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Art.l .

Effectivity
Effectivity Date:
Date:
03
03 August
August 1998
1998
TITLE I
MARRIAGE

CHAPTER I
REQUISITIES OF MARRIAGE

) .: I
Art 1. Marriage is a special contract 01 permanent
union
between i:lbtan 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 insti-
tution whose nature, consequences, and incidents are gov-
erned by law and not subject to stipulation, except that mar-
riage settlements may fix the property relations during the
marriage within the limits provided by this Code (52a).

AmD~nts to Arl 52 of Civil Codej

The above article improves on the definition of marriage


in Art. 52 of the Civil Code of the Philippines by stating that
(1) Marriage is a "special" contract.
(2) It is a "permanent" union.
(3) The union is "between a man and a woman".
(4) The union must be "entered into in accordance with
law."
(5) The purpose of marriage is "the establishment of
conjugal and family life".
As to the purpose of marriage, while the most important
object of marriage is procreation or to have a family, the
Committee believes that marriage may not necessarily be for
procreation or for the parties to have children, but it may also
be only for companionship, as when parties past the age of
procreation still get married. Hence, the words "for the

t
I

2 Art. 1

establishment of conjugal and family life" were used in stating


the purpose of marriage.

_iwo Aapects of Marriqei.

Marriage has two aspects:


(1) As a contract; and
(2) As a status.

As a contract, marriage differs from other contracts in


hat:
(1) Only a man and a woman can enter into the contract
of marriage.
(2) Marriage is a permanent contract; that is, it can only
be dissolved by the death of the other party, unless
it is annulled or declared null and void for legal
causes by the court. '
(3) In ordinary contracts, the agreement of the parties
has the force of law between them, while in marriage,
the rights and duties of the parties are fixed by law
and not subject to stipulation, except in marriage
settlements where the parties may fix their property
relations to a certain extent.
(4) Breach of an ordinary contract gives rise to an action for
damages, while breach of the obligations of husband
and wife ·does not give rise to such an action, but the
law prescribes penal and civil sanctions therefor, like
criminal actions fur adultery or concubinage, legal
separation, action for support, etc.

Once there is a valid contract of marriage, the status of


marriage or of ''being married" is created between the parties.
And as a status: .

(1) Marriage is no longer just a contract but anfuviolable


social institution, which is the foundation of the
family, so that the Constitution provides that it
should be protected by the State (Sec. 2, Art. XV,
1987 Constitution).
Arl.2

(2) It being an institution of public order or policy, its


nature, consequences, and incidents are governed by
law and not subject to stipulation.
(3) It carries with it implications in two fields: the ffalm
of personal rights and obligations of the spouses, arid
the realm of property relations. Generally, the first
field-is a personal matter between husband and wife
and will not ordinarily be interfered with by the
courts; in the second, there are several judicial
sanctions applicable.
Art. 2. No marriage shall be valid, unless these --essential
requisites are present:
,. (1) Legal capacity of the contracting parties who must
be male and female; and
',~(2) Consent freely given in the presence of the
solemnizing officer. (53a)

Again; the Family Code improves on the Civil Code by


distinguishing the essential requisites of marriage from its
formal requisites, and expressly stating, in its Art. 4, the effect
of the absence or total lack of the essential and formal
requisites, as a distinguished from defect in the essential
requisites and irregularity in the formal requisites.
Under this Article, there are only two essential requisites
of marriage:
(1) Legal capacity of the contracting parties, who must'
be male and female; and
(2) Consent (of the parties) freely given in the presence
of the solemnizing officer.

Lezal Ca'l'adcy Explained:

Legal capacity is further defined in Art. 5 of the Code. It


is again made clear in this Article, however, that the parties
must be male and female, or of different sexes, a requisite
that is dictated by biological law, since procreation cannot be
realized by two persons of the same sex. If through deceit or
Art . .1

fraud, a marriage is celebrated between two males or two


females, therefore, the 'marriage is-void and inexistent, and the
party guilty of fraud is liable to pay the other damages.

Consent of the Contracting fames Emlained: .

The second essential requisite - consent freely given in


the presence of the solemnizing officer - is the consent of the
sontracting parties and not parental consent. "Freely given"
means that the consent is real and nor' vitiated or rendered
defective by any of the vices of consent under Arts. 45 and 46
of the Code, like fraud, force, intimidation, undue influence,
etc. And the parties must personally appear before the
solemnizing officer during the marriage, which requirement
excludes "common law marriages" (when the parties just live
together as husband and wife without the celebration of
marriage between them) or a-marriage by proxy (when one or
both parties do not appear personally before the solemnizing
officer but are merely represented by other persons). The
appearance of the parties before the solemnizing will also give
the party who is merely being forced, intimidated, or unduly
pressured into the marriage an opportunity to inform the
solemnizing officer of such fact so that the marriage ceremony
may be suspended or stopped.

Art, 3. The formal requisites of marriage are:


(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases
p~ovi,ded for in Chapter 2 of this Title; and
(3) . A marziage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their l'ersonal declaration
that they take each other as husband and 'wife in
the presence of not less than two witnesses of legal
age. (53a, 55a).

This ArHc1e makes it clear that:


(1~/ the authority of the solemnizing officer,
Art. 4 5

(2}/ the marriage license, and


(3) the marriage ceremony where the contracting parties
/ appear before the solemnizing officer, are only. formal
requirements or requisites as to the form of the
marriage; i.e., requisites that affect the extrinsic
validity, not the intrinsic validity, of the marriage.

Art. 4. The absence of any of the essential or formal


requisites shall render the marriage void sb initio, except as
stated in Article 3S (2).
A defect in any of the essential requisites shall render
the marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not .affect
the validity of the marriage but the party or p,-arlies
responsible for the irregularity shall be civilly, criminally
and administratively liable. (n)

~:!~~:~wt!ln
!Absence of Essentjal or Formal Requisites Distinluished
Essential "Uisite and Inell'lullJ in a

. While Arts. 2 and 3 enumerate the essential and formal


requisites of marriage, this Article explains the effects, of the
absence or absolute lack of such essential and formal
requisites, in that it renders the marriage void ab initio, except
for Art. 35 (2)
On the other hand, according to this Article, a defect in
an essential requisite renders the marriage merely voidable, cqS1 kt
while an irregularity in a formal requisite would not even r"lhf'~J"
affect the validity of the marriage, subject to the civil criminal,
or administrative liability of the party or parties responsible
for such irregularity.
According to Justice Eduardo P. Caguioa, a member of
the Committee that drafted the Family Code, a defect is an
irregularity but -riot every irregularity is a defect, and that
defects apply to/ essential requisites of marriage and
irregularities, to j<>rmal requisites. Hence, the Committee
agreed that irregularities in formal requisites should not affect
6 Art. -I

the validity of the marriage, while defects in the essential


requisites will render the marriage voidable or defective.

=~t:~ of voId marrlil8l because of abs~ce of essential

Absence of Legal c~p~dty:


(1) A marriage between a 14-year old girl and a 16-year
old boy, even if both have parental consent, since
under Art. 5 of the Code, the minimum age for
marriage is 18.
(2) A marriage between a boy of 18 and a girl of 16,
both with parental consent. The girl here still has no
legal capacity to get married.
(3) A marriage between two girls, or between two iJOYs:
Parties of the same sex cannot get married.
(4) A marriage between parties who have a legal
impediment to get married under Arts. 37 and 38 of
the Code, like first cousins.

Absence of consent of contracting parties:


(1) Marriage in/jest with no intention on the parties to
be bound.
(2) Marriage in the.movies or in a/TV or stage play.

Absence of authority of solemnizing officer:


(1) Marriage solemnized by a judge who has already
retired;
(2) Marriage solemnized by a judge outside his territorial'
jurisdiction;
(3) Marriage solemnized by a person who only
pretended to be a judge or a. priest."
(4) Marriage solemnized by a
priest who has no
authority from his church to solemnize marriages, or
who is ,:1 t registered with the Office of the Civil
Registrar General under Art. 7 (2).
'See Navarro v. Domogtoy, 259 SeRA t ruling that the judge's
having solemnized a marriage outside his jurisdiction is a mere irregu-
larity that does not render the marriage void.
Alt. I 7

Remember, however, that under Art. 35(2), the marriage


is still valid even if solemnized by a person not legally
authorized to perform marriages, provided either or both
parties had believed in good faith that the solemnizing officer
had the authority to do so.
Absence of il valid marriage license:
(1) A marriage with )10 license, unless it falls under Arts.
27 to 34;
(2) A marriage with an -expired license.
(3) Certificate of Local Civil Registrar that he could not
find alleged license in his records proves tha t. no
such license was issued (Rep. v. CA, 236 SCRA 257.)

Absence of marriage ceremony:


(1) Common-law marriages where the parties just live
together as husband and wife without a marriage
ceremony (Eugenio v. J. Velez, GR 85140, May 17, 1990.)
(2) A marriage by proxy, where one or both parties are
merely represented by other persons.

LIs there such thins as a secret mauiaBe?


None. A secret marriage is a legally non-existent phrase
that ordinarily applies to a civil marriage celebrated without
the knowledge of the relatives or friends of the spouses.
epublic v. c.A. and Castro, 236 SCRA 257)

Effect of Defect in any of Essential Reguisites;

A defect in the essential requisites may be:


(1) A defect in the legal capacity of either party, as when
a girl or a boy between 18 and 21 years of age (i.e.,
below 21 years) gets married without parental
.consent: or
(2) A defect in the consent of either party, which means
that such consent was given under any of the
circumstances that vitiate consent under Arts. 45 and
46 of the Code. -
• A defect in any essential requisite does not render the
Art. 5

marriage void but makes it only voidable; i.e., valid until


annulled. .

rEfiect of Irreay,laritr in aux Formal R.uisit~

An irregularity in any fo~a_l_ requisite of marriage does


notaf~ct its-validity, but the party or parties responsible for
the irregularity are civilly, criminally, and administratively
liable. Examples of such irregularity are:
(1) The marriage li_~~~ was/not applied for in the place
specified in Art. 9. ---. .- .
(2) The marriage license was signed by a ~E!Je employee
of the office of the proper local civil registrar, but
with the latter's authority.
If the employee was 116f authorized by the local
civil registrar to sign for the license, the marriage will
be void for lack of a valid license.
(3) Th/10-day posting of the application for .marriage
license was not complied with, but a license was
nonetheless issued. .
(4) The parties did not actually declare to the'
solemnizing officer that they freely take each other as
husband and wife.
(5) The parties ,.did not comply with the requirements of
parental advice (Art. 15), marriage counselling (Art.
~ 16), or family planning seminar under P.O. 965, but
they were still able to get a license,
(6) There were n~ witnesses to the marriage.

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)

The minimum ages for marriage under Art. 54 of the


Civil Code of the Philippines is 14 for the girl and 16 for the
boy, which ages are based On the capacity of the girl and the
Art. 6 4}

boy for reproduction (or their having already reached the age
of puberty) and not on their maturity and freedom of
judgment.
Experience under the Civil Code, and records of our
courts show, however, that immaturity of the parties or teen-
age marriages is the main cause of marriage break-ups, since
the parties are too young to understand and are not yet
prepared for the lifelong relationship of marriage with its
attendant responsibilities. Hence, the Family Code raises the
minimum age of marriage to 18 for both male and female.
Some quarters have criticized the raising of the age for
marriage by the Family Code to 18 years in that it might
result in live-in relationships between young people who
cannot wait to be 18 years before they elope and get married,
and in their having illegitimate children. But these young
couples can still get married upon reaching 18 years with
parental consent, if they still like to do so; and if they do, this
author believes that their children begotten before their
marriage would be legitimated., On the other hand, the
mistake of these young people will be compounded if they are
allowed to legally marry at such an early age or when they
are still too young to understand what marriage is, only for
them to realize later their mistake and eventually break up or
separate,

Art. 6. No prescribed form or religious rite for the sol-


emnization of the marriage is required. It shall be necessary,
however, for the contracting parties to appear personally be-
fore 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 con-
tained 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
10 Art. 7

the marriage to write the name of said party, which fact shall
be attested by the solemnizing officer. (55a) ,
"..

(1) It is only the'tf'ppearance of the contracting parties


before the solemnizing officer required- by this Article
that is a J0hnal requisite of marriage under Art. 3(3),
so that in the absence of such appearance, the
marriage is .void. ,_
(2) The other requirements in this article wilt:no(r~nder
the marriage ,Yglg. even if they are totally-lacking,
like:
(a) there were-no witnesses to the marriage;
(b) the parties Aid not orally declare before the
solemnizing officer that they take each other as
husband and wife; or
(c) there was nomarriage certificate or contract.

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 him by this 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 cases
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; or
(5) Any consul-general, consul or vice-consul in the
case provided in Article 10. (56a)
Art. 7 11

NOTE: The Family Code removed the authority of mayors to


solemniJ.,tmarriages, since experience has shoum that most violations
of the faw on marriage wert committed by these politicians in their
desire to please their constituents. Seoerat bills wert later filed in
Congress to restore said authority to mayors, but the Civil Code
Reoision Committee had always opposed those bills, and none of
them became a law. Houxoer, in the Local Government Code, such
authority was "smuggled in Sees. 444 as to municipal mayors and
H

Sec. 455 as to city mayors. Hence, mayors have again the authority
to solemnize marriages.

List of Persons Authorized to Solemnize Marriale ExclusiV~

Those not listed in this article, no matter how high their


positions in the government are, like ambassadors, senators,
congressmen, etc., cannot solemnize marriages, nclusio unios
es! exdusio alteri~: What the law does not include, it excludes.

Members of the judiciO


The different courts under our judicial system today
pursuant to B.P. 129, the "Judiciary Reorganization Act of
1980", are:
(1) The Supreme Court;
(2) The Court of Appeals;
(3) The Regional Trial Courts (there are 13 judicial
regions all over the Philippines, including the
National Capital Judicial Region comprising Metro
Manila); and _
(4) The Metropolitan Trial Courts in each metropolitan
area established by law (like Metro Manila),
Municipal Trial Courts in each city or municipality,
and Municipal Circuit Trial Courts in each circuit of
cities and municipalities grouped together by law.

, Th~_Sandigang Bayan created by the Constitution and the


Court of Tax Appeals created by a special law are also courts
under our judicial system.
12 AIt. 7

The jurisdiction of the members of the Supreme Court,


the Court of Appeals, the Sandigang Bayan, and the Court of
Tax Appeals to solemnize marriages is the entire country,
which is their territorial jurisdiction.
The jurisdiction of the regional trial court judges and
judges of inferior courts to solemnize marriages is their
territorial jurisdiction as defined by the Supreme Court. Thus,
an RTC judge of Manila cannot solemnize a marriage in
Quezon City, and a municipal trial court judge in Marilao,
Bulacan cannot solemnize a marriage in Malolos, Bulacan.
Priests, rabbis, ministers of aD! church; ,

(1) In order to validly solemnize a marriage, the priest,


rabbi, imam, or minister of any church or religious sect must
be: '
(a) duly authorized by his church or religious sect; and
(b) registered with the Office of the Civil Registrar
General. _
Otherwise, the solemnizing officer has no authority to
solemnize a marriage, subject to the exception of Art. 35, par.
(2) that considers the marriage yalid if the parties or one of
them had believed in good _faith that the priest had authority.
The priest who solemnizes a marriage without pruper
authority will, however, be .criminally liable under the old
Marriage Law (Art. 352, Revised Penal Code).
(2) The priest or minister has the duty to present his
authority to the parties if so requested by them.
(3) This Article amends Art. 92 of the Civil Code that
requires priests, ministers, etc. to register with the director of
the proper government office (meaning, the Bureau of Public
Libraries). Registration was transferred by the Family Code to
the Office of the Civil Registrar General because it is necessary
for such official to have supervision and control over priests
and ministers of the gospel for purposes of the preparation
and proper execution of documents attendant to the
celebration of marriages and their proper submission to the
Alt. 7 13

Civil Registrar General under the rules and regulations that he


will promulgate in connection therewith.
(4) It is required that at least rOt\e of the contracting
parties belongs to. the solemnizing offi'cer's church or religious
sect, and the religion of the parties must be stated in their
marriage contract in accordance with Art. 22(2).
This requirement is intended by the Code to prevent
parties who are in a hurry to get married from approaching
alleged ministers of questionable religious sects with offices
around the City Hall of Manila and other places who make a
business out of solemnizing marriages, usually instant ones
(i.e., without the required marriage license by making it
appear that the parties had already cohabited for at least 5
years even if such is not the fact).

ShiP captains Qr akv1ane chiefs;

(1) These persons can solemnize marriages only in


jlrticulo mortis between passengers or crew members
under Art. 31.
(2) The marriage may be solemnized not only while the
ship is at sea or the plane is in flight but also during
stop Q_verat ports of call, because the authority is
given during the voyage and in such cases, the
voyage is not yet terminated.
(3) Not every ship officer or airplane pilot can solemnize
marriages under this article. He must be the captain
of the ship, or the chief pilot of the airplane. --'
..... ~ •. -- . ,..... -'0< .... __ 1·· .-

Militau commanders of a unit


(1) The military commander must be a commissioned
officer (Art. 32); not a mere a corporal or sergeant.
(2) He can solemnize a-marriage only if it is in articulo
mortis between persons within the zone of military
op-erations, whether members of the armed forces or
civilians. ,, ",\
(3) He can solemnize a marriage in articulo mortis &nl.y in
the labsence of the chaplain. '
14 Art. 8

(4) The unit ofthe military commander, according to the


Committee, must be a battalion, not jus; a company.
(5) The Committee considers the situation one of
emergency, which includes military maneuvers,
police actions, declared or undecla-red wars, civil
war, or rebellion.
(6) Jurisprudence, according to the Committee, ca" also
define the phrase "military operation" more clearly.

Consuls leneuL consuls, OJ vice-consuls;

(1) Only in the case provided in Art. 10 may they


solemnize marriages; i.e, marriages between Filipinos
abroad in the foreign assignments of these officials.
(2) Consuls on home assignment in the Philippines
cannot solemnize marriages.
Art. 8. The marriage shall be solemnized publicly in the
chambers of the judge or in open court, in the church, chap-
el or temple, or in the office of the consul-general, consul or
vice-consul as the case may be, and not elsewhere, except in
cases of marriages contracted at the point of death or in re-
mote 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 swom statement to
that effect. (57a)

(1) This provision is only directory, not mandatory, so


that non-compliance therewith will not invalidate the
marriage.
(~~'an the marriage be solemnized by a judge on a
'?' Sunday, which is not an office day? No, according to
Gabriel v. Gabriel, CA., 56 O.C. 3555. (,irrt~IMri~)
(3) The requirement of public solemniza tion of the
marriage in this article is based on the premise that
the more people witness the marriage, more people
can notify the solemnizing officer if they know of
any impediments to said marriage.
Art. f, Art. 1(J IS

Art. 9. A maniage 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
requited in accordance with Chapter 2 of this Title. (58a)

(1) This provision is useful in small communities where


the people know one another, because the names of
the applicants for marriage license are posted by the
local civil registrar under Art. 17, and anyone who
knows of an impediment to an intended marriage
may inform him about it.
(2) A violation of this provision will not, however,
invalidate the marriage license, but the party who
falsified his or her application for marriage license by
stating that he or she is a resident of the place where
the license was applied for, is criminally liable.
(3) The solemnizing officer is not required to investigate
whether or not the license was issued in the place
required by law (People v. Jansen, 54 Phil. 176).

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 mar-
riage 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).

(1) See also comments under Art. 7, on consuls-general


consuls or vice-consuls.
(2) In these marriages, a marriage license is still required,
to be issued by the consular official who will
solemnize the marriage. \
~~he marriage must be between Filipino citizens
abroad; if one of the parties is a foreigner, this article
cannot apply.
(4) By "Filipino citizens abroad" may mean Filipinos
permanently residing abroad or who are mere,
transients or vacationists there.
16 Art 11

Arl 11. Where a marriage license is required, each of


the contracting' parties shall file separately a sworn applica-
tion 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
req uired to exhibit their residence- certificates in any
formality in connection with the securing of the 'marriage
license. (59a) .

(1) T~e application for marriage license is required to be


~der oatli' so that the applicants would Jell the truth
in their applications. If they Iieregarding any detail
_ therein, they will be committing perjury; .
(2) The oath to the application shall be administered by
the local civil registrar. with whom the application for.
license is filed. . . " _'
(3) The two' parties to the intended marriage are
require? to, file .separate or ind iv idual sworn
applications because the data that they will state
under, oath are.different,' . '"
(4) Even if the' parties falsify the information given in
their "marriage applications, such as their age, civil
Aft 12 17

statu..s, a~senc~ of. rela,tioH. '. ,_'~_ e,ac,h other, etc."


