that the
divorce decree obtain capacitates the alien
spouse to remarry.
if the alien spouse is not capacitated to
remarry, the Filipino spouse cannot remarry.
Take note that the petition for declaratory relief
under Article 26 second paragraph is a remedy
available only to the Filipino spouse if the latter
wants to remarry. The question is what about the
alien spouse is the one who wants to remarry in the
Phil? Because now is now capacitated to remarry as
a result of the divorce decree.
Is the petition of declaratory relief equally available
to the alien spouse who wishes to remarry in the
Phil?
NO. The second paragraph of Article 26 which allows
the Filipino spouse to remarry is only available to the
Filipino spouse, the alien spouse who obtain the divorce
decree cannot invoke the second paragraph of Art. 26.
If you are the alien spouse and you wish to remarry
in the Phil after you obtain a divorce decree abroad,
what do you do? What is the remedy available to
you?
Ex. Corpuz V Tirol
Gilbert Corpuz, used to be a natural born Filipino citizen
but subsequently, he became a Canadian national
through nationalization. Some time later when he
returned to the Philippine and met Daisy, fell in love and
they got married, by reason of work, Gilbert went back to
Canada for awhile, and returned to visit Daisylyn but he
did not inform the latter because he wanted to surprise
her. And so when he returned someone was indeed

surprised but was not Daisylyn but Gilbert. He

discovered that his wife was already playing with another
team. So hurt, hes devastated. Gilbert returned to
Canada where he obtained a divorce decree against
Daisylyn, picking up the pieces, he returned to the Phil
and found another love of his life. So he wanted to
remarry in the Phil.
Now he consulted some professional, and he was
advised to have a copy of the divorce decree that he
obtained in Canada registered in the Local Civil registrar,
or otherwise annotated. Annotated on the certificate of
marriage, between Gilbert and Daisylyn. Now, true
enough the Local Civil Registry agreed to annotate the
divorce decree on the certificate of marriage between
Gilbert and Daisylyn but nonetheless he was advised
that until and unless he filed a case in court to have the
divorce decree recognized he remains to be married to
Daisylyn. In so far as Philippine laws are concerned. So
taking cue from that advise. Gilbert hired a lawyer and
filed for a petition for recognition of a foreign divorce
before Philippine courts invoking the second paragraph
of Article 26.
The petition was denied by the Court on the ground that
nd
the 2 par cannot be availed of by Gilbert because the
said par applies only to the Filipino spouse but not the
Alien spouse. So the issue there was whether or not the
petition that Gilbert filed for recognition of a foreign
divorce before Gilbert may be allowed to remarry.
The SC made a definitive finding that a foreigner who
obtained a divorce decree against a Filipino spouse
cannot avail of the second par of Art 26. Because Gilbert
there argued that this petition was akin to a petition for
declaratory relief. The SC said that Gilbert, being a
foreigner may not avail of this remedy. Therefore in so
far as Art 26 is concerned, this is not a proper remedy.
However, the SC said, the fact that Gilbert may not avail
nd
of the 2 par of Art 26 does not necessarily mean that
he has no right at all to have their divorce decree that he
obtained abroad recognize in the Phil.

Note that in the petition for declaratory relief, is an action

to have a divorce decree recognized before the Phil
court. But this remedy is strictly only available to the
Filipino spouse.
The SC said that while he may not avail of the petition
nd
for declaratory relief pursuant to Art 26 2 par he
however is a proper party to have the divorce decree he
obtained abroad recognized in the Phil court. The SC
said that the right of Gilbert, while not under the said Art
may be anchored on Rule 39 Section 48 of the rules of

