reside, except in a marriage where no

THE FAMILY CODE OF THE PHILIPPINES license is required in accordance with

EXECUTIVE ORDER NO. 209 Chapter 2 of this Title

ARTICLE 1: Marriage is a special contract of Article 27. In case either or both of the contracting
permanent union between a man and a woman entered parties are at the point of death, the marriage may be
into in accordance with the law for the establishment solemnized without necessity of a marriage license and
of conjugal and family life. It is the foundation of the shall remain valid even if the ailing party subsequently
family and an inviolable social institution whose survives. (72a)
nature, consequences, and incidents are governed by
law and not subject to stipulation, except that
marriage settlements may fix the property relations
during the marriage within the limits provided by this Article 28. If the residence of either party is so located
Code. (52a) that there is no means of transportation to enable
such party to appear personally before the local civil
registrar, the marriage may be solemnized without
NATURE AND IMPORTANCE OF MARRIAGE. necessity of a marriage license. (72a)
 purpose of procreation,
 purpose of mutual help and protection Article 29. In the cases provided for in the two
physically, morally and materially preceding articles, the solemnizing officer shall state
 basic civil rights of man in an affidavit executed before the local civil registrar
 or any other person legally authorized to administer
oaths that the marriage was performed in articulo
mortis or that the residence of either party,
Reynolds v. US, 98 US 145, 25 L. Ed. 144 specifying the barrio or barangay, is so located that
Marriage, while from its very nature a sacred there is no means of transportation to enable such
obligation, is nevertheless, in most civilized nations, a party to appear personally before the local civil
civil contract, and usually regulated by law. Upon it registrar and that the officer took the necessary steps
society may be said to be built, and out of its fruits to ascertain the ages and relationship of the
spring social relations and social obligations and contracting parties and the absence of a legal
duties, with which government is necessarily required impediment to the marriage. (72a)
to deal
Article 30. The original of the affidavit required in the
last preceding article, together with a legible copy of
MARRIAGE CONTRACT
the marriage contract, shall be sent by the person
Marriage is not at most a civil contract but
solemnizing the marriage to the local civil registrar of
it is at least a civil contract, with status and the the municipality where it was performed within the
interest of the State added to it. period of thirty days after the performance of the
marriage. (73a)
Marital relation
 basis of the social organization. The preservation of
DIRECTORY REQUIREMENTS
that relation is deemed essential to public welfare
Duty of a solemnizing officer is merely directory in
character and non-observance will not render the
marriage void
Chapter 2 MARRIAGES EXEMPT FROM
LICENSE REQUIREMENT Failure to comply with the provision of Marriage
 Articles 27, 28, 31, 32, 33 and 34 are situations exemption requirements:
where the contracting parties need not obtain a Shall be punished by imprisonment for not less than
marriage license prior to getting validly one month nor more than two years, or by a fi ne of not
married. These situations are explicitly less than three hundred pesos nor more than two
declared by Article 3(2) as exceptions to the thousand pesos, or both, in the discretion of the court
formal requirement of a valid marriage license. according to Marriage Law of 1929.

 These exceptions are likewise referred to in

Article 9, which provides that a “marriage
license shall be issued by the local civil
registrar of the city or municipality where
either of the contracting parties habitually
Article 31. A marriage in articulo mortis between
passengers or crew members may also be solemnized
by a ship captain or by an airplane pilot not only
while the ship is at sea or the plane is in flight, but also
during stopovers at ports of call. (74a)

CLAUDIA LAPAZ 1
 military operation, the contracting
Article 32. A military commander of a unit, who is a parties may either be members of
commissioned officer, shall likewise have authority to the armed forces or civilians.
solemnize marriages in articulo mortis between
persons within the zone of military operation, whether
members of the armed forces or civilians. (74a)
BIGAMY
Article 33. Marriages among Muslims or among
 Penalize under RA 349 and 350 of the RPC.
members of the ethnic cultural communities may be
 Sections 37 to 45 of the Marriage Law of
performed validly without the necessity of a marriage
1929 (Act No. 3631) providing for the
license, provided they are solemnized in accordance
criminal penalties for erring persons who
with their customs, rites or practices. (78a)
are authorized to solemnize a marriage are
the only remaining provisions in the said
law which have not been repealed by any
REASON FOR THE EXEMPTION FROM MARRIAGE law, including the Family Code.
LICENSE:
MAIL-ORDER BRIDE
 Articulo mortis
 marriages in remote places
PROHIBITED:
 recognition of the customs and practices of
Muslims and ethnic minorities
 establish or carry on a for purpose of
 validate or legitimize illicit cohabitation
matching of Filipino women for marriage to
between persons who do not suffer any
foreign nationals either on a mail-order basis
legal impediment to marry
or through personal introduction;

 To advertise, publish, print or distribute or

cause the advertisement, publication,
MARRIAGE UNDER ARTICULO MORTIS printing, or distribution of any brochure, flier,
or any propaganda material calculated to
 All those who are authorized under Article 7 promote the prohibited acts in the preceding
and mayor: subparagraph;
o Act as a solemnizer if either of the
contracting parties are at the point of  Attract Filipino woman to join a club or
death.
association to women for marriage to foreign
nationals whether on a mail-order basis or
 CHIEF PILOT AND SHIP CAPTAINS:
o May solemnize while the plane is in through personal introduction for a fee;
flight, ship at sea and even during
stopovers at ports of call.  To use the postal service; (Republic Act No.
o They can solemnize marriages only 6955, Section 2, June 13, 1990).
among their passengers and crew
members. TRAFFICKING IN WOMEN
Section 24, (c), RA 9208(Anti Trafficking in
 MILITARY COMMANDER REQUISITES Persons Act of 2003), states to offer or contract
o he or she must be a commissioned marriage, real or simulated, for the purpose of
officer acquiring, buying, offering, selling, or trading
o his or her rank should start from a them to engage in prostitution, pornography,
second lieutenant, ensign and above sexual exploitation, forced labor or slavery,
o likewise be a commander of a unit involuntary servitude or debt bondage.
o Also he or she can only solemnize a
marriage if it is in articulo mortis and MARRIAGE BETWEEN RAPIST AND RAPED
in the absence of a chaplain. VICTIM
Under Article 266-C of the Revised Penal Code, as
o Solemnized within the zone of amended by Republic Act No. 8353:
military operation and during such