/ the marnage license will· beN if issued by the
'" local civil registrar of the p~ce w re the app~cation
is filed, but the party who/gave wrong information
would be civilly, criminally, and administratively
liable,
(5) If the local civil registrar, knowing the falsity of the
information in the applications, still issues the license,
he shall be civilly, criminally, and administratively
liable, bu~a 'e solemnized pursuant to said
license wi • befiali
r.
,,'
.. I

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 certifi-
cates of the contracting parties or copies of such documents
.duly attested by the petsons having custody of the originals.
These certificates or certified copies of the documents re-
quired by this Article need not be sworn to and shall be ex-
empt from the documentary stamp tax. The signature and
official title of the petson issuing the certificate shall be suf-
ficient 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 Ieast 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 adm in ister oaths. Such
instrument shall contain the sworn declaration of two
witnesses of Iawful age" sett ing 'forth the full n ::me,
residence and citizenship of such contracting party and of his
.or her parents, if known, and the place and date of birth of
II

Art. 13

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 the 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)

(1) The best proof of one's age is his birth certificate or, I,j

if the same is not available, his baptismal certificate.


(2) If the foregoing documents cannot be presented, the
applicant may just present his current residence
certificate or the affidavit of two witnesses.
(3) The parents of the parties may just acrompany them
.to the office of the local civil registrar and certify to
their ages.
(4) .The local civil registrar may, however, be satisfied as
to the ages of the parties in proper cases by just
looking at them.

Art. 13. In case either of the contracting parties has been


previously married, the applicant shall be required to fur-
nish, 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 on her actual civil status and the
name and date of death of the deceased spouse. (61a).

(1) If the death certificate of one's deceased spouse


cannot be presented, an affidavit executed by the
Att.II 19

applicant as to the-facts of the-death of his or her


spouse would do.
(2) If the applicant has had a marriage that had been
annulled or declared null and void, or he has been
divorced under the' old law.

Art, 14. In case either or both of the contracting parties,.


not having been emancipated by a previous marriage, are
'6etween the ages of eighteen and twenty-one, 'they shall, in
additton 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 attached to said applications. (61a)

(1) If a marriage is solemnized without the parental


consent required in this article, the marriage is
-+ voidable.
(2) Parental consent is required if the girl or boy is 18
and above but below 21 years of age. .
(3) If the applicant had already been previous ly
emancipated by a previous marriage, 'although still
below 21 years, he or she, does not need parental
consent.
(4) The parental. consent may be in the form of a/sworn
statement acknowledged in the presence of .two
witnesses before any official authorized to administer
oaths, or the parents or guardian may appear
personally before the local civil .registrar and

G) Ife :9.
accomplish the written consent before him.
ntal co~ent must be for the child to marry a
_.. specific' person; It cannot be consent to many anyone.
I - I

.20 Ad. 15

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 s~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
.appltcation 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 fad shall
be stated in the sworn statement. (62a)

(1) This Article amends Art. 62 of the Civil Code by .


~f,l¥ requiring parental advice if the parties are 21 and
I ~~JAA<..' ()~ above but below 25 years of age. The Family Code
I;CA!I't~1 bt has made the requirement uniform for both parties.
Under the Civil Code, the requirement of parental
3h1Jl1ths advice applies to a male who is 20 and above but
below 25, and a female who is 18 and above but
below 23.
(2) The Committee has decided to retain the requirement
of parental advice in keeping with Philippine
tradition of honoring one's parents (filial respect) by
seeking their guidance or informing them about his
_or her intended marriage.
(3) .The lack of parental advice or an unfavorable
parental advice does not bar the marriage from
taking place, but the requirement is a vehicle to
induce further and more mature reflection by the
parties on the decision to get married during the 3-
month period that they are required to wait before
they are issued a license.
(4) The 3-month period is computed from the completion
of the Ifl-day publication of the application for
marriage license.
(5) If the parties get married without a license, their
marriage is void. If, however, they were able to get a
Art 16 21'

license without the required parental advice, the


marriage is still valid, but they will be liable
criminally and civilly for falsifying their applications
for marriage license.
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 6.htl""u.
solemnize marriage under Article! 7 of this Code or a marriage JU"" '''U
counsellor duly accredited by the proper government agency to f..o • ~
u
the effect that the contracting parties have undergone marriage
counselling. Failure to attach said certificate of marriage
counselling shall suspend the issuance of the marriage license
for a period of three mptth,S from t¥ completion of the
publication of the application. Issuance of the marriage license
within the prohibited period shall subj ect 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 counselling referred to in the preceding paragraph. (n)

(1) Marriage counselling is a new requirement for the


issuance of a marriage license under the Family Code
in cases where the parties need parental consent or
parental advice/ (i.e., they are 18 and above but below
25 years); . ". ' .
(2) The purpose of the requirement isto.enable the
parties to find out if they are compatible before they
get married. Psychological incapacity as defined in;
Art. 36 of ,the Code on the part of either party may
also be discovered through marriage counselling.
(3) Experience has shown that many marriages, especially
teen-age marriages, have failed because of the lack of
pre-marital counselling to the parties. While some
members of the Committee believe tha t this
requirement does not accord with the customs of the
Art 17

Filipinos and may just be disregarded, the majority of


the members think it is a wise requirement and should
be included in the Family Code, since law should be an
instrument of change for the better.
(4) The effect of the lack of the certificate or marriage
counselling is the same as the lack of parental advice;
i.e., the issuance of the marriage license is suspended
for three months.
(5) If only one of the parties needs parental consent or
parental advice, the other party must be present at
the counselling.
(6) Who will do the counselling? The priest or minister
of the church or religious sect to which the party
concerned belongs, Or a marriage counsellor
accredited by the proper government agency.

'NOTE: Arother requirement for the issuance of a marriage


license is attendance of the family planning seminar required by
P.D. 965, with certain exceptions.

Art. 17. The local civil registrar shall prepare a notice


which shall contain the full names and residences of the ap-
plicants 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 mar-
riage license shall be issued after the completion of the peri-
od of publication. (63a)

(1) The posting of the application for marriage license


under this Article is indispensable to the issuance of
the license.
(2) If, however, a license is issued. without complying
with this provision and a marriage is solemnized on
Arl.18

the basis of such license, the marriage is -:-..._ .......~


However, the local civil registrar who did not comp y
with this provision will be liable criminally, civilly,
and administratively.
(3) The reason for the required posting of the application
for marriage license is to inform the public of the
intended marriage so that if they know of any legal
impediment thereto, they may inform the local civil
registrar about it. While such requirement may be of
no practical value in big cities and communities, it is
very useful in small towns and municipalities where
practically everybody knows every one else.
Arl 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 a 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 interested party. No filing fee shall
be charged for the petition nor a bond required for the
issuance of the order. (64a)

Under Art. 64 of the Civil Code, the local civil registrar is


given quasi-judicial authority to investigate any information he
receives of any legal impediment to an intended marriage, and
may withhold the issuance of the marriage license if he is
convinced that such impediment exists, unless otherwise
ordered by a competent court. (_-
The Family Code has amended the above article of the
Civil Code in that the local civil registrar, who most often has
no legal knowledge, is no longer given quasi-judicial power to
investigate an alleged legal impediment to an intended
marriage. What he is required to do, if he receives information
as to an alleged impediment, is to note it on the application
for marriage license and then refer the matter to the
competent court if he thinks such action is warranted. But he
should still issue the marriage license, unless ordered by a
21 Ad. 19, .Ad. 20 ~nd Art 21

competent court at the instance of an interested party or even


at his own instance. '
Art. 19. The local civil registrar shall require the pay-
ment of the fees prescribed by law or regulations before the
issuance of the marriage license. No other sum shall be col-
lected in the nature of a fee or tax of any kind for the issu-
ance 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. (6Sa)

Art. 20~The license shall be val~d in any part of the


Philippines for a p~riod of one hundred twenty days from'
the date of issue, and shall be deemed automatically can-
celled at the expiration of said period if the contracting par-
ties have not made use of it. The expiry date shan be
stamped in bold characters on the face of every license is-
sued. (6Sa) _

(1) The marriage license may be used anywhere in the


Philippines but not in foreign countries.
(2) The license is good for only 120 days. It is not subject
to extension and once it has expired, it is deemed
cancelled and cannot be used anymore. If the parties
still want to get married after the expiration of the
license, they must apply for a new license.
(3) The Family Code requires that the expiry dat ... of the
license must be. stamped in bold characters on its
face, so that the parties will be fully aware of its
expiration date.

Arl 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.
Art 22
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)

(1) The capacity of a foreigner to get married in the


Philippines is governed by his national law, a foreign
law, so that our government offices and courts
cannot take judicial notice of said law. Hence, if he
applies for a marriage license to be able to get
married in the Philippines, he is required to present
a certificate of legal capacity to contract marriage
from the embassy or consular office of his country in
the Philippines, since they are the ones who know
the national law of said foreigner and whether he has
capacity to marry under said law.
(2) A divorced foreigner can be issued a marriage license
to marry again in the Philippines provided he can
present the certificate above mentioned, which means
that his divorce is recognized by his own country.
(3) If the foreigner is stateless or a refugee from another
country, so that there is no embassy or consular
office from which he can get the above-mentioned
certificate, it is enough that he executes an affidavit
stating the circumstances showing his capacity to
contract marriage.
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 pate and precise time of the celebration of the
marriage;
(4) That the proper marriage license has been issued
according to law, except in marriages provided for
in Chapter 2 of this title;
26 Art. 22
(5) That either or both of the contracting "parties have'
secured the parental consent in appropriate ocases;
(6) That eithez 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
settlements, if any, attaching a copy thereof. (67a)

(1) Under Art. 67 of the Civil Code, the parties are


. required to state in their marriage certificate or contract their
full names, domiciles, and ages; the "fact t~at they have been
issued the proper marriage license; and that they have the
consent or advice of their parents in the cases where these are
required.
This Article of the Family Code, however, requires the
marriage certificate to state the following additional
information: .
(a) The sex, citizenship, and religion of each party;
(b) The date and -precise time of the celebration of the
marriage; and
(c) A statement that the parties have entered into a

. to the marriage certificate. , it'lo+


marriage settlement, if any, attaching a copy thereof

(2) The marriage certificate is not an essential 0 formal


requisite of marriage without which the marriage wi be void
(Madridejo v. De Leon, 55 Phil. 1). An ·oral marriage is,
therefore, valid, and failure of a party to sigh the marriage
certificate (De Loria v. Felix, 104 Phil.) or the omission of the
solemnizing officer to send a copy of the marriage certificate
to the proper local civil registrar (Pugeda v, 'Fflas,oMar. 31,
1962, 4 SCRA 49), does not invalidate the marriage. Also the

I
mere fact that no record of the marriage can be found, does
. not invalidate the marriage provided all the requisites for its
validity ilre frese~t ~a~t.equ~~. .A., 205 SCRA 33~. .
(3) e't;··· e certificate is, however the best eVIdence'
tha t - arrlage does exist. ===- ¥¥=
J

An. 2.3 And An. 24 27

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
original of the marriage license and, in proper cases, the
affidavit of the contracting party regarding the solemnization
of the marriage in a place other than those mentioned in
Article 8. (68a)

While Art. 68 of the Civil Code requires that the marriage


certificate should be in three co ies this Article requires that
the certificate should be in our copie to be distributed as
follows;
(1) The original shall be given to either of the contracting
parties;
(2) The duplicate and triplicate shall be sent not later
than 15 days after the marriage to the local civil
registrar of the place where the marriage was
solemnized; and
(3) The quadruplicate
.!~ :,plem.nizing officer, ~ -.; _
_ 1~~·. .
Remember that even if no one receives a copy of the
marriage certificate, the marriage i~ilid).ahd (Jones v.
Hortiguela, 64 Phil. 179). ~

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 Iicenses shall be
exempt from documentary stamp tax. (n)
26 Art 2S snd Art. 26

The preparation of documents and administration of oaths


by the local civil registrar in connection with marriages are all
free from fees and documentary stamp tax. ,

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 th~
applicants, the date on which the marriage license was
issued, and such other data as may be necessary.

,This Article requires all ~ppliCations for marriage license


to be entered in the registry book strictly in the order in which
they are received; that is, chronologically or in accordance with
the dates of application. This means, too, that the applications
should be duly numbered, to avoid the bad practice in offices
of the local civil registrars of leaving certain numbers in the
registry book of applications for marriage licenses blank, and
then selling these blank spaces to couples who want instant
licenses (i.e., without complying with the Ill-day posting) by
antedating the dates of their applications for marriage license.
. The registry book above-mentioned should also record
the names of the applicants, the date on which the marriage
license was issued, and other necessary data.

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. (71a)
, . Where' a marrf ag e between a' Filipino citizen and a
foreigner is vattdly celebrated and a divorce is thereafter
validly obtained abroad by. the allen spouse capacitating him
or her to remarry, the Filipino spouse shall likewise have
capacity to remarry under Philippine law. (n) (as amended
by E.O. No. 227, dated July 17, 1987) ,
This Article retains the rule in Art. 71 of the Civil Code
that marriages solemnized abroad, if valid in the country
where celebrated, are also valid in the Philippines (the rule of
x loci celebratlonis),
The same Article, however, amends Art. 71 of the Civil
Code as to the exceptions to the rule of lex loci celebrationis ..
For while Art. 71 of the Civil Code excepts therefrom only
bigamous, polygamous, and incestuous marriages as
determined by Philippine law, the above Article excepts all
those void under Articles 35(1), (4), (5), and (6), 36, 37, 38, and
applies the rule of lex loci celebrationis only to foreign marriages
solemnized in accordance with the formal requirements of the
countries where they were celebrated but otherwise valid
under the Family Code.
In other words, a foreign marriage, although valid in the
country of celebration, will still be void in the Philippines if:
(1) Either or both parties did not have the legal capacity
to get married (Art. 35(1».
(2) The marriage is immoral for being bigamous or
polygamous (Art ..35(4».
(3) Consent of one party is lacking because of mistake as
to the identity of the other (Art. 35(5». ,
(4) One of the parties was psychologically incapacitated
at the time of the marriage to comply with the
essential marital obligations (Art. 36);
(5) The marriage is incestuous (Art. 37); or
(6) The marriage is void by reason of public policy (Art.

3~i
, A r t '. on th e va l'd'
1 Ity 0f forei '.
oreign marriages \\app ures,~ V
D
however'lLiilf~Foreign marriages of foreigners or
of a Filipino a~ a urelgner are governed by the rules on
-b- Conflict of Laws.
3D

'""' of divorse obtained abroad


bcr Filipino _usc;
U an alien fmpl b.-
Ad 26

. Under the second paragraph of the above Article, where


a Filipino is married to a foreigner and the latter thereafter
obtains a valid divorce abroad capacitating him or her to
remarry, the Filipino spouse shall likewise have the capacity to
remarry under Philippine law.
This provision was not originally approved by the Civil
Code Revision Committee, but it was presented and approved
at a Cabinet meeting after Pres. Aquino had already signed
the Family Code as Exec. Order No. 209. Hence, the President
promulgated another executive order - No. 227 - amending
Art. 26 of the Code by including this provision as a second .
paragraph therein.
The idea of the amendment is to avoid the absurd
situation of a Filipino as being still married to his or her alien
spouse, although the latter is no longer married to the Filipino
spouse because he or she had obtained a divorce abroad
which is recognized by his or her national law.
The amendment will also solve the problem of many
Filipino women who, under the Civil Code, are still
considered married to their alien husbands even after the
latter have already validly divorced them under their (the
husbands') national laws and perhaps have already married
again.
Note, however, that the above amendment does not
apply.
(1) to a divorce obtained by a Filipino abroad from his
or her Filipino spouse, which divorce is void because
divorce is not allowed in this country, and a Filipino
is governed by his national law wherever he goes
(Art. 15, Civil Code); or
(2) to a divorce obtained by a former Filipino who had
been naturalized in another country after his t.
naturalization, as it. might open the door to rich
Filipinos' obtaining naturalization abroad for no other
ABROGATED:
ABROGATED:
Republic
Republic vs
vs Obrecido
Obrecido (2005)
(2005)
Art. 26 31

reason than to be able to divorce their Filipino


spouses.

j£ffec:t of .foreipt divorce on alien s.p<>ns.s;,

An alien spouse who has divorced his Filipino wife can


no longer charge the latter with adultery because he can no
longer be an "offended spouse". (Pilapil v. Ibay-Somera, 174.
RA 553). {
4./"" ~ V(AI'\ D\)r"", ,,~ R.}~b\Jt, JMr

A)"'y t7'"teJl f Y
~ ~~lIhl;L V). 0,. b~(/(t1o 'tJ z,rod'-

....jHJ. J)~ J'>til...t Q J:>iO\b)~~r,-A


Aft. 27 , .
" • i. ~.-, ... •.
, .
~ -:: t< Iz;.~ ..... _; -." ;..:.... l

CHAPTER 2 •
/:i"ic
')h~~d'" ~MARRIAGES EXEMPT FROM,THE
"'PI" :n ('" .;:". ,LICENSE R'EQUIREMENT' . ) , ..
_

Pr~~·Sfatement _'
.' •• I_!J ,. oj •• )

;,
. 1;'·

!,'
j

t- ~. ',;" r:t: .:" ;-'~I.,:~'I


f'; ... ! f .,...j;.': .'....

. b"nte, rlUlriiages' ctWeted by this ·Ch~~ter.are the so-called


"exceptional marriages" under Arts. 72 to 79 of the Civil Code
of theiPhi}ippines. Such marriages..are not really "exceptional"
in the.,sense'ofbeing extraordinary, however, because what-
makes-them different from other 'marriages is only the fact
that they 'are exempted from the required marriage lioense.To
correct the 'misnomer, the Family-Code refers to .them as
"marriages-exempt from the license requirement", which is
actually whafthey 'are. 'l , '
z :,":.

}ttL 27;, In' case 'either or b~th, of. the contracting parties
are at th~p'oint of death, the marriage 'may be solemnized
without th'eknecessilf'of a marriage license and shall remain
valid even if the ailing party subsequently survives. (72a)

', "0)' "the' marriage referred to in this Article is the


':'>~!. ~n'marrjllge in IU'ticulo mortis; ie., one or both of the
.,'.' ~ co-4fracting parties are dying or at the point of death. '
': .', , ·'In ;sud\' case, there' is no need for a marriagelicense
, ':because'obviously, the dyingparty would already be
,;, c~'.\.a~all··by' the "rune the license is issued.
,~, ~"(2ij""W·hat·happens if the dying party survives or
.IJS :i'-;':;'rec'6\rers?fArt. :72:6f the Civil Code, which is the'
.am,', :t,~ sottrce
'of tftf8 'Article, does not provide for such a
situation. The above Article, however, expressly'
L~' ~l!.t! ..'~'';'. '. ~... I.• '~ ; .~_

,'32'
Arl.28

,. provides that the marriage remains valid even if the


-.ailing or dying party -survives or does; not die.
(3) ,1The marriage in this Case may be solemnized by a
-priestor -a minister of any religious sect, a judge, or
any of the' persons referred to in Arts. 21 and 32 in.
the ;special cases covered' by- said Articles.
(4) "At the point of death" must be distinguished from
'~i:ndanger of: death" ..,'A member-of the army who
takes part in a' military-operation aga-inst the.NPAs
or the Muslim insurgents may be "in dang.er of
death", but-not 'lat: the-point of death." '
... "... :! : ;! : I ' ~ I , I... ! _; ; r ~ ~. I 1 j • ~ 'i . ~.r .- . LI'

Art. 28. If the-resideneerof either-party-is soIocated that


there is no' means "of transportatiun to: 'enable ~ch: .party to
appear personally before -the -Ioeal dv1l registrar, th.e·
marriage: -may' be solemnized; without -the rlecessily of a
marriage license. ·(72a}.· . r , ',. r • I . '. " '.1 • I' • -

)1, 'r , .' 'I 7. I J


',r .1-' • ..." • I i I 1 , 1- 1~.i ,,,

This -Article covers-marriages -inremote'or ;distanf'places


formerly governed by Art. 72 of the Civil Code.
Art. 72 of the Civil COde' has; however;' been .atnetfdE!d by
this Article as follows: : ' ,. l' '
. tl)t' While Art;' 72thf the' 'Civil'Codoe ~'1ies ~'onlY"if' the
fetnale "resides .more than 15' kitdtn~~ ftom -the
. : . nltinicil'al building~ 'the 'above Aititi~~a~1i~ *hether
. . it is the 'mate
dr·the; fuinale'whdl1N~'irl It'!.felm.ote or
distant place, - ,)' . "1 , _ ,

(2) The above article does 'not specify the distance of the
residence .of either F arty from the m\lniciP,al building.'
All that is required is that the.1'f7Sid~(:~le~wer 'party
be.so located that thereis no means or transportation to
en~ble such :pa~ty to, r;ppear before- ~e~ ~p~al civil
regISter.' . , . . . ' .. .'; .
(3) Art. 72 of the Civil Code requiresthat tnentshould
De no. railroad or provincial or local highways
between the party's residence and the municipal
building. The above. Article has' eliminated this

S R c,_ '.~WY.TRR ARV


Art. 29 snd Art. 30

requirement and provides instead that there must be


no means of transportation to enable a party to
personally go to the office of the local civil registrar,
which is usually in the municipal building. In other
words, if such party can reach- the municipal
building by boat or cart or even by just riding on an
animal like a horse, carabao, or cow, he or she is not
exempt from a marriage license although there may
be no roads or railroad in their place.