court. Section 48, provides for a rule on the effects of a

foreign judgement.
Note that a divorce decree obtained abroad is judgement
of a foreign court and under Rule 39 Section 48 that if a
foreign judgement rendered by a foreign court involving
a judgement involving persons or specific persons. That
foreign judgement is presumptive evidence of a right
between the parties so being it in this provision, that
provision is presumptive evidence of the right of Gilbert
that he is now capacitated to remarry by virtue of the
divorce decree.
The SC went farther to say that however, it should be
emphasized that for purposes of remarriage, a petition
for recognition of the foreign divorce is not enough. Not
enough because for purposes of remarriage, Gilbert
needs to effect a change in the marriage contract of him
and Daisylyn. Meaning, the foreign divorce decree
should be annotated in the certificate of marriage
between him and Daisy to show that as a result of the
divorce decree, their marriage has already been
dissolved. Without the annotation for all intents and
purposes, the marriage still remains. The SC said that
for purposes annotating the divorce decree that Gilbert
obtained abroad, a petition for the enforcement of a
foreign decree is not enough. The proper remedy is a
petition for correction or cancellation of entries in the civil
register pursuant to Rule 108 of the Rules of Court.
In short: if the foreign spouse who obtained a
divorce decree against the Filipino spouse, wishes
to remarry in the Phil, the proper remedy is not 63,
not petition for declaratory relief but a petition for
correction or cancellation of the entry in the local
civil register, particular entry on concerning the
marriage. In that petition, the petitioner, the alien
spouse should prove the existence of the divorce
decree and its conformity to the law allowing the
divorce decree.
In this case, Gilbert faiied to attach or prove the
Canadian Law on divorce. And so the court ruled the
proceeding should be conducted so that it should be
established the fact of the divorce and its conformity to
the law on Divorce in Canada.
In this action for special proceedings for cancellation of
entries, the foreign divorce decree obtained should also
be recognized by Phil court and as soon as this is
recognized by the Phil court, the recognition made by
the Phil court would now be the basis for court order
directing the civil registrar to effect the corresponding
change or correction in the entries available in the local
civil registry particularly entry concerning the marriage.

Note, for foreign judgements to be binding and

enforceable, it should first be recognized by the Phil
courts.
The actions of the Local Civil Registrar of Pasig City did
not have legal basis (annotation of the foreign divorce
decree on the marriage cert) without the court order.
The practice before the ruling is that if the foreign
spouse wishes to remarry in the Phil. He just have to
annotate a copy of the divorce decree on their
marriage contract and that would be enough for
them to apply for a marriage license anew and
contract a subsequent marriage and because of the
Memorandum Circular issued by the NSO, which
was precipitated by the Ruling of Republic v
Obrecido, all judgements rendered by foreign
courts, including divorce decrees may not be
enforced in the Phil unless recognized before Phil
courts. And the proper remedy for recognition is a
special proceeding under rule 108. Petition for
cancellation or correction of entries.
Note:
Fujiki V. Mabinay
Involves a mix marriage between a Japanese guy
named Fujiki and a Filipina. The marriage did not sit well
with the parents of the Japanese so eventually their
relationship went sour and Fujiki went back to Japan
leaving Mabinay in the Phil. Alone and loney, Mabinay
met another Jap named Maicara. Without their first
marriage being dissolved, Mabinay contracted a
subsequent marriage to Maicara. And after the marriage,
Mabinay was brought by Maicara to Japan.
Faith did not work well for Mabinay because it turned out
that shes being subjected to physical abuse by Maicara
and so while in Japan, Mabinay tried to look for Fujiki
and by stroke of luck, Mabinay, eventually met and
found Fuiki and sooner, the two rekindled their love
affair.
Fujiki now is now confronted by the fact is also married
with another Jap and so to straighten out the marital
record of his wife, Fujiki assisted Mabinay in filing a
petition for declaration of nullity of marriage between
Mabinay and Maicara before the Jap court. After due
proceedings, the Jap court declared the marriage
between Maicara and Mabinay void by reason of
bigamy.
After the Jap court, issued the said declaration of nullity
of marriage between Maicara and Mabinay Fujiki
returned to Phil and filed an action for the enforcement

or recognition of the judgement rendered by the Jap

court declaring the marriage between Mabinay Maicara
void for being bigamous. Unfortunately, the petition was
dismissed by the regional trial court of the Phil on the
grounds that Fujiki is not the proper party to initiate the
action involving the SC circular prescribing the rules on
the declaration of nullity and annulment of marriage.
Under this circular, only the husband or the wife may file
petition. Now the RTC was of the opinion that, either
Maicara or Mabinay can file the petition of nullity of
marriage for being bigamous.
The SC disagreed with the RTC, the SC reversed the
decision of the RTC. Firstly, the rule that only the
husband or the wife may file a petition for declaration of
nullity of marriage or annulment of marriage applies only
if the petition is for the declaration of the nullity of
marriage or petition for the annulment of a voidable
marriage but what Fujiki filed before the Phil court is not
that kind of action. What the former filed was an action
for recognition of a foreign judgement, the judgement
rendered by the Jap court declaring the marriage void for
being bigamous. Fujiki did not ask the RTC to nullify the
marriage between Maicara and Mabinay, Fujiki merely
prayed that the the judgement renderd by the Jap court
to be recognized in the Phil.
The SC said that that rule on the declaration of nullity of
marriage or annulment does not apply.
When the marriage is bigamous, because one of the
spouses contracted a subsequent marriage while the
first marriage is still subsisting. Parties to the subsequent
bigamous marriage are not expected to file the petition
to declare their marriage void because they are the
parties benefited out of that bigamous marriage because
they are the parties to that marriage. So normally the
party aggrieved is the party in the first marriage.
Because the SBM prejudices the rights and interest
already accrued in the first marriage like property rights.
st
So normally, the proper party is the spouse in the 1
marriage.
The SC said, Fujiki being the first husband the proper
parties to question the validity of the subsequent
nd
marriage between his wife and Maicara and 2 , even if
we are to assume that the rule (Supreme Court Circular
governing the nullity of marriage) states that only the
husband or wife may file the petition, the wife or the
husband contemplated by the rule is the wife or the
husband in the first marriage because the Subsequent
Marriage being void, the parties to the Subsequent
marriage which is a Bigamous Marriage cannot be
considered as husband and wife because the marriage
is void for being bigamous. So when the rule speaks of