Art. 29. In the cases provided for in the two preceding


articles, the solemnizing officer shall state in an~ffidavit
executed before the local civil registrar or any other person
legally authorized to administer. oaths that the marriage was
·performed in srticulo moras or~hat the residence of either
party, specifying the barrio or barangay, is so located that :
there is no means of transportation to enable such 'party to
appear personally before the local civil registrar an~hat the
officer took the necessary steps to ascertain the ages and
relationship of the contracting parties and the-absence of a
legal impediment to the marriage. (72a)

Art. 30. The original of the affidavit required in the last


preceding article, together with a legible copy of the'
marriage contract, shall be sent by the person solemnizing
the marriage to the local civil registrar of the municipality
where it was performed within the period of thirty days
after the performance of the marriage. (73a)

(1) The affidavit of the solemnizing officer required by


this Article takes the place of the marriage license
and constitutes an assurance that the parties are of
the proper ages and that there is no impediment fo
their marriage. j
(2) But lack of this affidavit does not invalidate the
marriage in articulo mortis (Loria v. Felix, June 20,
1958, 104 Phil. 1).

I •I ~

. ," j
:~""-;
. :':; ~,~,-
'" ~- - ~:
;.'~.'.:.: .. .~ :.Z,,)
;1
Arl. 31, Arl. 32 snd Arl. 33 3S

(3) No particular form of the marriage in articulo mortis


is required. The law as much as possible intends to
give legal effect to the marriage. (Cruz v. Catandes.
CA, 39 O.C. No. 18, p. 324).
The failure of the solemnizing officer to comply
with this requirement will not also invalidate the
marriage.
Art. 31. A marriage in srticulo moris 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. (74a)

See comments under Art. 7, supra, on ship captains or


airplane chiefs.
Art. 32. 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. (74a)

Also see comments under Art. 7, supra, on military


commanders of a unit.

Arl 33. Marriages among Muslims or among members


of the ethnic cultural communities may be performed validly
without the necessity of a marriage license, provided that
they are solemnized in accordance with -their customs, rites
or practices. (78a)

The similar provision of the Civil Code (Art. 78 thereof)


requires that the Muslims or pagans should live in "non-
Christian provinces" before that provision could apply. But
this Article eliminates such requirement in order not to limit
the application of the provision. In other words, as long as the
parties are Muslims or members of other cultural minorities,
their marriages are exempt from the requirement of a
Art. 34

marriagelicense if performed in accordance with their customs


or practices even if such marriages are held outside non-
Christian provinces.
Art 34. No license shall be necessary for the marriage
of a man and a woman who have lived together as husband
and wife for at least five years and without any legal
impediment to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before any
p erson authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties' and
found no legal impediment to the marriage. (76a)

~eg,uisjtes {OJ: Almlicati04 of Ar!js;Ie;


(1) The man and woman must have been living together
as husband and wife for at least five years before the
"
marriage;
(2) The parties must have no legal impediment to marry
each other (for example, they are not fir~t cousins).
(3) Thefact of absence of legal impediment between the
parties must be. present at the time of the marriage.

(4) The parties must execute an affidavit stating that


they have lived together for at least 5 years.
(5) The solemnizing officer must also execute a sworn
statement that he had ascertained the qualifications of
the parties and that he had found no legal
impediment to their marriage.
,Reason for the PrO'yisioD;
. ,

The reason for the ahove provision is the same. reason ~


behind Art. 76 of-the Civil Code; i.e., that "the publicity
attending the marriage license may discourage such persons
from legalizing their status" (Report of "::ode Com., p. 80).
Arl. J4 37

Besides, the marriage of the parties will result in the


legitimation of natural children born to them during their
cohabitation.

Eff_ed 01 PaIse AlMayit of the Parties;,

If the parties falsify their affidavit in order to have an


instant marriage, although the truth is that they have not been
cohabiting for five years, their marriage will be void for lack of
a marriage license, and they will also be criminally liable.
'"

(a) Cohabitation for 5 years under this Article should be


in the nature of a ~rfect \111ionthat is valid under the law
but rendered impeIJect only R5' the absence of the marriag:e
contrad._" Since the husband had a subsisting marriage at
. the time he started cohabitation with respondent their,
cohabitation cannot be as "husband and wife." .

(b) Death of the husband does not preclude the heirs of

\,Ull
\ !he first marriage to declare their father's second marriage
and void for lack of marriage license.

~0\ ~ct',)w,,",Q '''' .\~e bF.. 't ,~+c;ll\,,''';C, l(l:?q eJ,~ 'JV',
Art JS

.
CHAPTER 3

VOID AND VOIDABLE MARRIAGES

Void and Voidable Matrices distinluishedi.


I
v.w Mint.. , I '!lIdllzlI M......
1. As to na ture: Inexistent from time of Valid until annulled by
performance. competent court.
I

2. As to suscep- Cannot be convalidated. I


I
Can be convalidated ei-
tibility of ther by free cohabita-
convalidation. tion or prescription.

3. As to effect No community property; Absolute community


on property: only co-ownership (Art. I exists unless another
I
147) I system is agreed upon
in marriage settlement.

4. As to effect I Children are iIIegi- Children are legitimate


on children: timate under Art. 165 if conceived before de-
(subject to exceptions). I cree of annulment.
I

I !
(a) May be attacked (a) Cannot be attacked
. directly or collaterally, COllaterally, only direct-
but for purpose of re- - Iy; i.e., there must be
5. As to how maniage, there must be decree of annulment.
marriage may judicial declaration of
be impugned: nullity. (Art. 40).
(b) Can still be impugned (b) Can no longer be
even after death of
parties.
impugned after death
of one of the parties.
-
I •

Art 35. The following marriages shall be void from the


beginning:
(1) Those contracted by any party -::._
dow eighteen years
of age even with the consent of parents or guardians;
Arl.35 39

(2) Those solemnized by any person not legally authorized


to perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the
solemnizing officer had to the legal authority to do SO;
(3) Those solemnized without a license, except those
covered by the preceding Chapter;
(4) Those bigamous or polygamous marriages not falling
under Article 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
-(6) Those subsequent marriages that are void under
Article 53.

Contra.ct by P;trties Below 18 Years;

(1) The marriage is void even if the parties had parental


consent because the essential requisite of legal
capacity of the contracting parties (Art. 2 (1» is
lacking. •
(2) The marriage is void whether only one or both of the
parties are below 18.

Solemnized by,Person with No Authorit!;


(1) Refer to comments under Arts. 7, 10, 31 and 32.
(2) The marriage is, however, valid if either or both
contracting parties had believed in good faith that the
solemnizing officer had legal authority. /
(a) The belief of one party would suffice. V
(b) "Good faith" means after reasonable inquiry ar«:
investigation.
Solemnized Without A Mar,riag:eLicense:

This is subject to the exceptions in the preceding chapter


of this Code.

Bisamous or Polygamous Marriage:

(1) An exception is the bigamous, voidable marriage


I ~

40

under' Art. '41 (where One of the s-pO'fl'ses is an.


absentee). . ...... '., ...
(2) Here, th~ .good ~~ith of either party is. immaterial,
unlike in Art. 69·of the ~ivil Code-of Spatnwhich
was never enforced-in tht'Philippines but which was
apJlied by the Supreme Court ia.several old cases
(Intestate EState .ofBenito Mar:c~lo,.60 Phil. 442;
Pisalbon v. Bejec, 74 Phil 88; Lao v. Dee Tun. 45 Phil
739;, SyLoc .Li~ng v; ~y Quia, 16 Phil. 137).
• r o r c. ',:.n 4·'''',,:''~.~~":r.?.rr:~'f~.:·' ,~.,~•.~,.~,,-.,,."'-' r ~':': .~ t "

Contrasted Thmtilh Mjdak •. o( Op"PadX'M iq Identity of


'I . ,
. ; ...__L

-. .... • of _ "'~ t ' ~:'J '-'.~ ;!' ~'.f.'_-· "oJ


(1) Under the Civil Code, this constitutes fraudand is a
ground only for annulment of marriage (Art.86 (1»,
:' sq t1t~~i~~e,'il'~¢ag~, ~ s~pl.valid .unt~ annulled. Tl).e
Csmmittee is of the belief, however, that ihnere was e

a '~~~~~~ ,~!\}~e•.p~J!..9f one p~dy;a~. to the ide!,tity


of t~e. oth.el', ,there was really n(); ~o~~~.~t to. the
ll\ar~age o~ the part ofthat party and the marnage
is thUs VOid ab initio. :" ., "J t" .
(2) Examples." . ,c, ~. \ .,. (

(a) .A wll~;il\)ove wiUt B and the two decided .to get


. married, At 'the w~dding ceremony, however, it
. ",as C, the 'twin brotherof B, \v~~ appeared and
who·~cJually,gof:rn~·r:ried·to i\ without the
\latte~j~i\owledge;,·Th.e,:<in~lmai~' Is.';void. '
<e~ .if,~·~a:;,B_~~~e~:4' t?·.<~~t ~r.~rH~d·'but at the
. wed94\g ceremony; ~,no~1ier..·~Q~~~ who was
'/ 'he~Vily:-'ve)I~ ~ppei~.~~d.~·~u~ny"got roamed
Th~ma.m.a~w
to .A:· ,a~o:,~;oip. .' . <~

(3) In other ,~8#1~~;:~~~,~,ist:a,k~.~e~(~, !I~t~ regard ..~o


the physical identity of one of the parties and not
with r~garQ.,ine'(e'y .to the character, health; rank,
fortune, ..,p1"J;ha,s~ity,qf, 0lle P~rtyi~p th~ Ji!.~~riage.1h"t
is,' there Was' a subStitution of another party for the
party who agreed to the marriage, without the
knowledge of the other contracting party.
Arl.36 41

Enumeration of Void MarriaGs in this Article Not Exclusive;

The enumeration of void marriages in this Article is not,


however .. intended to be exclusive, as there are marriages
which lack any of the essential or formal requisites of
marriage under Arts. 2 and 3 and are void even if this Article
does not include them, like marriages in jest, common-law
marriages, marriages by proxy, etc. A second marriage
without' complying with Art. 52 (delivery of the presumptive
legitime of the children of the annulled marriage or the
marriage that was declared void ab initio) is also null and void
under Art. :53. ",

ArL 36. A marriage contracted by any party who, at tl1'e


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
. ~tnanifest only after its solemnization. (n) (as amended by
&0. No. 227, dated July 17, 1987).
" .
P.,rovision is New and Taken from Canon Law:
~ I I '_ I . '.,. _ '

This is a J .... .::w provision which was taken by the


Committee frcrn par. 3 of Can: 1095 of the New Code of
Canon Law which took effect on November 27, 1983, reading:
"Matrimonial Consent"
Cannd-095. The following are incapable of contracting
marriage:
1. Those who lack sufficient use of reason;
2. Those -who suffer froJn a grave lack of discretionary
judgment concerning the essential matrimonial rights
. and obligations to be mutually given and accepted;
3. Those who, because of causes of a psychological
nature, are unable ·to assume the essential obligations
of marriage." .' . ,
, The Committee decided to adopt the third paragraph of the
above provision of the New Code of Canon Law as a ground for
declaration of nullity of man:iage for the following reasons:
42 Art 36

(1) As a substitute for divorce: Divorce being very


controversial and would surely be strongly opposed
by the Catholic Church, it was decided to draw from
Canon Law itself on a ground that does not conflict
with the traditional civil law concept of voidable
marriages.
(2) As a solution to the problem of Church-annulled
marriages: There are many marriages that have
already been annulled by the Catholic Church but
still exist under the civil law. This provision would
give many parties to church-annulled marriages a
cause of action to have their marriages declared void
by the civil courts.
(3) As an additional remedy: The provision would also
give a remedy to parties who are imprisoned by a
marriage tha t exists in name only as they have long
separated because of the inability of one of them to
perform the essential obligations of marriage.

PmholQs,ical lncavacill Distinll1ished from Vice of Consent


Psychological incapacity has nothing to do with consent
to marriage. A person might have given free and voluntary
consent to a marriage (that is, his mind knew what marriage is
all about and all the rights and obligations arising therefrom),
but his will may not be capable of fulfilling such rights and
obligations. Hence, psychological incapacity is not a question
of defective consent but a question of fulfillment of a valid
""'"zp. 22::'
consent.
-
Pmbo1ogical Incapacil]' Distinluishetirorq_ Insanity;

Mental incapacity or insanity of some kind, like physical


incapacity, is a vice of consent, while psychological incapacity
is not a species of vice of consent. As already stated, a person
might have given valid consent to a marriage, but because of
a psychological disorder in his make-up, he is unable to
assume the essential obligations of marriage.
Ad. 36 43

Furthermore, insanity or mental incapacity:


(1) May be of varying degrees;
(2) Is curable, being an illness; hence, the marriage is
capable of ratification or convalidation
(3) Has lucid intervals;
(4) Is a ground only for annulment of marriage in many
countries.

Why Were No Examples of Ps.ychological Incapacity Given


in this Article?

The Committee did not give any examples of


psychological incapacity for fear that the giving of examples
would limit the applicability of the provision under the
principle of ejusdem generis. Rather, the Committee would like
the judge to interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and researchers
in psychological disciplines, and by decisions of Church
tribunals which, although not binding on the civil courts, may
I
be given persuasive effect since the provision was taken from-
Canon Law.
•I
PsycholO,lical Inca,pacUy Must be Present at the Time of the
Marriage: .

To be a ground for declaration of nullity of marriage, the


psychological incapacity of either party to comply with the
II
essential marital obligations must already be present a t the
time of the marriage, although it might have become manifest
only after the marriage.
Father Gerard Healy, S.J., whom the Committee consulted
on this matter, gave the example of a man or a woman who,
after the marriage and after having a child, cracks up under
the heavy responsibility of being a parent. Father Healy said I
that this proves that the psychological weakness or disorder in :
that person's !character or make-up has always been there all tt~J.. II/ I
the time, for # having children would cause a person to crack ".-,
up, this world would be filled with disturbed people.
A.d. 36

Is the ~!1'chQIQSicaU! Inc_dtated Person I1isgua}ified from


MalI1~ ~ain? ,.......

According to Father Healy, the Church does not impose


an absolute prohibition for a person prov,en to have a
psychological defect to marry again because he or she may get
the right partner who understands his problem. He says that
a person with psychological incapacity may be all right for B
but not for C because the former relationship compensates
while the latter aggravates the problem.
The Committee also believes tha t there is no need to
disqualify the psychologically incapacitated from contracting
another marriage, because the fact of his psychological
incapacity for marriage would be revealed anyway when he
applies for a marriage license for the second marriage and the
other party is thus placed on guard to conduct discreet
investigation about the matter.
[Guides to Inteq)[elation of teon "PD'cholOSic.a.l IncapacilJ!'
I J ." I

.-Dr. Gerardo Ty Veloso, former presiding judge of Br. 1 of


the Metropolitan Marriage' Tribunal of the Catholic
Archdiocese of Manila, in his booklet on the accepted grounds
for church annulment" of marriage, states that aside from the
already classical neuroses, psychoses, and other personality
disorders known to psychologists that render a person
psychologically unfit to assume and perform the roles of
marriage, the following grounds may be mentioned as more
familiar to laymen: . ,
(1) homosexuality in men or lesbianism in woman
(attachment to the same sex for sexual fulfillment):
(2) sa tyrjasis in men or nymphomania in women
(excessive and promiscuous sex hunger);
(3) extremely low intelligence, .
(4) immaturity; Le., the lack of an effective sense of
rational judgment -and responsibility, otherwise
peculiar to infants (like refusal of the husband to
support the family or excessive dependence on
parents or peer group approval);
.Alt.36 45

(5) epilepsy, with permanently recurring mal-adaptive


manifestations;
(6) habitualalcoholism, or the condition by which a
-person lives for the next drink and- the next drink
and the next drink; and
.(7) criminality, or the condition by which a person
consistently gets in trouble with the law or with
• socially established norms of conduct .

Furthermore, based on dialogues with Father Healy and


another expert on church annulments, Archbishop Oscar Cruz
then of the Archdiocese of Pampanga, the Committee gathered
the information that psychological incapacity to discharge the
essential obligations of marriage may also be made manifest: ,
(1) by the refusal of the wife to dwell with the husband
, , "after the marriage without fault on the part of the
. latter or to have sex with the husband or to have
'4; 'children;
(2) when either party or both of them labor under an
affliction that makes common life as husband and
wife impossible or unbearable such as compulsive
-) g~rhb1ing or unbearable jealousy on the part of one
~-il~yor other psychic or psychological causes of like
import and gravity; and
(3) irti 'manifestations of' sociopathic anomalies in
husbands like sadism or infliction of physical violence
(jn~(thewife, constitutional laziness' or indolence, drug
lt~pendence or addiction, or some kind of
"psychosexual anomaly.
As to the general characteristics of the psycho 'c_,!l
iD('apac~ Dr.' dds that it must 'exhibit ftn/it
antece,dence an _ 'm;llriWiHt , gravity, if the subject cannot cany
o~L ,enormal'an or' inary duties of marriage and family.
shouldered by an)/average couple existing under ordinary
circumstances of life and work; antecedence, if the roots of the
·trouble can be. traced to the history of the subject before
marriage although its overt manifestations app~ar only after
46 Art. 36

the wedding; and incurability, if treatments required exceed the


ordinary means of the subject, or involve time and expense
beyond the reach of the subject.
Who Can File the Action to Dedll[e the Martim Void?

Either party, i.e., even the psychologically incapacitated


can file the action. .

IP~!~!:rt~
Arhcle Pre§cnbel
to Dware the Marriale Void linder this

Like any action for declaration of nullity of marriage, the


action under this Article does not prescribe. However, as an
amendment to the Family Code made by E.O. 277 dated July
17, 1987, for marriages solemnized before the effectivity of this
Code, the action or defense for the declaration of nullity of
marriage under this Article prescribes in ten years after this
Code becomes effective on August 3, 1988 (Art 39) Still later
RA. 8533 makes all actions under this Article imprescriptible.
Action for Annulment of Marriase May Also Be Filed in
froptr Cases;
If the case can be made to fall under any action for
annulment of marriage and such action has not yet prescribed,
an action for annulment of marriage may be filed instead of
an action for declaration of nullity of marriage under this
Article. Such an action would be more advantageous to the
aggrieved spouse, as the marriage, being considered valid
until annulled, will have all the effects of a valid marriage.

What is the Status of the Children Under this ArticlgJ

The children conceived or bam before the decree of nullity


of marriage are consido-ed legitimate ,(Art. 54). This, together with
children born of the subsequent marriage under Art. 53, are
exceptions to Art. 165 defining illegitimate children.
I ' \

How Should th'e PI'Ql?Crties acquired by the Parties be


Dimosed of Aftes the Marriage. is Nullified?
Arl.36 47

The "family home" and all their common property shall


be divided between them in equal shares, since the liquidation
and partition of said properties are governed by the provisions
on co-ownership, not by Arts. 50, 51, 52, in relation to Arts.
102 and 129, of the Family Code (Valdes v. RTC of Q.c., GR
122749, July 31, 1996). .

~ailable lurisprudence undrr Art. 36:

. In the case of Leouel S nos v. C.A!. and Julia Rosario


Bedia-Santos, GR No. 112019, decided by the Supreme Court
en bane on January 4, 1995, (], Vitug, ponente), Art. 36 of the
Family Code was interpreted by the High Court for the first
time. After quoting this author on the reasons why the
Committee did not give example- of psychological incapacity,
the High Court among other things held:

(a) The jurisprudence under Canon Law on the subject


prevailing atthe time of the Code's enactment cannot be
dismissed as impertinent for its value as an aid to the
interpretation or construction of the codal provision.
(b) Looking at the authorities cited (by the High Court)
and the deliberations of the Code Revision Committee on the
subject, the use of the phrase "psychological incapacity" in Art.
36 of the Code -

"has not been meant to comprehend all such possible cases of


psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like
circumstances xxx. Article 36 of the Family Code cannot be
taken and construed independently of, but must stand in
conjunction with, existing precepts in our law on marriage.
Thus correlated, 'psychological incapacity' should refer to no
.less than a mental (not physical) incapacity that causes a party
to be truly incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the parties
to the marriage which, as so expressed by Article 68 of the
Family Code, include their mutual obligations to live together,
observe, love, respect and fide_1ityand render help and
48 Art. J6
support. There is hardly any doubt that the intendment of the
law has been to confine the meaning of 'psychological
incapacity' to jhe most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to
give meaning and significance to the marriage. xxx"
Until further statutory and jurisprudential' parameters are
established, f!!Very circumstance that may have some bearing on
the degree, extent, and other conditions of that incapacity,
must, in every case, be carefully examined and evaluated so
that no precipitate and indiscriminate nullity is peremptorily
decreed. The well-considered opinions of psychiatrists,
psychologists, and person with expertise in psychological
disciplines might be helpful or even desirable."

(c) Thus, the fact that respondent wife left her husband
-and baby two years after her marriage to work as a nurse in
the U.S. and never returned, and that her husband desperately
tried to locate her in the U.S. but all his efforts to find her
failed, were considered by the High Court not sufficient for
the wife to be considered "psychologically incapacitated" under
Art. 36 of the Family Code. The Court recognized that
petitioner husband had been aggrieved, but held that the
factual setting of his case does not come close to the standards
required to declare a nullity of marriage.

The above decision of the High Court was followed by


~h"""i-:--c-:. g oi v. • . and Gina La-Tsoi, GR No. 119190, Jan.
16, 1997, wherein the Court held that "the senseless and
protracted refusal of one of the parties" of sexual cooperation'
for the procreation of children is equivalent to psychological
incapacity. In this case, there was no sexual contact between
the parties since their marriage on May 22, 1988 up to March
15, 1989 or for almost a year.
The High Court also ruled in this case that either spouse'
may file the action to declare the marriage void, even the
psychologically incapacitated. _

Later, _in the very recent case of Republic v. Molina, GR


No. 108763, Feb. 13, 1997, the Supreme Court en bane with
Ail. 36 49

Justice Artemio Panganiban as ponente, laid down specific


gUIdelines in the inferpretation and application of Art. 36 of
-~h~Family-Cod~ to wit:
(a) The burden of proof to show the nullity of the
marriage belongs to the plaintiff, and a~y doubt must be
r~d in favor of the existence of the marriage and against
its nullity.
(b) The root cause of the psychological incapacity must be
(1) medically or clinically identified; (2) alleged in the:
complaint; (3) sufficiently proven by experts; and (4"'-dearlx
explained in the decision.'
(c) TheIricapacity must be prov~ to be existing at "the
time of the celebration of the J;li.1ffi,iage", although the
manifestation need not be perceivable at such time;
(d) The ~acity must also be shown to be medically or
~lWically permaJ~nt or incurable, although-the, incu ra bility
'$ay be relative only in regard to the other spouse, not
necessarily absolutely against everyone of the same sex.
Furthermore, the incapacity must be re le va nt to the
assumption of marriage -obligations, not to those not related to
marriage like the exercise of a profession or emplo¥ment in a
job,
(e) Such illn~ must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage.
(f) The essential marital obligations must be those
embraced by Arts. 68-71 of the Family Code as regards
husband and wife, and Arts. :220-225,same Code, in regard to
parents and their children. Such non-compliance must also be
stated in the petition, prov~n by evidence, and included in the
text of the decision.
(g) Interpretations given by the National Appellate
Matrtmonial Tribunal of the Catholic Church in the
Philippines, while not controlling, should be given great
respect by our courts.
(h) The trial court must order the fiscal and the Solicitor-
General to appear as counsel for the State. No decision shall
50 Art. 37

be handed down unless the Solicitor General issues a


certification, which will be quoted in the decision, briefly
stating his reasons for his agreement or opposition to the
petition. The Solicitor General and the fiscal shall submit such
- certification to the court within fifteen (15) days from the date
the case is submitted for resolution.
Thus, finding that there was no psychological incapacity
on the part of the respondent-husband but more a "difficulty"
if not outright "refusal" or "neglect" in the performance of
some marital duties, and that the evidence merely showed
that the parties could not get along with each other, the
Supreme Court denied the petition for declaration of nullity Of
marriage filed by petitioner-wife.
I-many, [n Marcos v. Marc ,GR 136490, Oct. 19, 2000, the
Supreme Court held that psychological incapacity may be established
by the totality of the evidence presented. Respondent need not be
examined by a physician or psychologist as a condition sine qua non
for such declaration.
Art. 37. Marriages between the following are incestuous
and vo id.from the beginning, whether the relationship
between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree:
and
(2) Between brothers and sisters, whether of the full-or
half-blood. (81a)
\a) 1rus Arncie amends Art. tn of the Civil Code by
considering as incestuous and void only
marriages between (1) ascendants and
descendants of any degree, and (2) brothers and
sisters, whether of the full or half blood, in both
cases whether the relationship of the parties is
legitimate or illegitimate, since what is important
is that the parties are close relatives by blood.
(b) Under Art. 81 of the Civil Code, incestuous
marriages include those between collateral
relatives by blood within the fourth civil degree.
The above Article does not consider such
marriages incestuous (following the trend in
other countries wherein incestuous marriages
extend only to those between brothers and
Att.38 51

sisters), but they are still considered void by


reason of public-policy under Art.' 38.
(c) Incestuous marriages are universally or almost
universally considered immoral (contra bonos
mores) and void as they contravene human
nature, degrade the family, and offend decency
and morals.
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

I
degree;
(2) Between step-parents and stepchildren;
(3) Between parents-in-law and children-in-laws
(4) Between the adopting parent and the adopted child; I
(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; •I
(7) Between an adopted child and a legitimate child of
the adopter; •
II
(8) Between adopted children of the same adopter; and
(9) Between parties where one with the intention to I
marry the other, killed that other person's spouse or
his or her own spouse. (82a)

This Article A:rt;LendsArts. 80 (6), 80 rot and 81 of the Civil


Qld~
Under Arts. 80 (6) and (7) and 81 of the Civil Code,
marriages that are considered void by reason of public policy
are the following:
(1) Those where one or both contracting parties have
been found guilty of the killing of the spouse of
either of them (Art. 80 (6»; 4.

(2) Those between stepbrothers and stepsisters (Art. 80


(7»;
I

S2 Al1.38

(3) Those between stepfathers and stepdaughters, and


stepmothers and stepsons (Art. 82 (1»;
(4) Those between the adopting father or mother and the
adopted, between the latter and the surviving spouse
of the former, and between the former and the
surviving spouse of the latter. (Art. 82 (2»; and
(5) Those between the legitimate children of the adopter
and the adopted (Art. 82 (3».

The above Article of the Family Code amends Arts. 80,


~ars. (6) and (7), and 82 of the Civil Code:
(l) by eliminating altogether the prohibition for
stepbrothers and stepsisters to marry (Art. 80 (7) of
the Civil Code), since they are not related either by
blood or by affinity;
(2) by transferring marriages under Art. 80 (6) of the
Civil Code (those where one or both contracting
parties have been found guilty of the killing of the
spouse of either of them) to par. (9) of the above
Article 38; and
(3) by adding to the list of void marriages by reasons of
public policy the following:
(a) marriages between collateral blood relatives,
whether legitimate or illegitima te, up to the
fourth civil degree (Art. 38 (1»;
(b) marriages between parents-in-law and children-
in-law (Art. 38 (3»; and
(c) marriages between adopted children of the same
adopter (Art. 38 (8».
Reasons Wh,x Marriages unde_! Art. 38 are As.ains! Public
Policy:
(l) Marriages between collateral blood relatives up to the
4th civil degree;
Although these marriages are no longer
considered incestuous under Art. 37 for the reason
already stated before, they are still considered void
Art.38 53

by the Family Code as against public policy because


of the known deleterious effects of such marriages on
the offsprings. As established by scientific researches
and by experience, marriages between first cousins or
other close blood relatives usually result in
degenerate children or children born with organic
defects like weak or retarded minds, deafness or
deaf-mutism, nearsightedness, etc., which births, if
occurring to a great extent, would weaken the race
(35 Am. Jur. pp. 256-266).
(2) Marriages between parents-in-law and children-in-
law:
While these marriages are not prohibited by the
Civil Code, the Committee believes that they should
not be allowed by reasons of public policy because:
(a) It is offensive to one's sensibilities that a father-
in-law would marry a daughter-in-law and a
mother-in-law would marry a son-in-law.
(b) It is scandalous for parents-in-law to marry their
children-in-law because the custom among
Filipinos is to treat children-in-law just like one's
own children and the latter treat their parents-in-
law just like their own parents.
(c) When there is a grandchild, there is a confusion
in the relationship between the child of the
father-in-law and that of the former's son, as the
children have the same mother. (That is why in
American law, the prohibition arises only when
there are grandchildren.)
(d) It is a family tradition in the Philippines that
parents live with their children, unlike in the
U.S. where parents usually do not live with their
children.
(3) Marriages between adopting parent arid adopted
child, between the latter and the surviving spouse of
the former, and between the former and the
surviving spouse of the latter:
A.tt J8

These marriages are against public policy


because adoption creates therelationship of parent
and child by legal fiction, so that the reasons
prohibiting a parent from marrying a child, and a
parent-in-law from marrying a child-in-law, will
apply.
(4) Marriages between the legitimate child of the adopter
and an adopted child:
The reason is again because adoption results in
the legitimate child of the adopted and the adopted
child becoming brother and sister by legal fiction.
Besides, these children usually grow up together
under the same roof and in the same family, so that
it is immoral and scandalous that they should be
allowed to marry each other after reaching the
marriageable age.
(5) Marriages between adopted children of the same
adopter:
The reasons are the same as No. (4) above.
(6) Marriages between parties where one, with the
intention to marry the other, killed the other person's
spouse or his or her own spouse:
(a) Art. 38 (9) of the Family Code improves on Art.
80(6) of the Civil Code by stating expressly that
the act of one party of killing his or own spouse
or the other party's spouse was "with the
. intention to marry the other," which requirement
does not appear in Art. 80 (6) of the Civil Code.
In other words, a simple homicide, not connected
with the marriage, would not bar such marriage.
In fact, if the surviving spouse of the victim of
the homicide agrees to marry the killer, the
former is deemed to have forgiven the latter,
who on his pi:.' . can make reparation for his
crime to the widow and children of his victim.
(b) Under Art. 38 (9) of the Family Code, there is no
need for conviction in a criminal case of the
Art 39 ss
guilty party. The fact of the killing committed by
. one of the parties to the marriage can be proved
in a civil case. Under Art. 80 (6) of the Civil
Code, however, conviction in a criminal case is
necessary.
Relationships. outside Arts. 37 and 38 Are Not Impediments
to Marriap;

Other relationships not included in Arts. 37 and 38 are


not impediments to marriage, like:
(1) Brother-in-law and sister-in-law;
(2) Stepbrother and stepsister;
(3) Guardian and ward;
(4) Adopted and illegitimate child of the adopter;
(5) Adopted son of the husband, and adopted daughter
of the wife;
(6) Parties who have been convicted of adultery or
concubinage.
Art. 39. The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. However,
in the case of marriage celebrated before the effectivity of
this Code and falling under Article 36, such action or
defense shall prescribe in ten years after this Code shall
have taken effect (n) (as amended by E.O. 227, dated July
17,.-...1987).
(1) The action or defense for the declaration of the
absolute nullity of marriage does .not prescribe
because mere lapse of time cannot give effect to a
marriage or any other contract that is null and void
(Art. 1410, Civil Code, Angeles v. CA., 102 PhiL
1006).
. (2) However, under the above Article, in the case of a
marriage celebra ted before the effectivity of this
Code and falling under Art. 36 thereof (recognizing
psychological incapacity of one of the parties as a
ground declaration of the nullity of marriage), the
action or defense to declare the marriage, null and
void prescribes in 10 years from the time this Code
takes effect on August 3, 1988 (E.O. 227 amending
56 Art. 40
Art. sser the Family Code). The reason for this
provision is that if the parties to the aforesaid
marriage still do not ask for the declaration of its
nullity within 10 years after the Family Code shall
have taken effect, that shows that they want to stay
married and do not want their marriage to be
declared null and void.
(3) This Article was further amended recently by Rep.
Act No. 8533 by eliminating the second sentence
thereof, the obvious intention being to make actions
J8 nullify marriages celebrated before the Family
Code under Art. 36 also imprescriptible.
Art 40. TIie- absolute nullity of a previous marriage may
be invoked for purposes of remaniage on the basis solely of
a final judgment declaring such previous marriage void. (n)

(1) This is also a new provision in the Family Code. The


Committee believes that parties to a marriage should
not be allowed to assume that their marriage is void,
even if such is the fact, but must first secure a
judicial declaration of the nullity of their marriage
before they should be allowed to marry again.
(2) This Article is also in line with the recent decisions of
the Supreme Court that the marriage of a person
may be null and void but there is need of a judicial
declaration of such fact before that person can marry
again; otherwise, the second marriage will also be
void <Wiegel v. Sempio-Di~, Aug. 19/86, 143 SCRA
499; Vda. de Consuegra v. eSIS, 37 SeRA 315). This
provision changes the old rule that where a marriage
is illegal and void from its performance, no judicial
decree is necessary to establish its validity eople v
Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil.
1033).
(3) This Article is also for the protection of the spouse
who, believing that his or her marriage is null and
void, marries again. With the judicial declaration of
Art. 41 57

the nullity of his or her first marriage, the person


who marries again cannot be charged with bigamy.
(4) Applies to re-marriage under the Family Code; i.e., it
is retroactive (Atienza. v. J. Brillantes, 243 SCRA 32).
(5) A marriage void for lack of a marriage license still
needs a judicial declaration of such fact under the
Family Code even for Pu!poses other than remarriage
(Rep. v. CA. and Castro, 236 SCRA '257; Domingo v.
CA.. 226 SCRA 572).
(6) Where a party marries again on the mere belief
that his/her spouse is' already dead without filing
the summary proceeding required in this Article,
the second marriage is bigamous and void
(Nav8rrQ v. Domogtoy, 259 SeRA (29).

Art. 41. A marriage contracted by any person during the


subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence
of only two years shall be sufficient,
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
(83a)
Kinds of Biaamous Marriales under this Article;

There are two kinds of bigamous marriages under this


Article, namely:
0) The void bigamous marriage, which is contracted by
a person during the subsistence of his or her
previous marriage. Here, the good faith of the party
who marries again is immaterial; the second marriage
would still be void. On the other hand, the person
who marries again in bad faith is even criminally
liable for bigamy; and
, 58
Alt. 41

(2) The voidable bigamous marriage, which is contracted


by a person whose spouse has been absent for four
consecutive years (in ordinary absence) or two years
(in extraordinary absence under Art. 391 of the Civil
Code), said person having a well-founded belief that
his or her absent spouse was already dead, and after
having the latter judicially declared presumptively
dead in a summary proceeding as provided by the
Code.

Above Article Compared with Art. 83 of the Civil Code:

(1) Under Art. 83 of the Civil Code, the subsequent


marriage is voidable:
(a) when the absent spouse has not been heard of
for seven consecutive years; .
(b) when, although absent for less than seven years,
the absentee is generally considered as dead and
believed to be so by the present spouse, and
(c) when the absent spouse is presumed to be dead
after four years from the occurrence of any of the
events enumerated in Art. 391 of the Civil Code.
Under the above Article of the Family Code, however,
the period of 7 years (which is ordinary absence under Art.
390 of the Civil Code) is reduced to 4 years, and the period of
4 years under Art. 391 of the Civil Code <extraordinary
absence) is reduced to 2 years, the reason being that it is now
much easier to receive news about what is happening in other
parts of the country or even abroad because of modem means
of communication and transportation.
Ol£i (2) Under the Civil Code, there is no need for the missing
D vilI- spouse to the judicially declared an absentee before the present
It .t\fI spouse can marry again. It is enough that the required period
of absence has passed. This was the ruling of the Supreme
Court in lones v. Hortigu la, 64 Phil. 179, wherein it was held
that for the purpose of a second valid marriage of the present
spouse, all that was necessary was that the absent spouse be
unheard of for seven consecutive years at the time of the
Art.41 59

second marriage, and that the only purpose of declaration of


absence was the proper administration of the estate of the
absentee. This ruling was reiterated in In Re Sztraw, 81 Phil.
461 and uk1:ian v. Rep., 52 C.C. 1441, wherein the Supreme
Court held that unless the case involved the distribution of
property, a declaration of presumptive death would not be
made by the court because such presumption is already made
in the law, the judgment will remain a presumption and will
never be final, and such declaration might lead the present
spouse to believe that she could get married again. Such
rulings, however, conflict with Art. 349 of the Rev. Penal Code
providing that the present spouse must first ask for a
declaration of presumptive death of the absent spouse in order
not to be guilty of bigamy in case he or she marries again.
The above Article of the Family Code now clearly
provides that for the purpose of the present spouse 'yEIAI
contracting a second marriage, he or she must file a summary '-4
proceeding as provided in the Code for the declaration of the LV
presumptive death of the absentee, without prejudice to the
latter's reappearance. This provision is intended to protect the
present spouse from a criminal prosecution for bigamy under
Art. 349 of the Rev. Penal Code because with the judicial
declaration that the missing spouse is presumptively dead, the
good faith of the present spouse in contracting a second
marriage is already established.

Mung of "Absmt Spouse" under this Article. A.~{ C.C.


By "absent spouse" means that the other spouse has been
missing for at least four years, it being unknown whether or
not he or she is still alive, and the present spouse having a
wen-founded belief that the missing spouse is already dead.
The period of four (4) years is, however, reduced to two
(2) years if in the disappearance of the missing spouse, there
was danger of death as provided in Art. 391 of the Civil Code,
namely:
(1) The missing person was on board a vessel lost
during a voyage, or an aeroplane which is missing;
Art' 42

(2) The missing person was in the armed forces and had
taken part in war; or
(3) The miss,ing person was in danger of death under
other circumstances.

In the above cases, the two-year period of absence is


computed from the occurrence of the event from which death
is presumed.

"Vessel" in the first case includes all kinds or watercraft,


and "aeroplane", all/kinds of aircraft. Taking part in "war" in
the second case includes all military operations or undertaking
involving armed fighting, and does not only apply to soldiers
but also to those employed in the armed forces like nurses
and doctors, reporters, and cameramen, etc. "In danger of
death" in the third case includes such events as earthquakes,
fires, explosions, dangerous expeditions, landslides, volcanic
eruptions, etc.

Art. 42. The sub seq uent marriage referred to in the


preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent
spouse, unless there is a judgment annulling the previous
marriage or declaring it void sb initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
instance of any interested person with due notice to the
spouses of the subsequent marriage and without prejudice to
the fact of reappearance being judicially determined !n case
such fact is disputed. (n)

;.Bule under tbe Civil C'od.e:

Under Art. 83 of the Civil Code, the second marriage


contracted by a person with an absent spouse remains valid
until annulled by a competent court upon the reappearance of
the missing spouse, which action for annulment may be filed,
according to Art. 87, by the returning spouse during his or
Art.42 il

her lifetime, or by either spouse of the. subsequent marriage of


the present spouse, during the lifetime of the other. This,
however, gives rise to the anomalous situation, if nobody files
said action for annulment, of the present spouse having two
husbands or two wives (the returning spouse and the second
spouse), both entitled to exercise conjugal rights. The Civil
Code offers no solution to this situation. Qld
To solve the above problem, many authorities believe
that the first marriage and all its effects with respect to the (Ac.v
personal and property relations of the parties should be
considered suspended by the celebration of the second
marriage and as long as the latter subsists (see 1 Tolentino,
Civil Code of the Phil., 1983 ed., p. 275-276; 1 Paras, Civil
Code of the Phil., 1984 ed., pp. 321-322). The effects on the
first marriage would be similar to legal separation in which
the marriage subsists but the rights and obligations of the
parties to each other, as well as the conjugal partnership, are .
extinguished, to be revived only in case of the return of the
missing spouse and annulment of the second marriage of the
present spouse.
Meanwhile, Prnb/&YJ;t .):: QU/.. L(/\. w /'
(1) The absent spouse who returns cannot get married
again because he or she is still married to the present
spouse.
(2) The present spouse cannot have sexual relations with
both the returning spouse and his or her second
spouse. .-,
(3) Properties acquired by the absent spouse during his
or her absence or after his or her return do not
become part of his or her conjugal partnership with
the present spouse. .
(4) If a child is born of the returning spouse and the
present spouse, the child Is illegitimate.