the husband or the wife, it refers to the husband or the

wife in the first marriage.
The parties in the subsequent marriage cannot be
considered husband and wife because there is no
marriage to speak of being void for bigamous.
The proper remedy for a foreign judgement to be
recognized in the Phil is a special proceeding under Rule
108 of the Rules of court petition for correction or
cancellation of entries in the Civil Registry.
The decision rendered by the Jap court declaring the
marriage between Maicara and Mabinay void for being
bigamous may be annotated on the certificate of the
marriage between Maicara and Mabinay. Effecting the
change reflecting that fact that the marriage is already
dissolved by reason of the judgement rendered by the
Jap court and which judgement is duly recognize is duly
recognized by a competent court in the Phil.
VOID MARRAIGES
1. Void for lack or absence of Essential or
Formal Requisites. These marriages are
those mentioned in Article 35 of the Fam
Code:
a. one or both contracting parties are below 18
b. lack of authority on the part of the
solemnizing officer except if one or both of
the parties believed in good faith that the
solemnizing officer has such authority.
Note: Art. 7 enumerates the officers or
persons who are authorize to solemnize
marriage and in addition, but under
Article 35 par 2 if both or one of the
contracting parties honestly believed in good
faith that the solemnizing officer has such
authority, the marriage remains valid. But
that marriage should pertain to mistake of
Fact and not of Law.
If the mistake pertains to a mistake of Law
that may not be considered under the
exception provided for of Art 35.
2. Marriage contracted without valid marriage
license with the exemption of those
enumerated in Articles 27- 34. Chapter 2 of
this title
3. Bigamous Marriage
-there is legal impediment to marry.
4. Mistake in identity
5. Void by reason of Art. 53

Article 36: Psychological Incapacity

If both or one of the contracting parties suffers from
Psychological incapacity to perform his or her marital
obligation.
Divorce in disguise. Pseudo divorce.
Note that Art 36 does not specifically define the acts
consecuting Psychological Incapacity. Anything that
incapacitates a party to the marriage from performing his
or her essential marital obligation that can be considered
Psychological Incapacity.
Has to be distinguished from Physical Incapacity and
from Mental Incapacity.
Physical
Incapacity
Incapacity or
inability to
consummate
marriage
particularly
impotency.

Ground for
annulment of
voidable
marriage under
Art 45

Psychological
Incapacity
Refers to the
most serious
personality
disorder
involving ones
inability to
understand the
meaning and
significance of
marriage.
Ground for nullity
of a void
marriage

Mental
Incapacity
Insanity

Grounds for a
voidable
marriage

One who is suffering from Psychological Incapacity is

not aware of the significance and meaning of marriage
or even if he is aware and the obligations and
responsibilities that come with it, he is just too
incapacitated to assume them.
What are specific types of Personality Disorder
under this Art?
One can only go by Jurisprudence because
Psychological Incapacity is not defined by the law.
Decision is on a case to case basis.
Ex. Chi Ming Tsoi V CA
Marriage between two Filipinos but after the marriage
the husband purposely refused to consummate it. The
husband invented all kinds and all sorts of excuses so
he could refuse sleeping with the wife. Going with friends
when they went to Baguio to have their honeymoon,
instead of spending their time together alone, they
brought with them their families so nothing happened.
So the wife remained deprived. Deprived of intimacy.

The SC said that this is a manifestation of a

psychological incapacity because obviously the husband
does not understand that intimacy is one of the essential
aspects of marriage it is their way in participating in the
mystery of creation. So obviously he did not understand
the meaning and significance of marriage. Psychological
Incapacity.