Rule under the Faroil! Coca;, /Y E(JJ Lltl» oV TJo V~ - j/


The above Article of the Family Code solves all the above
problems unsolved by Art. 83 of the Civil Code by providing
as follows:
62 Ad. 12

(1) The subsequent marriage referred to in Art. 41 shall


be automatically terminated by the recording of an
affidavit of the reappearance of the absent spouse i.i¥c
the office of the local civil registrar of the residence of
the parties to the second marriage.
(2) The affidavit of reappearance may be recorded by the
returning spouse or by any interested person.
(3) Due notice of the recording of the affidavit of
reappearance must be sent to the spouses of the
subsequent marriage.
(4) The fact of reappearance may, however, be referred
to the courts in a proper action if such fact is '
disputed.
(5) The automatic termination of the second marriage
will not apply if the previous marriage of the present
spouse and the returning spouse has been annulled
or declared void by the courts.
SOIl}._ehave criticized the above solution offered bythe
Family Code in that it may be unduly harsh and oppressive to
the spouses of the second marriage who may really love each
other and would like to stay married, just as it might
constitute an undue imposition on the present spouse to live
with the returning first spouse even if he or she does not
want to do so. The Committee is of the opinion, however, that
the automatic termination of the second marriage upon the
return of the absent spouse is the better solution because if the
solution is left to the present spouse, he or she may decide' to
keep both marriages. On. the other hand, the absent spouse
who returns cannot marry again if his or her spouse decides
to stick to the second marriage. Or the returning spouse can
even blackmail the spouses to the second marriage by
threatening to annul their marriage if they do not payoff. The
'second marriage, on the other hand, will remain insecure and
hanging, because it may be annulled by either of the parties
during each other's lifetime. Finally, the automatic termination
of the second marriage upon the reappearance of the absent or
missing spouse is a risk that the parties to said marriage
Art. 43

knew they were taking when they entered into such marriage,
SO that if it does happen, they have no reason to complain.

Art. 43. The termination of the subsequent marriage


referred to in the preceding Article shall produce the
following effects:
(1) The children of the subsequent marriage conceived
prior to its tertnination shall be considered legitimate, and
their custody and support in case of dispute shall be decided
by the court in a proper proceeding;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said marriage in
bad faith, his or her share of the net profits of the
community property or conjugal partnership property shall
be forfeited in favor of the__f_ommonchildren or, if there are
none, the children of the guilty spouse by a previous
marriage or, in default of children, the innocent spouse;
(3) Oonations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in bad faith,
such donations made to said donee are revoked by operation
of law;
(4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as a beneficiary in
any insurance policy, even if such designation be stipulated
as irrevocable; and
(5) The spouse who contracted the subsequent marriage
in bad faith shall be disqualified to inherit from the
innocent spouse by testate and intestate succession. (n)

Unlike the Civil Code which does not provide for the
.effects of the termination of the subsequent marriage under its
Art. 83, the Family Code expressly provides for the effects of
the automatic termination of the subsequent marriage under
Art. 41 as follows:
(1) The children of the subsequent marriage conceived
before its termination shall be considered legitimate,
An. 41

and their custody and support shall be decided by


the courts in the proper proceeding in case of dispute
in accordance with the Code's provisions on custody
of children and support.
(2) The absolute community of property or conjugal
partnership of the second marriage shall be dissolved
and liquidated, but if one of the parties to the
marriage was in bad faith, his Or her share in the net
profits shall be forfeited in favor of the common
children or, if none, the children of the guilty spouse
by a previous marriage, or in defa ult of such
children, the innocent spouse.
(3) Donations by reason of marriage shall remain valid,
but such donations in favor of the guilty spouse are
revoked by operation of law.
(4) The innocent spouse may revoke the designation of
the guilty spouse as beneficiary in any insurance
policy, even if such designation be stipulated as
irrevocable, and
(5) The spouse in bad faith shall be disqualified to
inherit from the innocent spouse by testate or
intestate succession. .

Art. 44. If both spouses of the subsequent marriage


acted in bad faith, said marriage shall be void ab initio and
all donations by reason of marriage and testamentary
disposition made by one in favor of the other are revoked
by operation of law. (n).

(1) By the spouses having acted "in bad faith" under this
Article means that both spouses to the subsequent
marriage knew that the absent spouse was still alive
when they entered into said marriage.
(2) The spouses to the subsequent marriage being in bad
faith, their marriage is, as provided in the above
article, void ab initio, and they may even be
prosecuted for bigamy.
Alt. 45

(3) Again, the subsequent marriage being void ab initio,


its effects on the personal and property relations of
the spouses as well as their children will be those of
marriages that are null and void and not those of
voidable marriages.
(4) Donations by reason of marriage and testamentary
dispositions made by one in favor of the other are,
under the above Article, revoked by operation of law.

Art. 45. A marriage may be annulled for any of the


following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have
the marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without
the consent of the parents, guardian or person having
substitute parental authority over the party, in that order,
unless after attaining the age of twenty-one, such party
freely cohabited with the other and both lived together as
husband and wife:
(2) That either party was of unsound mind, unless such
party, after coming to reason, freely cohabited with the' other
as husband and wife:
(3) That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge of
the facts constituting the fraud, freely cohabited with the
other as husband and wife;
(4) That the consent of either party was obtained by
force, intimidation or undue influence, unless the same
having disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexually-
transmissible disease found to be serious and appears to be
incurable. (85a)
66 Art IS

Art. 8S of the CivD Code and Aboye Afflcle Com Rued:

Under Art. 85 of the Civil Code, there are six grounds for
annulment of marriage, namely:
(1) Lack of parental consent in cases where the parties
needed the same;
(2) TIle existing prior marriage of a person who, because
of the absence of his or her spouse, marries again;
en Insanity ofone of the parties;
(4) Fraud vitiating the consent Qf one of the parties;
(5) Violence or intimidation that vitiated the consent of
. one ot::the parties; and »>:

(6) Imp,q:tkncy (Physical incapability to copulate) of .one


- . '_;'Df;~.w.'p'arties-. -
, Un:1er;J~e.a~e Article of the Family Code, however,
the foUoWu<g changes have been made to Art. 85 of the Civil
Code!- ,
(1) . The ground of prior existing marriage (par. 2 of Art .
. -- 85 of the Civil Code) has been elimina ted because
under Art. 012of the Family Code, there is no need
to annul the second marriage of the present spouse
upon the reappearance of the absent spouse, since
said second marriage is automatically terminated by
the recording of the absent spouse's reappearance in
the office of the local civil registrar. .
(2) "Undue influence" has been added to par. 5 of Art.
85 of the Civil Code as a ground for annulment of
marriage.
(3) Par. 6 of Art. 85 of the Civil Code has been amended
by the Family Code by making both absolute and
relative impotency (physical incapability of
consummating-the marriage with the other spouse)
grounds for annulment of marriage. And
(4}-Another ground f'or annulment of marriage has been
adde.d; if either pa'\ty is afflicted with a sexually-
transmissible disease found to be serious and appears
. to be incurable.
Arl. 15 67

Grounds for Annulment oLMarrill' Explained;

:t. Lack of parental consent

(a) This applies to parties who, being 18 years and


above but below 21 years of age, get married without
parental consent. .
(b) The marriage may, however, be ratified if the parties
freely cohabit with each other upon reaching 21 years
of age. Mere transient sexual intercourse is not
sufficient. .
(c) The parents who did not give consent cannot ratify
the marriage by giving consent after the marriage.
Tolentino believes, however, that the parents may
ratify the marriage before the child reaches the
proper age, since parental consent is all that the law
.requires, so that it is immaterial whether that consent
is given in advance or after the marriage by
ratification. Besides, the parents can ask for the
annulment of the marriage before the child reaches
the age when he or she can already get married
without parental consent, and this right of the
parents can be waived. (1 Tolentino, id., 280).
(d) See also comments under Art. 14, supra.

2. Insanity of one of the parties;

(a) For distu(ction between insanity and psychological


incapacity under Art. 36 which is a ground for the
declaration of nullity of marriage, see comments
under Art. 36, supra.
(b) The marriage can be ratified by the sane party's
cohabitation with the other after the latter's insanity
has been cured (i.e., the latter has returned to
reason), because insanity is sometimes curable.
(c) Mere mental weakness that does not deprive a party
of the capacity to understand and appreciate the
consequences of the step he or she is taking, does
Arl. IS

not affect the validity of the marriage, unless it


amounts to psychological incapacity to perform the
essential' marital obligations under Art. 36, in which
case the marriage may even be declared null and
void.
(d) Intoxication which results in lack of mental capacity
to give consent is equivalent to ins:anity; so is
somnambulism.
(e) The insanity of one party must exist at the time of
the marriage, not prior or subsequent thereto.
(f) Since the presumption of the law is generally in
favor of sanity, the burden of proof is on the party
who alleges the insanity of the other.
Fraud:

(a) Not all kinds of fraud will justify the annulment of


marriage, but only those enumerated in Art. 46 of the
Code.
(b) See comments under Art. 46.
(c) The marriage maybe ratified by free cohabitation
between the parties after full knowledge of the fraud.

~. Force, intimidation, or undue influence:

(a) The definitions of "violence", "intimidation", and


"undue influence" are found in Arts. 1335 to 1337 of
the Civil Code.
"Art. 1335. There is violence when in order to wrest
consent, seriavs or irresistible force is employed.
There is intimidation when one of the contracting
parties is compelled by a reasonable and well-grounded
fear of animminent and grave evil upon his person or
property, or upon ~he person or property of his spouse,
descendants or ascendants, to give his consent.
To determine the degree of the intimidation, the age,
sex, and condition of the person shall be borne in mind.
A threat to enforce one's claim through competent
A.rt.45 69

authority, if the claim is just or legal, does not vitiate


consent."
"Art. 1336. Violence or intimidation shall annul the
obligation, although it may have been employed by a
third person who did not take part in the contract."
"Art. 1337. There is undue influence when a person
takes improper advantage of his power over the will of
another, depriving the latter of a reasonable freedom of
choice. The following circumstances shall be considered:
the confidential, family, spiritual and other relations
between the parties, or the fact that the person alleged to
have been unduly influenced was suffering from mental
weakness, or was ignorant or in financial distress."
(b) The threat to enforce a legal claim, like a threat to file
a case for immorality against a bar candidate if he
does not marry a girl with whom he had carnal
knowledge, does not vitiate consent to a marriage
(Ruiz v. Atienza, CA, 40 O.C. 1903).
(c) The threat or intimidation must be of such a nature
as to prevent the victim from acting as a free agent.
Thus, where a man was threatened with armed
demonstrations by the brothers of the woman in
order to marry the latter, the marriage was held
annullable (Tiongco v, Matig-a, 44 O.C. No.1, p. 96).
(d) Where a man rapes a girl and then forces her to
marry him in order that he may not be prosecuted for
rape, but he had no intention to live with the girl,
the marriage is annullable (People v. Santiago, 51
Phil. 68).
(e) The Committee added undue influence as a ground for
annulment of marriage because while the fear that
induces a person to enter into a marriage may not
strictly be founded on any threatened physical,
material, or moral harm, he may be compelled to
enter into a marriage out of reverential fear; i.e., fear of
causing distress, disappointment or anger on the part
of one whom a person has been conditioned to
70-
Art:. IS

revere, respect, Or obey out of a special debt of


- gratitude, like his parents, grandparents, godparents,
employer, etc.

5. Impotency:

(a) This refers to lack of power to copulate, not to mere


sterility.
(b) The impotency of one party must be present at the
time of the marriage, must be continuous, and must
appear incurable. Thus, where the impotency can be
removed by surgical operation, the marriage is not
annullable (Sara v. Cuevarra, c.A., 40 O.G. (lst Sup.)
263).
(c) Only the potent spouse can file the action for
annulment and he or she must not have been aware
of the other's impotency at the time of the marriage.
(d) If both spouses are impotent, the marriage cannot be
annulled because neither spouse is aggrieved by the
other.
(e) Impotency due to old age is not a ground for
annulment; since one who marries an old person
. takes a calculated risk that the latter may be
impotent.
<0 Potency is presumed, and the party who alleges that
the other is impotent has the burden of proving his
allegation (Jimenez v. C~izarez, L-12790, Aug. 31,
1960.).
(g) Although the general rule is in favor of potency,
there is a doctrine applied in England and by some
U.S. courts called the doctrine of "triennial
cohabitation" to the effect that if the wife still remains
a virgin after livinz together with the husband for 3
years, the latter is presumed impotent, and he will
have to present evidence to overcome this
presumption (Tompkins v. Tompkins, 92 N.J. ego 113,
111 Atl. 599).
~fl n
(h) Can the court assume that the wife is impotent and
annul the marriage upon complaint of her husband if
she refuses to submit to a physical examination to
determine her potency? No. The refusal of the wife to
be examined does not create a presumption of her
impotency because Filipino girls are inherently shy
and bashful. The trial court must order the physical
examination of the girl, because without proof of
impotency, she is presumed to be potent. To order
her to submit to a physical examination does not
infringe on her constitutional right against self-
incrimination (Jimenez v. Canizares, L-12790, Aug. 31;
1960).
NOTE: If the girl refuses to be examined after having been
ordered by the court to do so, she can be held guilty of contempt and
ordered confined in jail until she complies with the order of the
court.

(i) Relative Impotency: This may now be invoked as a


ground for annulment under the Family Code; i.e.,
the physical incapability of one party to consummate
the marriage with the other.

The Committee has decided to include relative impotency


of one party as a ground for annulment of marriage because
there are cases Where a person is impotent with respect to his
spouse but not with other men or women. For example, a
man may not be able to harness penile erection with his wife
but can do so with other women; or a man's genitals are too
big that he cannot have intercourse with the genitals of his
wife but can do so with a woman who, having also abnormal
genitals, matches his functionally for coitus.

(6) Affliction of sexually-transmissible disease found to be


serious and which appears Incurable,

See Comments on pp. 74-75.


72 Art. 46

How Mill Voidable M,rriaaes be Ratified or Cgnyalidated?

,.~ v?idable marriage may be ratified or convalidat.ed by


cohabitation and by prescription. '
C~rtain marriages, however, cannot be ratified or
'conralidated by free cohabitation; namely:
(1) Those vitiated by a prior subsisting marriage, since
the cause of the nullity. of this marriage exists as long'
as the absent spouse is alive. Besides, to allow its
ratification would result in the anomalous situation of
.one person having two living sppuses;
(2) Those vitiated by the impotency of One spouse, since
the cause of nullity does not cease to exist as long as
such impotency of the spouse remains; and
(3) Those vitiated by the affliction of one spouse of a
sexually-transmissible disease found to be serious
and appears to be incurable, since like impotency, the
cause of the nullity of the marriage remains as long
as the sick spouse remains so afflicted.
The action to annul a marriage on grounds (2) and (3)
above, however, prescribes within five years after the marriage
(Art. 47 (5». ~

Art. 46. Any of the following circumstances shall constitute


fraud referred to in number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude.
(2) Concealment by the wife of the fact that at Ul": time
of the marriage, she was pregnant by a man other
than her husband;
(3) Concealment of a sexually-transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
(4) Concealment of drug addiction, habitual alcoholism,
homosexually or lesbianism existing at the time of
the marriage.
Ad. 46 73

No other misrepresentation or deceit as to character,


health, rank, fortune or chastity shall constitute such fraud as
will give grounds for action for the annulment of marriage.
(86a)

Provisions of Art. 86 of the Civil _Co~e and Above Article


Compared:

Under Art. 86 of the Civil Code, the frauds that constitute


grounds for annulment of marriage are only the following:
(1) Misrepresentation as to the identity of one of the
contracting parties;
(2) Non-disclosure of the previous conviction of the other
party of a crime involving moral turpitude, and the
penalty imposed was imprisonment for two years or
more; and
(3) Concealment by the wife of the fact that at the time
,of the marriage. she was pregnant by a man other
than her husband.

The above Article of the Family Code amends Art. 86 _of the
Civil Code as follows:

(1) Mistake of one of the contracting parties as to the


identity of the other has been included as a ground
to declare the marriage void under Art. 35, the
reason being that if one party is mistaken as to the
identity of the other, whether through the other's
fraud or for any other reason, the former did not
really give consent to the marriage, and the marriage
is void for lack of valid consent on the part of the
party mistaken. If the other party is guilty of fraud,
however, he is Criminally and civilly liable.
(2) The above Article of the Family Code has eliminated
the requirement that the penalty imposed should be
"imprisonment for two years or more" in the fraud of
one party consisting of his non-disclosure of a
previous conviction of ~ crime involving moral
N ~"
turpitude. Under the above Article, all such non-
disclosures of a previous conviction of a crime
involving moral turpitude constitute fraud that can
. justify the annulment of a marriage, irrespective of
the penalty imposed, since the important thing is that
the party guilty of such non-disclosure is lacking in
. good moral character, and the other party did not
know about it.
(3) The above Article adds two other concealments (in
addition to concealment by the wife of the fact that at
the time of the marriage, she was pregnant by a man
other than her husband) as also constituting fraud :
that can be a ground for annulment of marriage,
namely:
(a) Concealment of a sexually-transmissible disease
regardless of its nature, existing at the time of
the marriage: and
(b) Concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism existing
at the time of the marriage.
(4) To the other misrepresentations that do not constitute
fraud that give ground for annulmentvof marriage in
Art. 86 of the Civil Code, namely, misrepresentations
as to character rank, fortune, or chastity, the above
Article of the Family Code adds misrepresentation as
to "health". In other words, concealment by one party
that he is seriously ill because of cancer, heart
trouble, high blood pressure, diabetes, etc. does not
constitute a ground for annulment of marriage.

~oncealment of a SexuaU:r:Transmissib1e Disease as fraud


lJnder Art. 46 Distinpished fWD Afflictipn with a SexuallJ:
Transmissible Disuse as a. Ground for Annulment o.f
Marrige under Art. 4S (611.

In Art. 45 (6), the fact that one party is afflicted with a


sexually-transmissible disease found to be serious and appears
Art. 4i

to be incurable is a ground for annulment of marriage,


whether such fact was concealed or not from the other party,
as long as the disease was present at the time of the marriage.
TIle sick party might not even have known of his own illness
at the time of the marriage, but once the illness is discovered,
the other party is entitled to annul the marriage, on the theory
that if she or he had known about it, she or he would not
have consented to the marriage. The healthy party, because of
love and compassion for the sick party, might not after all
annul their marriage, but he or she should be given the right
to annul the same, considering the seriousness of the other's
illness, which may not only be transmitted to the healthy
spouse but may even have serious effects on their offspring.
(Examples: AIDS, herpes)
In Art. 46 (3 l), however, the concealment of a sexually-
transmissible disease by the sick party from the other party
which constitutes fraud that would justify the annulment of their
marriage refers to any kind of sexually-transmissible disease,
regardless of its nature, i.e., whether serious or not, or incurable
or not. For example, one party is sick with syphilis or gonorrhea,
both of which are curable, at the time of the marriage but did not
inform the other party about it, and the latter discovers such fact
only on the night after the wedding. The healthy party can annul
the maniage on the ground of fraud.

Concealment of Conviction of a Crime InvolvlDl Moral TUI::


pitude as Constitutina Fraud that may be I GrQund lor An-
nulment of MarriClle:

As already stated, while Art. 86 of the Civil Code


provides that the penalty for the previous conviction of one
party of a crime involving moral turpitude that he or she did
not disclose to the other party should be "imprisonment for
two years or more", the arove Article of the Family Code does
not mention any penalty, so that as long as the crime of
which one party was convicted involved moral turpitude and
such fact was concealed from the other party, the latter can
ask for annulment of their marriage on the ground of fraud.
76 Tille 1- MARRIAGE

Commenting on Art. 86 (2) of the Civil Code limiting the


penalty of the crime involving moral turpitude committed by one
party to the marriage to at least two years of imprisonment,
Tolentino has the following apt remarks to make:
"The wisdom of this provision is very doubtful. This is
really a deceit as to character, and has no essential bearing
upon the marital relations of the parties. The concealment of a
woman of a previous life of prostitution would be a more
serious fraud than mere conviction fortheft or estafa with a
penalty of two years or more; and yet; while the former fraud
as to character would not be a ground for annulment, the
latter is made so by this article. Besides, there are serious
offenses involving moral turpitude under special statutes, for
which either fine or imprisonment may be imposed in the
, discretion of the court; if the court imposes a penalty of fine
. of, say, PtO,OOO,instead of a possible imprisonment of ten
years, the concealment of this conviction would not constitute
fraud under this article." (1 Tolentino, id., 289-290).
Art. 46 (1) of the Family Code would cure the defect in
An. 86(2) of the Civil Code pointed out by Tolentino,
Concealment of Fact that Wife Was Prelnant by ARothel
Man a~ Constituting Fraud thaLwould be~a Ground for
Annulment of Marriall:
(1) This is a very serious fraud tha t goes to the very
essence of marriage, for one of the most important
objects of marriage is procreation of children, and "a
husband has the right to require that his wife shall
not bear to his - bed aliens to his blood and lineage"
(Tolentino, id., p. 290)
(2) But where the wife was already at an advanced stage
of pregnancy at the time of the marriage, the
husband can no longer invoke fraud as the condition
of his wife was already patent to him when they got
married (Buccat v. M galias, 72 Phil. 19).
(3) The fact that the wife was formerly a prostitute or has
delivered a child by another man before her marriage
AJ't 47 77

does not ronstitute a ground for annulment of marriage


on the ground of fraud, for it is not included in Art.
46(2). The husband should have investigated his wife's
background before he married her.
Art 47. The action for annulment of marriage must be
filed by the following persons and within the periods
indicated herein:
(1) For causes mentioned in number 1 of Article 45, by
the party whose parent or guardian did not give his
or her consent, within five years after attaining the
age of twenty-one; or by the parent or guardian or
person having legal charge of the minor, at any time
before such party reaches the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by
the sane spouse who had no knowledge of the other's
insanity; by any relative, guardian or person having
legal charge of the insane at any time before the
death of either party; or by the insane spouse during a
lucid Interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by
the injured party, within five years after the
discovery of the fraud;
(4) For causes mentioned in number 4 of Article 45, by
the injured party, within five years from the time the
force, intimidation or undue influence disappeared or
ceased;
(5) 'For causes mentioned in numbers 5 and 6 of Article
45 by the injured party, within five years after the
marriage, (87a)

Under this Article, in relation to Art. 45, the following


diagram shows the parties entitled to file the action for
annulment under each ground, the corresponding period of
prescription of action, and whether the defective marriage can
be ratified Or not:

- over -
71 Ad. 17

Gnuldfor Who can file ICIiM P.tod c:I CmVllidllkrl or


• AnrUmtllt Pr.mpIIM RadfiClldM
I
Within .5
Lad d (1) Party under age year. after
parl!l\ta1 .ttaini~ 21 Free cohabitall<XI
I COO8I!Ilt after r.chin~ 21.
(2) Parl!l\t or guar- Before dlild
I dian ream. 21

INanity d (1) Tile une epouee Before Free cohabitatim


<XIeparty death d aIter iNaIlI!
other party. regaiN aani ty.

(2) Guardian d in- -<lcr I

lint spouse

Ourin~ lucid
interval or after
W (3) lnMne spouse regai~ aanity,
al8() before death
d other party.
I

WiIhinS Free Cohabitati<XI


I
Fraud The injured yeara from after knowledge
party. diSCOVery d dfraud
fraud.
I

Force, Intimida- Within S Free rohabitatioo


tiro, or Undue I The injured year. frorn after cause has
Influence party. cessation d disa ppeared
cause.
,
Impotlllced The potent Within .5 Cannot be rati-
<XIeparty. party . years aIter tied, but action
marria~ I pre&Cribea.

SeriOUl sexually The healty Within .5 Cannotbe rati-


, traMnillllible di- party yean aiIII' lied, but lCIioo
- .... d one party mar'ria&8. pr8llCribs.

Periods of Prescriptio_n under ~rt. 87 of the Civil Code;

Note that under Art. 87 of the Civil Code, some


periods of prescription for the filing of the action for
annulment of marriage are different from those prescribed
in the above Art. 47 of the Family Code, to wit:
Alt.48

(1) In case of lack of parental consent, the period or


prescription for the filing of the action for annulment
by the -minor whose parent did not give parental
consent is within four years after reaching 18 for the
girl and 20 for the boy. .
(2) In case of fraud, the period of prescription is within
4 years from the discovery of the fraud.
(3) In case of violence or intimidation, the period of
prescription is within 4 years from the cessation of
the violence or intimidation; and
(4) In case of impotency of one of the parties, the period
of prescription is within 8 years from the date of the
marriage.

Art. 48. In all cases of annulment or declaration of


absolute nullity of marriage, the court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent co l l us io n
between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment (88a).

The above Article requires that in all cases of annulment


of marriage or declaration of nullity of marriage, the court
I.
shall order the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion
between the parties and to take- care that the evidence is not
fabricated or suppressed.
Under Art. 88 in relation to Art. 101, par. 2, of the Civil
Code, it is only when the defendant does not appear that the
court is required to order its fiscal to appear in behalf of the
State after ascertaining that there was no collusion between
the parties. Under the above Article, however, the trial or
prosecuting fiscal of the court shall be ordered to appear
whether the defendant appears or not. The reason for the
80 A.rt. 4f

intervention of the trial fiscal of the court at the trial of any


case involving the annulment or declaration of nullity of a
marriage is because marriage is not just a contract between the
parties but a social institution in the preservation of which the
'State is interested.
The above is also the reason why the second paragraph of
the above Artic1e provides that no judgment annulling a maniage
or declaring it void ab initio shall be based upon a stipulation of
facts or a confession of judgment. The purpose of this provision,
which is also found in Art. 88 of the Civil Code, is to prevent
collusion between the parties in obtaining a decree of annulment
or declaration of nullity of their marriage.
If, inspite of the above safeguards, the parties still
succeed in obtaining a decree of annulment or declaration of
nullity of marriage through collusion, the decree is absolutely
void. -

Art. 49. During the pendency of the action and in the


absence of adequate provisions in a written agreement
between the spouses, the court shall provide for the support
of the spouses and the custody and support of their common
children. The court shall give paramount consideration to the
moral and material welfare of said children and their choice
of the parent with whom they wish to remain as provided
for in Title IX. It shall also provide for appropriate visitation
rights of the other parent, (n)

•• (1) During the pendency of the case for annulment of


marriage or declaration of nullity of marriage, the
court shall provide for the support of the spouses
and the custody and support of their common
children, unless the parties have already agreed in
writing on such matters, which agreement the court
will then enforce.
(2) The support of the spouses and the children during
the pendency of the case shall of course come from
the absolute community or conjugal properties of the
spouses, '-
Art. 50 81

(3) After the annulment or declaration of the nullity of


the marriage, support between the spouses shall
already cease, since they are no longer husband and
wife and have no more duty to support each other,
but they shall continue to support their children.
(4) As to custody of the children, the court should be
guided by the best interests and welfare of said
children, taking into account all relevant
,
I

considerations, as well as the choice of the child over


I
seven years of age as to the parent he would like to
live with, unless the parent chosen is unfit (Art. 213,
first par).
(5) No child under seven years old shall, however, be
separated from the mother, unless the court finds
compelling reasons to order otherwise (Art. 213,
second paragraph). This provision amends Art. 17 of
P.O. 603 (the Child and Youth Welfare Code) stating
that in case of separation of parents, no child under
I'
five years of age shall be separated from his mother,
unless the court finds compelling reasons to do so, "III
and reverts to Art. 363 of the Civil Code providing
that no mother shall be separated from her child II
under seven years of age, unless the court finds
compelling reasons for such measure.
The Committee agrees with the Civil Code that
a child below seven years is still a baby who needs
,~
the loving care of his or her mother, and no one in
the world can take better care of a child than the II
mother. I,

(6) The Court shall also provide for appropriate


visitation rights of the other parent. 'Ii

Art. .SO.The effects provided f~~ in paragraphs (2), (3),


(4) and (5) of Article 43 and in Article 44 shall also apply in
proper cases to marriages which are declared void sb initio
or annuHed by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the
82 Art. SO
liquidatio~ partition and distribution of the properties of the
spouses, the custody and support of the common children,
and the delivery of their presumptive legitimes, unless such
matters had been adjudicated in previous judicial
proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of
the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on
which it is situated, shall be adjudicated in accordance with
the provisions of Articles 102 and 129.

. - (1) The provisions of Art. 43, pars. (2) to (5), and Art. 44,
shall also apply in proper cases to marriages declared
void lib initio or annulled under Arts. 40 and 45
hereof. Thus, in the liquidation of the absolute
community or conjugal partnership properties of the
annulled marriage, the following rules shall apply:
. (a) The share of the party who acted in bad faith in
the net profits shall be forfeited in favor of the
common children or, if none, the children of the
guilty spouse by a previous marriage, or in
default of-such children, the innocent spouse.
(b) Donations. by reason of marriage shall remain
valid, but donations in favor of the guilty spouse
shall be revoked by operation of law.
(c) The designation by the innocent spouse of the
guilty Ispouse as beneficiary in any insurance
policy may be revoked even if such designation
is stipulated as irrevocable. .
(d) The spouse in bad faith shall be disqualified to
inherit from the innocent spouse by testate or
intestate succession.
(e)' If both spouses are guilty, donations by reason of
marriage and testamentary dispositions made by
one in favor of the other shall be revoked' by
operation of law.
Art 51

Note that if the marriage is declared void ab initio, the


parties would not have an absolute community or conjugal
partnership of property, and the rules in Arts. 147 and 148 on
"Property Regime of Unions Without Marriage" would apply.
(See Comments under said Articles).
(2) The final judgment of annulment or declaration of
nullity of marriage shall provide for the liquidation,
partition and distribution of the properties of the
spouses, the custody and support of the common
Children, and the delivery of the presumptive
legitimes of said children, unless such matters had
already been adjudicated in previous proceedings.
(3) All creditors of the spouses as well as of their
absolute community or conjugal partnership shall be
notified of the proceedings for liquidation and should
be allowed to intervene to protect their interests.
(4) In the partition, the conjugal dwelling and the lot on
which it is situated shall be adjudicated in accordance
with Arts. 102 and 129, i.e,
(a) Said house and lot shall be adjudicated to the
spouse with whom the majority of the common
children should choose to remain.
(b) Children below 7 years are deemed to have
chosen the mother, unless the court decides
otherwise.
(c) In case there is no majority (of the common
children), the court shall decide, taking into
account the best interests of the children.

Arl 51. In said partition, the value of the presumptive


legitimes of all common children, computed as of the date of
the final judgment of the trial court, shall be delivered in
cash, property or sound securities, unless the parties, by
mutual agreement judicially approved, had already provided
for such matters.
The children or their guardian, or the trustee of their
property, may ask for the enforcement of the judgmenl
Alt. 52

The delivery of the presumptive legitimes herein


prescribed shall in no way prejudice the ultimate
successional rights of the children accruing upon the death
of either or both of the parents; but the value of the
properties already received under the decree of-annulment or
absolute nullity shall be considered as advances on their
legitime. (n) .

(1) In the partition of the net profits of the absolute


community or conjugal properties between the
spouses, the value of the presumptive legitimes of
their common children, computed as of the date of
the final judgment of the court, shall be delivered to
them in cash, property, Or sound securities, unless
the parties have already provided for such matters
and their agreement has been approved by the court.
(2) If the delivery of the children's presumptive l€gitime
is not made although ordered by the court, the
children, or their guardians or trustees, may ask the
court to enforce said judgment. 0

(3) The delivery of the presumptive legitimes of the


children shall be considered as advances on their
legitimes and shall not prejudice their ultimate
successional rights accruing to them upon the death
of either of their parents.

Ad. 52. 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. (n)

(1) The judgment of annulment or absolute nullity of


marriage, the partition and distribution of the
properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded:
Art 5J .nd Arl. 54 85

(a) in the appropriate civil registry; and


(b) _ in the registries of property of the places where
the real properties distributed and delivered are
located.
(2) Third persons will not be affected and prejudiced by
the aforesaid judgment unless the recording afore-
mentioned is complied with.
Arl 53. Either of the former spouses may marry again
after complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall
be null and void.

(1) Either of the former spouses may marry again after


complying with the requirements of the immediately
preceding articles.
(2) If any of them marries again without complying with
such requirements, the subsequent marriage shall be
null and void.
Art 54. Children conceived or born before the judgment
of annulment or absolute nullity of the marriage under
Article 36 has become final and exe cutcry, shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shan likewise be
legitimate.

(1) Children conceived or born of the subsequent


marriage under the immediately preceding article
shail, however, be legitimate, although said
subsequent marriage is null and void. The
Committee does not want the children to suffer
because of the fault of their parents.
(2) Children conceived or born before the judgment of
annulment of marriage under the preceding
provisions shall be considered legitimate. This is
because voidable or annullable marriages are valid
until annulled.
86 Art 54

(3) Children of marriages that are judicially declared null


and void or void ab initio are, however, illegitimate
(Art. 1,65), except for children born of the void
marriages under Art. 36 and under the immediately
, preceding Art. 53.
(4) Note that there are no more natural children by legal
fiction under the Family Code, which classifies
children only as legitimate. or illegitim-ate (Arts. 164
and 165).
TITLE 1I

LEGAL SEPARATION

1Laal S~aratjQn Distjnsuished from DiYQrce:


Absolute divorce (a vinculo matrimonii) dissolves the
marriage and the parties can marry again.
Legal separation or relative divorce (a mensa et thoro) is
only separation from bed and board but the parties remain
married.

Brief History of Divorce and Le.sa1 Separation in the


Philjp_pinU;

(1) During the Spanish regime, the law on divorce in the


Philippines was the Sieie Partidas which allowed only
legal separation. The provisions of the Civil Code of
Spain on !divor~~-=:1:were among those suspended by
Gov. Gen. Weyler on December 29, 1989 and had
never been in force since then.
(2) On March. II, 1917, Act 2710 was passed by the
Philippine Legislature repealing the Siete Pariidas by
allowing absolute divorce but only on two grounds;
adultery on the part of the wife and concubinage on
the part of the husband, and previous conviction was
necessary to prove the afore tioned offenses.
(3) During the ~occ~ ti ' , a new law on
abs~lute divorce (E.O. No. 141) as promulgated
. providing for~en grounds for " orce. This law was
effective until Oc 0 , ',944, when Gen. Douglas
MacArthur reestablished the Commonwealth
Government by proclamation which in effect repealed
E.O. No. 141 and revived Act 2710.
87
86 Title 11- LEGAL SEPARATION

(4) Act 2710 was repealed by the ~~ of the


Philippines which allows only le~ration. The
draft of the Code, however, had provisions on
absolute divorce, but during the discussions of the
Code in Congress and with the strong opposition
from the Catholic population of the country, absolute
divorce was eliminated and substituted with legal
separation.
(5) The Family Code also does not allow divorce (except
a divorce obtained by the .alien spouse ofa Filipino
citizen abroad under ~ sec, par.), but it has
expanded the grounds ~al separation into ten.

Are Foreisn Diyorces Obtained by Filipinos valid in the


PbjljmJines?

No, because divorce is not allowed in the Philippines,


and Filipinos cannot evade Philippine law by going abroad
and getting divorces there. Under Art. 15 of the Civil Code of
the Philippines. Philippine law governs the status of Filipinos
wherever they may be and even if they are abroad.

Laal Seeration D.istinillished frOID St$uation of prop~em;

(1) In legal separation, the common life of the spouses is


suspended, both as to person and as to properties.
In separation of property, only the property
relations of the spouses are suspended; that is, they
may still be living together, but their absolute
community of property or conjugal partnership is
dissolved.
(2) Legal separation cannot be granted on mere
agreement of the parties (Art. 60).
Separation of property can be effected by
agreement of the- parties, subject to court approval
(Arts. 134 and 136).
(3) Legal separation always involves separation of
property.
Alt. JS 89

!
,
There can be separation of property without legal
separation.
L~al Segllatioo Distinluished from SCRJration Dc Ea.do;

(1) Legal separation can be effected only by decree of


court, while the parties can separate at any time
without court order.
(2) Legal separation necessarily results in the dissolution
of the parties' absolute community of property or
conjugal partnership, the guilty party can no longer
,II
inherit from the innocent party, and the former's
share in the net profits of the absolute community of
property or conjugal partnership is forfeited. In
separation de [ado, the property relations of the spouses
remain and they are still heirs of each other, no matter
how guilty one spouse is, unless the innocent spouse
disinherits the guilty in his or her will.

Lelal Separation Distinsuished from Annulment 01


,,.
MarriaBe;

(1) In legal separa tion, the marriage is not defective; in


annulment, the marriage is defective.
(2) In legal separation, the grounds arise after the I~
marriage; in annulment, the grounds must exist at
the time of or before the marriage.
(3) In legal separation, the parties are still married to
each other and cannot remarry; in annulment, the
marriage is set aside and the parties can many again.

Art. 55. A petition for legal separation may be filed on


any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
90 Arl.55

(3) Attempt of respondent to corrupt or induce the


petitioner, a common child, or a child of the
pwtioner to engage in prostitution, or connivance
in such corruption or inducement:
(4) Final judgment sentencing the respondent to
imprisonment of more than six years, even if
pardoned;
(5) Drug addiction or habitual alcoholism of the
respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent
bigamous marriage, whether in the Philippines or
abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purpose of this Article, the term "child" shall
include a child by nature or by adoption. (97a)

Grounds for Legal Separation_in the Civil Cgde and la the


Family Code Compared;

In the Civil Code, there a re only two grounds of legal


separation:
(1) Adultery of the wife and concubinage of the
husband, both as defined Ul the Revised Penal Code,
although criminal conviction is not necessary: and
(2) Attempt by one spouse against the life of the other
(attempted or frustrated parricide), and again,
criminal conviction is not necessary (Art. 97).
. In the Family Code, however, there are ten grounds for
legal separation, thus answering the long-standing need to
broaden the grounds for legal separation which the Civil Code
limits to only two. These grounds will be discussed as they
appear in the above article.
Art. 55 91

(1) This may be directed against the petitioner, a


common child, or a child of the petitioner.
(2) This ground will give relief to wives who are often
maltreated or grossly insulted by their husbands. But
even wives can also be guilty of grossly abusive
conduct against their husband, like constant nagging
of the husband by the wife.

PhJskd Violence or Moral Pressure to Cpmpel the Petitionea


.to ChanB Rei_ion or Political Affilia~nJArt. 55 mt:
This ground was included because there are known cases
of a husband inflicting violence or using force on his wife to
compel the latter either to follow his religion or his political
affiliation.

*,ttemgl·1p Opmqpt Petitioner or Child to Enl'. 11


PrgstitutiCWI lAd. .. 0));

(1) The one whom respondent has attempted to corrupt


may be his wife, their own daughter, a daughter of
his wife by a former marriage, or a natural child of
the latter.
(2) Connivance in such attempt to corrupt or induce into
prostitution is also included.
(3) This is particularly important in recent times because
of the proliferation of child prostitution; sometimes
with the knowledge and consent of parents.

Final Judlment Sentencins Respondent to More Than Six


Years' Imprisonment (Art. 55 (4ll.

(1) This presupposes a conviction.


(2) The penalty imposed must have been more than six
years (which means that the crime is serious and not
probationable, since probation is allowed only in
,
Ad. 55

cases where the penalty imposed is not more than six


years.)
(3) The ground applies even if the respondent had
already been pardoned (by the President, not by the
offended party).

DN AddictiOQor Habitual Alcoholism (Art. 55 (5)

This is a very common situation (especially habitual


(1)
alcoholism of one spouse), and the aggrieved spouse
should be given the remedy of at least legal
- separation if life has become unbearable.
(2) If the drug addiction or habitual alcoholism of one
spouse was present at the time of the marriage and has
deprived him or her of the capacity to perform the
essential obligations of marriage, it can even amount to
~ / psychological incapacity under Art. 36 which is a
ground for declaring the maniage null and void.
(3) If the drug addiction or habitual alcoholism was
.lI
~
Iconcealed from the other spouse, it also constitutes
fraud which is a ground for annulment ,1 marriage if
present at the time of the marriage (h 6 (4».
~Lesbianismor Homoss:xualilI (Art. 55 (6);

(1) This means attachment by One spouse to the same


sex for sexual fulfillment.
.{2) If it was already present at the time of the wedding,
it can be a ground either for declaring the marriage
/ void under Art. 36 (psychological incapacity) or for
.&Lv annulment of the marriage, if it w~s concealed from
the other spouse (Art. 46 (4».

,Contractinl bI One Spouse of Another Marrial'


,(Art.55 CDb

(1) This is a ground for legal separation, whether the


second marriage was contracted in the Philippines or
abroad.
Alt.55 93
(2) If a Filipino gets a foreign divorce from his or her
Filipino spouse and marries again, the second
marriage is bigamous; hence, it is a ground for legal
separation, and also for prosecution for bigamy, if the
second marriage was contracted in the Philippines.
(3) If the husband did not contract a second marriage but
is only living with another woman. the ground will be
"sexual infidelity" under par. (8) of this Article.

lSexull Infidelity or Perversion (Art. 55 (8))..

(1) This ground takes the place of the ground of


adultery on the part of the wife and concubinage on
the part of the husband in the Civil Code. This
change answers the demands of Filipino women for
the elimination of the double standard between men
and women, since concubinage on the part of the
husband is very hard to prove <the man usually just
keeps a mistress in another place but goes home to
his wife every evening), while one sexual intercourse
with another man is already adultery on the part of
the wife.
(2) The ground of "sexual infidelity" also gives the court
leeway to determine whether the unfaithfulness of
the husband ot the wife is sufficient to justify an
action for legal separation by the other spouse.
(3) As to "sexual perversion", the Code does not also
define the same to provide the court leeway in
determining whether the ground does exist or not,
which may be determined on a case-to-case basis.

ettempt by One Spouse Alainst the Life of the Other (Art.


~um
(1) This implies intent to kill; j.e., attempted or
frustrated parricide.
(2) Mere infliction of physical injuries is not enough.
However, if it is repeatedly done, it can fall under
I

Art. 55
par. (1) of this Article. On the other hand, if the
guilty spouse is convicted and the penalty is more
than six years, it would fall under par. (4) of this
Article.
(3) If the act of the respondent spouse is justified, as
when a husband catches his wife in the act of
adultery, there is no ground for legal separation.
(4) Likewise, if the respondent spouse acts in self-
defense or in defense of a child against the unlawful
aggression of the other spouse, there is no ground
for legal separation.
(5) There is no need for criminal conviction for the
ground to be invoked.
(6) If the act is the result of criminal negligence, the
ground does not exist since there is no intent to kill.

k'bandonment of One Spollse by the Other for More Than


One Year {Art. 55 nOn,
(1) Abandonment is not mere separation, but when one
spouse leaves the family and the conjugal dwelling
with no intention of returning (Art. 101, this Code),
Hence, there is a complete cessation of marital
relations between husband and wife, both personal
and property, as well as parental relations with the
children.
(2) The abandonment must be without justifiable cause ..../
I
(3) The abandonment must be for more than one year. ;/
(4) If there is only physical separation between the
spouses, but they still support each other and also /
support and maintain the children, there is nov
abandonment.
Reference to ''Child'' in this Article Includes Adol'ted Child.

By express provision of the last paragraph of this Article,


all references therein to "child" includes a child by nature
(whether legitimate or illegitimate) or a child by adoption.
Arl. 56 95

Art. 56. The petition for legal separation shall be denied


on any of the following grounds:
(1) Where the aggrieved party has condoned the
offense or act complained of:
(2) Where the aggrieved party has consented to the
commission of the offense or act complained of:
(3) Where there is connivance between the parties in I'
the commission of the offense or act constituting
the ground for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to
obtain the decree of legal separation; or
(6) Where the action is barred by prescription. (lOOa)

Defenses to Legal Separation the Same as in Civil Code.

This Article provides for the same defenses to an action II


for legal separation as those in the Civil Code, except that the
Family Code has simplified the provisions of the Civil Code
on these defenses by putting them all in one Article.

Defenses Qiscussed: II

(1) Condonation (Art. 56 (1»: 'I


(a) Condonation is the forgiveness or pardon of the
guilty spouse by the aggrieved spouse.
(b) Condonation may be express or implied, as sleeping
together with the unfaithful wife after full knowledge
of her infidelity (Cinez v. Bugayong, 100 Phil. 616).
(c) Condonation comes after, not before, the commission
:~
I~
of the offense (People v. Schneckenburger, 73 Phil. II
413). -
(d) While there may be implied condonation if the
innocent spouse has voluntary sexual intercourse
with the guilty spouse after full knowledge of the
offense, there is no condonation if the reason for the
sexual intercourse was to save the marriage and
96 Arl. S6

maintain harmony (Keezer, Marriage and Divorce, p.


557) or for the purpose of attempting a reconciliation
but the. attempt was unsuccessful (Hawkins v.
Hawkins, 286Pac. 747).
(e) Each sexual intercourse by the wife with another man
is a. separate act of adultery. Therefore, condonation
of one act by the husband does not necessarily imply
condonation of the other acts. (People v, Zapata and
Bondoc, L-3047, May 16, 1951).
(0 If the wife leaves the conjugal home after her
adulterous acts were diccovered, the fact that the
-husband does not actively look for her is not
condonation. It is not the duty of the husband to
search for the wife; on the other hand, it is the duty
of the wife to return home (De Ocampo v. Florencio,
L-13553, Feb. 23, 1960).

(2) Consent (Art. S6 (2»:


(a) Consent may be express or implied.
(b) Consent is prior to the act; condonation, after the act.
(People v. Schneckenburger, supra; Matubis v.
Praxedes, Oct. 25, 1960, 109 Phil. 709).
(c) Where the spouses entered into an agreement that
each could live with and have carnal knowledge with
other persons without interference from each spouse,
the agreement is null and void being contrary to law

~ I and morals, but it may be considered consent which


bars an action for legal separation
Schneckenburger,
(People v.
supra). This is an example of
express consent.
(d) Example of implied consent: The husband was
abandoned by the wife who later lived with another
man. The husband took no action against the wife
but even went to Hawaii. After 7 years, the husband
returned and filed an action against the wife for
adultery. The wife was acquitted on the ground that
the husband's conduct warranted the inference that
Arl.56 97

he had consented to the philandering of his wife.


(People v. Sansano and Ramos, 59 Phil. 73).

(3) Connivance 56 (3»:


(Art.
(a) A husband who actively connives in the adultery of
his wife by luring her into adultery cannot ask for
legal separation on the ground of connivance. It is
the duty of the husband to protect his wife from
temptation and not connive in her downfall. (I
Tolentino, id, 313).
(b) Thus, a husband who hires a detective to spy on his
wife and tells the latter to have sexual intercourse
with her in order to have evidence, is a case of
connivance (Keezer, Marriage and Divorce, pp. 550-
551).
(c) But connivance must be distinguished from /
~ entrapment. Where a husband tells the wife that he
is going out of town but does not really go away but
goes to their conjugal home at midnight to catch the
wife with a lover and later surprises the wife in an
act of adultery, there is no connivance (See Robbins
v. Robbins, Am. Rep. 448).
(d) In view of the new grounds for legal separation
under the above Article of the Family Code, there can
be other cases of connivance not yet presented. to the
courts for decision.
(4) Mutual Guilt (Art. 56 (4»:
(a) Where both parties have given ground for legal
separation, neither can file an action for legal
separation.
(b) The guilt may be of the same ground (like sexual
infidelity), or different grounds (like homosexuality
on the part of the husband and sexual infidelity on
the part of the wife).
(c) This defense is based on the principle that a person
must come to court with clean hands. It matters not
whether it was the petitioner or the respondent who
N ~B
committed the first offense, or one is more guilty
than the other.
(d) The parties being both guilty, there is no offended
spouse who deserves to file the action, and this is
true even if one spouse has been pardoned by the
other spouse, but the latter has not been pardoned
(Benedicto v. De La Rama, 3 Phil. 34).
(5) Collusion (Art. 56 (5»:
(a) This is collusion between the spouses to obtain the
decree of legal separation.
(b) This means that the spouses agree to make it appear
in court that one of them has committed a ground
for legal separation, or to suppress evidence of a valid
defense to such action, for the purpose of enabling
the other to obtain a decree of legal separation. For
example, one spouse files a case for legal separation
on the ground of the infidelity of the other, and the
other spouse agrees not even to answer or deny the
charge, and does not also appear in court at all.
(c) Under Art. 60 of the Code, legal separation cannot be
decreed on a stipulation of facts or a confession of
judgment (which can imply collusion between the
parties), and the court shall order its prosecuting
fiscal to take steps to prevent collusion between the
parties and to take care that the evidence presented
by either of them is not fabricated.

(6) Prescription of the Action (Art 55 (6»:


(a) If the action is already barred by prescription under
Art. 57, it will not prosper.
(b) Even if prescription is not alleged, the court can take
cognizance thereof for purposes of dismissing the
action, since such action involves public policy and it
is the policy of the law that no decree of legal
separation be issued if there is a legal obstacle
thereto appearing in the record (Brown b. Yambao,
102 Phil. 198).
Arl. S7 99

(c) In the case of adultery by the wife, each act of sexual


intercourse is a separate act of adultery. Hence, the
prescriptive period shall be computed from the last act
of adultery, unless there was condonation or consent
(Ocampo v. F1orenciano, L-13553, Feb. 23, 1960).
(d) Where the wife heard rumors of her husband's
infidelity but did not discuss the matter with her
husband, and it was only later that she confronted
him and he admitted the act, the period of
prescription must be computed from such admission
and not from her receipt of hearsay information
about her husband's infidelity (Contreras v. Macaraig,
33 seRA 222).
Art. 57. An action for legal separation shall be filed
within five years from the time of the occurrence of the
cause. (102a)

I.,his Article Amends Art. 102 of the Civil Code:

Under Art. 102 of the Civi Code, there are two periods to
consider in determining whether the action for legal separation
has prescribed, namely:
(1) The action must be filed within one year after
knowledge of the cause;
(2) The filing of the action must be within five years
from the occurrence of the cause.
The lapse of either period will bar the action, even if the
other period has not yet expired.
Thus, where the husband came to know of the adultery
of his wife in August 1950 but filed the action for legal
separation only in February, 1953, it was held that the action
has prescribed (Juarez v, Turon, 51 Phil. 736).
Under the above Article of the Family Code, however,
the first period (of one year from knowledge) has been
eliminated since the experience of our courts shows that many
aggrieved spouses (mostly wives) could not comply with such
period (which is too short) since they still resorted to other
100 Art. 58 6nd Art. 59

means (like consulting with their families, friends, or spiritual


ad visers, or prayers) before filing the actions for legal
separation. -
The period for prescription under the above Article is now
"within five years from the time of the O<X:UITence of the cause"
which is long enough for any. aggrieved spouse to discover the
cause and to bring the matter to court. If he or she still does not
file the action within said period of five years, he or she is
deemed to have waived the right to me the same or to have
preferred not to file the action.

Art. 58. An action for legal separation shall in no case


be tried before six months shall have elapsed since the filing
of the petition. (103)

(1) This article is intended to give the spouses a chance


to reconcile. The 6-month period after the filing of
the action is a cooling-off period given by law to the
spouses during which their passions may subside,
. the offended spouse may forgive the offending
spouse, and reconciliation between them may take
I place.
cl' (2) Even during this period of 6 months, however, the
court must still provide for the support of the
spouses and the children as well as the custody of
the children (Araneta v. Concepcion and Benitez
Araneta. L-9667, July 31, 1956, 52 O.G. 5165):

Art. 59. No legal separation may be decreed unless the


court has taken steps toward the reconciliation of the
spouses and is fully satisfied, despite such efforts, that
reconciliation is higbl ,- improbable. (n)

(1) Like all cases involving spouses and members of the


same family, the court Is- enjoined to take steps
toward the reconciliation of the spouses and must be
fully satisfied that, despite such efforts, reconciliation
is highly improbable.
Art if} 101

(2) Again the purpose of this Article is to see to it that


all avenues for reconciliation are exhausted to
prevent the break-up of the marriage, before legal
separation is granted. The Court must use its moral
. influence Over the parties and its persuasive powers
to try to reconcile them. Many parties in fact go to
court in the heat of anger and passion. without even
talking to each other about their problem, so that the
Court must give them opportunities for
communication as well as provide them with
counseling before it should hear the case on the
merits. Thus, it is the practice of family courts to set
the case for legal separa tion for reconcilia tion
conferences many times, and only when they do net
succeed in reconciling the spouses tha t they set the
case for hearing on the merits.
Art. 60. No decree of legal separation shall be based
upon a stipulation of fads or a confession of judgment
In any case, the court shall order the prosecu ting
attorney or fiscal assigned to it to take steps to prevent
collusion between the parties and to take care that the
evidence is not fabricated or suppressed. (lOla)

Legal Smaratipn Cannot be Granted on Stipulation of Facts


or Confession of IudBment

(1) There must be proof of the ground for legal


separation, not a mere stipulation or agreement of
the parties that such ground exists, or a confession of
judgment on the part of the respondent or defendant
spouse. This rule is intended to prevent collusion
between the parties.
(2) Rule 19 of the Revised Rules of Court also requires
that in actions for annulment of marriage or legal
separation. the material facts alleged must be proved,
and a judgment on the pleadings is not allowed.
1

102 Ad. 60

(3) A decree of legal separation based on a mere


stipulation of facts of the parties, without proof of
such facts, is void and of no effect.
(4) Proof of the facts m~y be either direct or
circumstantial, and mere preponderance of evidence
is enough, unlike in criminal cases where there must
be proof beyond reasonable doubt.
(5) If the defendant does not answer the complaint or
appear at the trial, the plaintiff or petitioner must still
present his or her evidence.
(6) Even if the defendant admits. the allegations of the
petition or the complaint, if there is evidence of the
ground for legal separation independently of such
admission, the decree is still valid. What the law
prohibits is a judgment based solely on the defendant's
confession. (Ocampo v. Florenciano, 107 Phil. 35).
Intervention of Trial Fiscal:

Under Art. 101, sec. par., of the Civil Code, the court is
required to order the prosecuting attorney to inquire whether
collusion exists between the parties only in case of, non-
appearance of the defendant, and if there is no collusion, the
prosecuting attorney shall intervene for the State in order to
take care that the evidence for the plaintiff is not fabricated.
Under the above Article of the Family Code, however,
the court is required in every case to order its trial fiscal to
take steps to prevent collusion between the parties and to take
care that the evidence is not fabricated or suppressed. In other
words, whether the defendant answers the complaint or not,
/ and appears at the trial or not, the trial fiscal must always be
V--4
--t
present at the trial in representation of the State, and may
cross-examine the witnesses and the documentary evidence
presented to prevent the presentation of false evidence or the
j
suppression of the true evidence. The fiscal can also opposea.:-
the complaint or petition through the presentation of his own
evidence if in his opinion, the proof presented by the plaintiff
or the petitioner is insufficient, dubious or fabricated.
Arl. 61 snd Arl. 62 103

Art. 61. After the filing of the petition for legal


separation, the spouses shall be entitled to live separately
from each other;
The court, in the absence of a written agreement
between the spouses, shall designate either of them or a
third person to administer the absolute community or
conjugal partnership property. The administrator appointed
by the court shall have the same powers and duties as those
, of a guardian under the Rules of Court. (104a)

Effects of Filinl of Petition for Lalal Sepaution;


(1) After the filing of the petition for legal separation,
the spouses are already entitled to live separately
from each other. Hence, the wife can already have a
domicile or residence of her own independently of
her husband.
(2) Since the parties are already entitled to live
separately, the husband has no more right to have
sexual intercourse with his wife and if he forces
himself upon her, he can be charged with rape.
(3) In the absence of an agreement between the parties,
the court shall designate the husband or the wife to
manage the absolute community or conjugal
partnership property.
(4) The court may even designate a third person to
administer the properties of the couple.
(5) In every case, the administrator appointed by the
court shall have the same powers and duties as a
guardian under the Rules of Court. He or she
cannot, therefore, alienate or encumber any property
of the -spouses without court authority.

Art. 62. During the pendency of the action for legal


separation, the provisions of Article 49 shall likewise apply
to the support of the spouses and the custody and support
of the common children. (105a)
101
A.tt 63

Props ions of Art. 49 Shall AR,17 durina the Pendena pf the


Action as to SURRort of Spo\&§e.sand Custody and SuReU1
of Children;

See Comments under Art. 49.

Effect of Death of Plaintiff or Petitioner Purina Pendeney pf


~ctiqn;

(1) An action for legal separation is purely personal


between the spouses. Hence, the death of one party
causes the death of the action itself and the action
must be dismissed. (Lapuz, Sy v. Eufemio, 43 SCRA
177).
(2) In one case, the wife brought an. action for legal
separation against her husband on the ground of
concubinage committed by the latter, and prayed that
the husband's share in their conjugal partnership
profits be forfeited. During the pendency of the case,
the wife died, and the court dismissed the case. The
wife's father, who was her sole heir, appealed.
It was held that the action did not survive the
death of the wife. Even if the action involved
property rights of the deceased wife, these rights
were intransmissible, mere effects of legal separation,
and mere rights in expectation before the finality of
the decree. Hence, they cannot survive if the plaintiff
dies prior to the decree. <Lapuz Sy v. Eufemio, supra)

Art. 63. The decree of legal separation shall have the


following effects:
(1) The spouses shall be entitled to live separately from
each other, but the marriage bonds shall not be
severed;
(2) The absolute community or the conjugal
partnership shall be dissolved and liquidated but
the offending spouse shall have no right to any
share of the net profits earned by the 'absolute
IDS II.
community or the conjugal partnership; which shan
be forfeited in accordance with the provisions of
Article 43 (2);
(3) The custody of the minor children shall be awarded
to the innocent spouse, subject to the provisions of
Article 213 of this Code; and
(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent
spouse shall be revoked by operation of law. (106a)

Iflfeds of LeJal Separation;

(1) Spouses entitled to live separately, but marriage


bonds are not severed:
(a) Parties cannot get married again to others ,,,Ii
because they are still married. If either party gets
married again, he or she commits bigamy (U.S.
v. [oanino, 27 Phil. 477).
(b) Although the parties have the right ,to live
separately from each, the obligation of mutual
fidelity remains. Hence, the wife may be
convicted of adultery or the husband of
concubinage if either commits any of such
crimes;
(c) Since the right to cohabit or live together has
ceased, the husband cannot insist in having
sexual intercourse with his wife. If he forces her,
he will be guilty of rape.
(d) The wife can already establish a domicile
separate from her husband.
;:
I
(2) Absolute community or conjugal partnership between
the parties is dissolved:
(a) The absolute community or conjugal partnership
between the parties is _dissolved, but the
106 Art. 63
offending spouse shall have no right to any
share of the net profits, which shall be forfeited
in accordance with Art. 43(2) in favor of the
common children of the spouses, if any, or the
children of the guilty spouse by a previous
marriage, if any, Or the innocent spouse.
(b) In the Civil Code (Art. 106(3) in relation to Art.
176), there is no forfeiture if the conjugal
partnership property came mostly or entirely
from the work or industry, Or the wages and
salaries, or the fruits of the separate property, of
the guilty spouse. In the Family Code, the
forfeiture of the share of the guilty spouse is
without exceptions.

(3) Custody of minor children shall be awarded to the


innocent spouse, subject to the provisions of Art. 213.
See comments under Arts. 213 and 49.

(4) Offending spouse disqualified from inheriting from


innocent spouse by intestate succession, and
provisions in his favor in will of latter revoked by
operation of law.
(a) In short, the offending spouse cannot inherit
from the innocent spouse in both testate and
intestate succession.
(b) The offending spouse is not even entitled to the
legitime.

~ ~ j (C) Even if the offended spouse forgets or fails to b(1


revoke a will in favor of the offending spouse,
the will becomes ipso jure revoked.
rJ",fCIA (d) If, howev~r,. the offended spous~ executes A r"!'
~ another WIll In favor of the offending spouse' '-r"t
after the decree of legal separation, the will shall
be valid.
1r; (e) The conviction of the wife of adultery does not
•• disqualify her to inherit from the offended
Art. 63 107

husband, if there is no decree of legal separation


between them, for Art. 1032 of the Civil Code
does not make such act one of unworthiness that
would render the guilty spouse incapable of
succeeding from the innocent- spouse. To
disqualify the wife from inheriting from the
offended husband, the latter must file a case of
legal separation against the former. This is also
provided in Art. 1002, Civil Code, which states
that "in case of a legal separation. if the surviving
spouse gave cause for the separation, he or she
shall not have any of the rights granted in the
preceding articles" (meaning the right to inherit
by intestate succession).

Support .betweeo the SROUS~_,1,jpLeaal SQParatioPj

(1) During the pendency of the proceedings, the spouses


and the children shall be supported from the
properties of the absolute community or the conjugal
partnership (Art. 198).
(2) After the decree of legal separation, the obligation of
mutual support between the spouses ceases (id)
(3) The court may, however, order the guilty spouse to
support the innocent one, specifying the terms of
such order, if the latter needs such support (id.),
considering that they are still married.

Can the Wife Dro.p the Name of Her Husband after the pe-
~ree of Lesal Smaratiop?

No, because they are still married. And this is true


whether she is the guilty party or not.
As held in Laperal v. Republic 6 SCRA 357 (Oct. 30,
1962), the wife who has been granted legal separation cannot
petition to be allowed to revert to her maiden name for the
Civil Code prevails over the Rules of Court.
108 Art u
To allow the wife to revert to her maiden name after the
legal separation would also give the impression that she is no
longer a married woman when in truth. she is still manied to
her husband. .
Art •. 64. After the finality of the decree of legal
separation, the innocent spouse may revoke the donations
made by him or by her in favor of the offending spouse, as
well as the designation of the latter as a beneficiary in any
insurance policy, even if such designation be stipulated as
irrevocable. The revocation of the donations shall be
recorded in the registries of property in the places where the
properties are located. Alienations, liens and encumbrances
registered in good faith before the recording of the
complaint for revocation in the registries of property shall be
respected. The revocation of or change in the designation of
the insurance benefiCiary shall take effect upon written
notification thereof to the insured.
The action to revoke the donation under this Article
must be brought within five years from the time the decree
of legal separation has become final. (107a)

Donations PIQRIerNgtjas between the Spouses;

(1) After the finality of the decree of legal separation. the


innocent spouse may revoke donations made by him or
her in favor of the offending spouse within five (5)
years from such finality.
(2) The revocation shall be recorded in the registries of
property in the places where the donated properties
are located.
(3) Alienations, liens and encumbrances .sgtstered in
good faith before the recording of the complaint for
revocation in the registries of property shall be
respected. - '.
(4) Note that donations propter nuptias to the guilty
spouse are not automatically revoked after the d~
of legal separation. The innocent spouse has to file
Art. 65 109

an action to revoke, and if he or she does not do so


within the prescriptive period, the action cannot be
filed anymore. Furthermore, if the innocent spouse
dies without filing the action, the donation subsists.
(5) Note also that while the prescriptive period for
revocation of the donation is four (4) years under
Art. 107 of the Civil Code, it is five (5) years under
the, above provision.

Inswance Policies with Guilly Spouse as Beneficia

(1) Under the above Article, the innocent spouse may


also revoke any insurance policy where the guilty
spouse has been designated as a beneficiary after the
decree of legal separation has become final.
(2) The right to revoke exists even if the designation of
the guilty spouse as beneficiary in the insurance
policy is stipulated to be irrevocable.
(3) But the revocation shall take effect only upon written
notification thereof to the insured.
(4) There is no prescriptive period for the innocent
spouse to revoke insurance policies in favor of the
guilty spouse. He or she may do so as long as the
policy is effective.
(5) The above rule on insurance policies supersedes the
decision of the Supreme Court in Gercio v. Sun Life
Assurance Co. of Canada, 48 Phil. 53, that a wife
who has been named irrevocable beneficiary in the
insurance policy of the husband gets the insurance
indemnity after his death. even if she had committed
adultery and the husband had obtained legal
separation from her.

Art. 65. If the spouses should reconcile, the


corresponding joint manifestation under oath duly signed by
them shall be filed with the court in the same proceeding
for legal separation. (n)
110 Art. 66 snd Art. 67

This is a new provision in the Family Code. There is no


provision in the Civil Code expressly requiring the parties to
the case for legal separation to notify the court if they had
reconciled. Thus, there are cases where after the decree of
legal separation, the court does not even know that the parties

,
,• have already reconciled and the decree of legal separation, in
effect, has ceased to be effective.
The above provision of the Family Code now requires the
spouses, should they reconcile, to file a joint manifestation
under oath duly signed by both, in the same proceeding for
• legal separation. And this is true whether the proceeding is
still pending or it has already been terminated by a decree of
legal separation.

Art 66. The reconciliation referred to in the preceding


Article shall have the following consequences:

•,
I
(1) The legal separation proceedings, if still pending,
shall thereby be terminated in whatever stage; and
(2) .The final decree of legal separation shall be set
aside, but the separation of property and any
forfeiture of the share of the guilty spouse already
effected shall subsist, unless the spouses agree to
revive their former property regime.
The court order containing the foregoing shall be
recorded in the proper civil registries. (10Ba)
I
Art. 67. The agreement to revive the former property
regime referred to in the preceding Article shall be executed
under oath and shall specify:
(1) The properties to be contributed anew to the
restored regime;
(2) Those to be retained as· separate properties of each
spouse; and
(3) The names of all their known creditors, their
addresses and the amounts owing to each.
The agreement of revival and the motion for its
approval shall be filed with the court in the same proceeding
Art. 67 111

for legal separation, with copies of both furnished to the


creditors named therein. After due hearing, the court shall,
in its order, take measures to protect the interest of creditors
and such order shall be recorded in the proper registries of
property.
The recording of the order in the registries of property
shall not prejudice any creditor not listed or not notified,
unless the debtor-spouse has sufficient separate properties to
satisfy the creditor's claim. (195a, 108a)

Flfects of Reconciliation of the Spouses;


(1) On their personal relations:

(a) Reconciliation means resumption of cohabitation and


marital rela tions.
(b) It is a bilateral act requiring the common consent of
the spouses, express or implied
(c) Mere friendly relations between the spouses, without
actual 'living together as before, is not sufficient to
constitute reconciliation.
(d) After reconciliation, if one of the spouses commits
another act constituting a ground for legal separation,
the innocent spouse can file another action for legal
separation based on the new ground.

(2) On the proceedings for and decree of legal separation:.

(a) If the proceedings are still pending, they will be


terminated in whatever stage.
(b) If there is already a decree of legal separation, it will
be set aside by a court order to that effect.
(c) It is only upon the issuance of a court order setting
aside the decree of legal separation that said decree
becomes ineffective. In the Civil Code, there is no
requirement of a court order, so that the court and
third persons do not know exactly when the decree
of legal separation is deemed rescinded by the
112 Arl.67 Arl. ~7

reconciliation of the spouses. In fact, they might not (d)


even know that the parties have already reconciled.
(d) The court order setting aside the decree of legal (e)
separation shall be recorded in the civil registry where
said decree was entered, as well as the civil registry of
the place where the parties reside, if they have changed m
residence after the decree.

(3) On the property relations of the spouses:

(a) Under the Civil Code, the reconciliation of the


spouses results in the automatic revival of their
conjugal partnership or other property regime that
prevailed between them prior to the legal separation
(Art. 108, sec. par.), without prejudice to acts and
contracts executed by the spouses during their
separation (Art. 195). (g)
Under the above Art. 67 of the Family Code,
however, the separa tion of property between the
spouses and any forfeiture of the share of the guilty
spouse shall continue to subsist after the

I reconciliation, unless the spouses agree to revive their


former property regime.
(b) If the spouses agree to revive their former property
regime, they shall execute an agreement under oath
specifying:
(i) the properties they are contributing anew to the
restored regime; .
(ii) the properties retained by each spouse as separate
property; and
(iii) the names and addresses of all known creditors
of each spouse, the amounts owing to each, and
the liens held by each, if any. (h)
(c) The spouses should then submit to the court the above
mentioned agreement of revival together with a motion
asking for its approval. The motion shall be submitted
in the same proceeding for legal separation.
113

Copies of the agreement and the motion shall be


furnished the creditors named in the agreement.
After due hearing, the court shall issue an order
approving the agreement but it shall take measures
to protect the interests of the creditors named therein.
The court order approving the parties' agreement
shall be recorded in the proper registries of property
in all the places where the spouses have properties.
This recording is in addition to the recording of the
order setting aside the decree of legal separation in
the civil registry where the decree of legal separation
is recorded. as well as in the place where the parties
reside, if they have changed residence. In other
words, there will be double recording in the proper
registries of property, and in the proper civil
registries.
The recording of the said order shall not, however,
prejudice creditors not listed or not notified of the
_prpceedings, unless the debtor-spouse has sufficient
separate properties to satisfy the claims of such
creditors. In other words, the revival of the old
property regime between the parties is without
prejudice to vested rights already acquired by
creditors prior to such revival. In effect, a legal lien is
created in favor of unsecured creditors. Thus:
(i) Contractual lienholders retain their liens;
(ii) Creditors without liens are given a legal lien;
(iii) In case of insufficiency of properties of the
debtor-spouse with which to pay his or her
creditors, the future share of said spouse in the /
community or conjugal properties will answer
for his personal obligations.
There is no more publication of the proceedings,
because publica tion is very expensive and it is
usually made in newspapers that nobody reads.
Anyway, creditors not personally notified of the
proceedings are not affected by the same.
114 tta« /I. LEGAL SEPARATION

(1) The creditors not notified of the proceedings may


assert their claims against the debtor-spouse within
the ordinary periods of prescription.
(See Minutes of Committee meeting of March 9, 1985)
Article 68

TITLE III

RIGHTS AND·OBLIGATIONS BETWEEN


HUSBAND AND WIFE

Art. 68. The husband and wife are obliged to live


together, observe mutual love, respect and fidelity, and
render mutual help and support. (109a)

The personal obligations of the spouses to each other are:


(1) to live together,
(2) to observe mutual love, respect, and fidelity; and
(3) to render mutual help and support.
The above Article is the same as Art. 109 of the Civil
Code except for the addition of the spouses' duty to observe
mutual love" apart from the mutual duty to respect and
observe fidelity towards each other. The duty to observe
"mutual love" has been added because every marriage must be
founded on mutual love, a love that is not just a feeling but a
deep, abiding unity, maintained by will and reinforced by the
grace which both partners ask and receive from God, a love Ii
that they should have for each other even at moments when 0
they do not like each other and even when each would easily, I bVtAy
if he or she allows himself, be "in love" with someone else .. -
(C.S. Lewis, Mere Christianity, p. 97).

Dull to Live TO;Jeth,er:


(1) The duty to live together includes cohabitation or
consortium and sexual intercourse.
(a) The right to sexual intercourse involves normal
intercourse. Thus, the wife may refuse to have
sexual intercourse with the husband if he resorts
to abnormal or perverse practices.
115
116 Art 68

(b) The wife can also refuse to have sexual


intercourse with the husband if she is ill, if it
would endanger her health, or if he is suffering
from some. venereal disease.
(c) If the husband forces the wife to have sexual
intercourse with him against her will, he may be
charged with coercion.
(2) The wife has the duty to live with her husband, but
she may refuse to do so in certain cases like:
(a) If the plaee chosen by the husband as family
residence is dangerous to her life;
(b) If the husband subjects her to maltreatment or
abusive conduct or insults, making common life
impossible;
(c) If the husband compels her to live with his
parents, but she cannot get along with her
mother-in-law and they have constant quarrels
(Del Rosario v. Del Rosario, CA, 46 G.G. 6122);
(d) Where the husband has continuously carried
illicit relations for 10 years with different women
and treated his wife roughly and without
consideration (Dadivas v. Villanueva, 54 Phil. 92),
(e) Where the husband spent his time in gambling,
giving no money to his family for food and
necessities, and at the same time insulting his
wife and laying hands on her (Panuncio v. Sula,
\

CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a
vagabond life as a tramp (1 Manresa 329).
(g) When the h'Jsband is carrying on a shameful
business at ••ome (Gahn v. Darby, 36 La. Ann.
70).
(3) If the wife abandons the conjugal home without
justifiable cause, can the husband compel her to come
V home under pain of contempt of court?
No, because cohabitation is a purely personal
o obligation, and to compel the wife to comply with
Art.6lJ 117

such obligation would be a violation of her personal


liberty which is guaranteed by the Constitution
(Arroyo v. Vasquez de Arroyo, 42 Phil. 54).

But the husband has the following remedies:


(a) to withhold support from the wife (Arts. 100(1) and
127(1»; I~ •

(b) to recover moral damages from the wife <1fencha_xez


v. Escano, 15 SCRA 335, 17 SCRA 674); and
(c) to ask the Court to counsel his wife under Art. 72.

Duty to Observe MutUAl Love, Remect and Fidelity;


1.:. Ii
II
These duties are personal to the spouses and go into
their intimate relations, so that they must be performed ~ "tt
voluntarily by them. However, some consequences of such
duties are the following:
(a) The unfaithful spouse may be charged criminally
with adultery in the case of the wife or of ,. I
concubinage in the case of the husband. t.; ,

(b) Sexual infidelity and perversion are also grounds for f> "
legal separation in the Family Code, and so is 104'
Ilt. .....

repeated physical violence or grossly abusive conduct


directed against a spouse by the other, which shows
lack of love and respect for the former.
(c) Both spouses now administer the family property,
whether in the absolute community system or in the
system of conjugal partnership, and they also have
joint parental authority over their minor children,
both over their persons as well as their properties .
. (d) If one spouse commits acts which tend to bring
danger, dishonor, or injury to the other, the
aggrieved spouse may apply to the court for relief
(Art. 72).

Duty to Render Mutual Help and Support:

(1) The spouses are mutually bound to support each other.


118 Art. 69

(2) A spouse has the right to defend the life and honor
of the other spouse (Art. 11, Rev. Penal Code).
(3) A spouse cannot be examined for or against the other
without his or her consent, except in a civil case by
one against the other or in a criminal case for a crime
committed by one against the other (Sec. 20b, Rule
130, Rev. Rules of Court, otherwise known as "the
marriage privilege rule").
(4) A spouse cannot, during the marriage or afterwards,
be examined without the consent of the other as to
any communication received in confidence by one
from the other during the marriage (Sec. 21a, Rule
130, Rev. Rules of Court, otherwise known as "the
marital communication rule").
(5) The management of the household is the right and
/ duty of both spouses; either spouse may exercise any
~ V legitimate profession or activity without the consent
of the other; both spouses manage the absolute
community or conjugal property together; both
spouses exercise parental authority -over their
common children.

.... Art. 69. The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the
other if the latter should live abroad Or there are other valid
and compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with
the solidarity of the family. (110a)

Rule in the Civil Code:

Under Art. 110 of the Civil Code, it is the husband, as


head of the family, who has the right to fix the family
residence, and the court may exempt the wife from living
with the husband only if he should live abroad, unless he
does so in the service of the Republic, in which case the wife
should also join him abroad.
Art. 0 119

lule under the Abo-ye ArtidE

(1) Under the above Article of the Family Code, it is no


longer the sole prerogative of the husband to fix the
family domicile. It must be a joint -decision of the
spouses, and in case they disagree, the court shall .
decide.
(2) Once the matter is decided by the spouses or by the
court, the spouses already have the duty to live
together. The court, may, however, exempt one from
living with the other:
(a) if one of the spouses should live abroad, or
(b) there are other valid and compelling reasons for
the exemption.
The exemptions shall not, however, apply if the
same will not be compatible with the solidarity of the
family.
(3) The Family Code does not consider a spouse's living
abroad "in the service of the Republic" anymore as a
statutory reason to compel the wife to live with the
husband abroad. It is only one of the reasons that the
court may take into account in determining whether
the wife should join the husband or not. There may
be reasons that would justify the wife's staying in the
Philippines, like if the children are studying here, or
the weather is too cold abroad for her health.
(4) The court may likewise exempt the wife from living
with the husband even if the latter is just in the
Philippines, but assigned to a place far from the
family home. The Corrunittee decided not to mention
specific reasons that would justify the court in
exempting the wife from joining the husband; it
opted to use the words "other valid. and compelling
reasons" so as not to limit the discretion of the court
in deciding the matter.
(5) By way of exception, the court may not exempt the
wife from joining the husband if it would not be
120 Art. 70

compatible with the solidarity of the family".


(6) The above Article uses the term "family domicile"
instead of family residence because the spouses may
have multiple residences, and the wife may elect to
remain in one of such residences, which may destroy
the duty of the spouses to live together and its
corresponding benefits.
(7) Young people who are about to get married should
first discuss and agree on the matter of family
residence or domicile, especially if their places of
occupation are different, to avoid serious conflict on
this matter after the marriage.

Art. 70. The spouses are jointly responsible for the


support of the family. The expenses for such support and
other conjugal obligations shall be paid from the community
property and, in the absence thereof, from the income or
fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be
satisfied from their separate properties. (U1a)

Rule under the Civil Code:

Under Art. 111 of the Civil Code, the support of the


family is the husband's responsibility, and this is so because
he is the administrator of the conjugal partnership property,
which is principally for the family's support.

Rule Under the Above Article of the Family Code:

Under the above Article of the Family Code:


(1) The spouses are jointly responsible for the support of
the family. And this is so because they are now joint

*' *' I
.
administrators of the absolute community or conjugal
property.
(2) Such support shall be satisfied in the following order:
(a) First, from the community property or conjugal
property;
Ad. 71 snd Ad. 72 121

(b)Second, from the income or fruits of the separate


properties of the spouses;
(c) Third, from the separate properties of the /
spouses.
(3) In the third case, the spouses are, between
themselves, liable in proportion to their properties.
With respect to creditors, however, they are solidarily¥- ~
liable. .
Art. 71. The management of the household shall be the
right and duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions
of Article 70. (l1Sa)

(1) While under the Civil Code, the management of the


household is given to the wife in view of the popular
notion that "the wife is the queen of the home", the :
Family Code, under the above Article, now provides
that the management of the household is the right
and duty of both spouses, and the expenses for such
management shall be paid in accordance with the
rules of family support (Art. 70).
(2) The change in the rule introduced by the Family
Code answers the cry of Filipino women that they
should not be confined to stereotype roles, one of
which is the management of the household. They
would like the husbands also to share this
responsibility, like worrying about the high prices of
food items and other family necessities, "making both
ends meet", helping the wife with household chores if
the maid leaves or goes on vacation, taking care of
the baby at night especially if both spouses go to
office or work during the day, etc.

Arl 72. When one of the spouses neglects his or her


duties to the conjugal union or commits acts which tend to
bring danger, dishonor or injury to the other or the family,
the aggrieved party may apply to the court for relief. (116a)
122 Art. 73

(1) This article covers both cases of:


(a) either spouse neglecting his or her duties to the
conjugal union, or
(b) either spouse committing acts Which tend to
bring danger, dishonor, or injury to the other or
to the family.
(2) The injury contemplated by this Article is not
economic or financial, but physical, moral, emotional,
or psychological. Examples are:
(a) if the wife spends all her time at the casino or at
the mahjong table, neglecting the home and the
children;
(b) if the husband is having an affair with his
secretary; .
(c) if the husband keeps on drinking and then
beating his wife when he comes home.
(d) if the wife refuses to live with her husband
without justifiable reason.
(3) The court may admonish or issue an injunction order
to the guilty spouse and even threaten him or her
with contemptof court if he or she refuses to heed
the court order.
But the court, under pain of contempt, cannot
compel the wife to live with or return to the
husband. (Arroyo v. Vasquez de Arroyo, supra)

Art. 73. Either spouse may exercise any legitimate


profession, occupation, business. or activity without the
consent of the other. The latter may object only on valid,
serious, and moral grounds.
In case of disagreement the court shall decide whether
or not
(1) The objection is proper; and
(2) Benefit has accrued to the fam lly prior to the
objection or thereafter. If the benefit accrued prior
to the objection, the resulting obligation shall be
enforced against the community property. If benefit
A.d. 73 In
accrued thereafte.r such obligation Ihall be enforced
against the separate property of the apouse who has
not obtained consent.
The foregoing provisions shall not prejudice
the rights of creditors who acted in good faith.
(117a)

There was an omission in Art. 73 when the Code was


printed. As approved by the Committee (Meeting of
November 8, 1968), par. (2) of the second paragraph of this
Article should read:
"(2) Benefit has accrued to the family prior to the
objection or thereafter. If the benefit accrued prior to the
Objection, the resulting Obligation shall be enforced against the
community property. If benefit accrued thereafter, such
obligation shall be enforced against the separate property of
the spouse who has not obtained consent."

Rule Under the Civil Cod_e:

Under Art. 117 of the Civil Code, it is only the husband


who may object to the wife's exercising a profession or
occupation or engaging in business, on the following grounds,.
which must concur:
(1) His income is sufficient for the family, according to
its social standing;
(2) His objection is founded on serious and valid
grounds.

In case of disagreement between the spouses:


(1) The parents and grandparents as well as the family
council, if any; shall be consulted.
(2) If no agreement is still arrived at, the court shall
decide.
Rule Under the Above Article of the Farney Code;

(1) Right to object is mutual.


121
Alt. 73

Women have been complaining why their husbands


should. be allowed to. object to their exercising any legitimate
profession or occupation, or going into business or performing
any other legitimate act or activity, like going abroad without
the previous consent of the husband. They complain that they
cannot even open charge accounts in department stores
without the consent of their husbands. ,
Now, under the Family Code, the women have no more
cause to complain, since the right to object is already mutual,
and if there is no objection from either spouse, the other may
go ahead and do or perform the ad or activity he or she is
contemplating of doing, which is presumed to be in the
interest and for the benefit of the family or for his or her
personal advancement and improvement, which will
ultimately redound to the benefit of the family.
(2) The profession, occupation, business, or activity of either
spouse must be legitimate: that is, lawful, honest, moral.
An act may be lawful but immoral like all kinds of
gambling.
(3) In case of disagreement:
(a) Only the court will decide, since the Family Code
has abolished the family council. The reasons given
by Justice J.B.L. Reyes, Chairman of the Committee
that drafted the Family Lode, for the abolition of the
family council are as follows:
"In the case of the family council supposed to be
composed of relatives of husband and wife, it was
found out that the family council, instead of solving
problems, created new ones, because in view of
family affection and loyalty that prevail in our
country, the family council usually split into factions
so that no solutions could be obtained. So the
Committee opted for solutions through the coux:s."
Besides the Committee observed that records and experience
show that, very few family councils have been constituted
under the Civil Code.
Art. 73 125

(b) When the disagreement is referred to the court, it


will determine:
j. (i) Whether the objection is proper:
Examples of proper objections: Exposure of the
wife to immorality or dangers to her honor and
reputation; long separation of the spouses may result
in incompatibility with duties of wife to her family .....
and children.
7_. (ii) Whether benefit has accrued to the family prior
to the objection or thereafter.

(4) Is the absolute community Or the conjugal partnership


liable for the acts Or transactions of the spouse who
acted without the consent, or notwithstanding the
objection of the other?
(a) If benefit has accrued to the family prior to the
objection, the absolute community or conjugal ~ II
partnership is liable for the obligations incurred since
t1
all the profits or income from the acts or transactions
of the spouse who acted without the consent of the
other become part of the absolute community or
conjugal properties.
.-,..-,
co,'

(b) If profits accrued after the objection, the resulting


1,1
Obligations of the spouse who acted without the
consent of the other shall be enforced only against
his or her separa te properties.
(c) Creditors who acted in good faith (i.e., without J'

knowledge of the objection) are, however, protected


and will not be prejudiced in their rights. Thus, they
may go after the absolute community or conjugal
properties or the separate properties of the spouse illl
with whom they contracted.
(See Minutes of Committee meeting on November 8,
1986)