CLAUDIA LAPAZ 2
GENERAL RULE: As a special contract, a The right to enter into a marriage has also been
subsequent valid marriage of the offender and the regarded as within the ambit of the constitutional
offended party in the crime of rape likewise right of association. And, once married, a couple
extinguishes the criminal action or the penalty has a right to privacy which is protected against
imposed for rape. all undue and unwarranted government
intrusion.
EXN: The crime shall not be extinguished or the
penalty shall not be abated if the marriage is void ABSOLUTE DIVORCE
ab initio While it is fundamental that marriage must be
protected, it is likewise to be acknowledged that
there may be certain cases where the parties
MARRIAGE AS A STATUS might have undergone a marriage ceremony to
Marriage creates a social status or relation bind themselves together but, subsequently, no
between the contracting parties State v. Tatty, 7 functional marital life would exist. Hence, there is
LEA 50; Greek vs. State, 58 Ala. 190). no marriage to preserve at all.

Will be an agreement of considering a civil LEGISLATOR

marriage non-binding until after a religious  Has the plenary power to decide what sort
ceremony valid? of situations allowing absolute divorce may
No. According to the court, that status is too be recognized within the limits allowed by
much a matter of public concern to allow the the Constitution.
parties to tinker with it according to their own
notions of what is expedient and proper.
(Anonymous v. Anonymous, 49 NYSd 314)
Does a company’s policy disqualified from work
MARRIAGE IN INTERNATIONAL LAW any woman worker who contracts marriage
The right to marry is a recognized fundamental allowed?
human right under international law. No, the Supreme Court invalidated such policy as
it not only runs afoul of the constitutional
 Article 16 of Universal Declaration of Human provision on equal protection.
Rights:
 men and women of full age, without
any limitation due to race,
nationality or religion, have the right
to marry and “to found a family.”
 Entered in free and full consent of
the parties.
 Family is a natural and Article 34. No license shall be necessary for the
fundamental group unit of society marriage of a man and a woman who have lived
and entitle for protection by society together as husband and wife for at least five
and the state. years and without any legal impediment to marry
each other. The contracting parties shall state the
CONSTITUTIONAL PROTECTION foregoing facts in an affidavit before any person
Section 12, Article II of the 1987 Constitution authorized by law to administer oaths. The
provides that the State recognizes the sanctity of solemnizing officer shall also state under oath
family life and shall protect and strengthen the that he ascertained the qualifications of the
family as a basic social institution” contracting parties and found no legal
impediment to the marriage. (76a)
Marriage is a relationship of the highest
importance.

COHABITATION FOR FIVE YEARS

Is right to marriage valid ELEMENTS:
 Live for 5 years continuous and unbroken

CLAUDIA LAPAZ 3
 No legal impediment
o Must refer only to the time of the actual VOID MARRIAGES.
marriage celebration. GEN. RULE: absence of any of the essential or
o The parties must be without legal formal requirements for a valid marriage as
impediment only at the time of the provided for in Articles 2 and 3 makes a marriage
marriage ceremony and not during all void. (Article 4 of the FC)
those previous five (5) years.
o The five-year period is not among the said EXN: Articles 27, 28, 31, 32, 33, 34 and 35(2). In
essential and formal requirements addition, Articles 35, 36, 37, 38, 40, 41, 44, and
53 in relation to Article 52 of the Family Code
Legal impediment: enumerate marriages which are void.
 Any possible ground or basis such:
o non-age VOID AND VOIDABLE MARRIAGE.
o status of being already married VOID VOIDABLE
Annullable Void ab initio
Valid until Never to have
Failure of solemnizing officer to investigate other declared taken place
Shall not invalidate the marriage. by court. and cannot be
a source of
TOPIC: Absence of marriage license with no right
cohabitation for 5 years Can be Cannot be
Republic v. Dayot, G.R. No. 175581, March 28, assailed only assailed except
2008, 550 SCRA 435 in lifetime in direct
The falsity of the affidavit cannot be considered to proceedings.
be a mere irregularity considering that the 5-year Cannot be
period is a substantial requirement of the law to question even
be exempted from obtaining a marriage license. after the death
of either party.
Offspring will
be left as if the
Chapter 3 marriage had
VOID AND VOIDABLE MARRIAGES been perfectly
valid.
Article 35. The following marriages shall be void Only those any other
from the beginning: designated by party may
1) Those contracted by any party below eighteen law, parent attack the
years of age even with the consent of parents or and guardian marriage
guardians; may assail the
2) Those solemnized by any person not legally marriage
authorized to perform marriages unless such prescribe imprescriptible
marriages were contracted with either or both (authorize)
parties believing in good faith that the conjugal no legal effects
solemnizing officer had the legal authority to do partnership except those
so; (or absolute declared by
3) Those solemnized without a license, except community) law concerning
those covered by the preceding Chapter; and the the properties,
4) Those bigamous or polygamous marriages not children co-ownership
falling under Article 41; conceived conjugal
5) Those contracted through mistake of one before its property, and
contracting party as to the identity of the other; annulment its effect on
and are legitimate the children
6) Those subsequent marriages that are void Ninal v. born to such
under Article 53. void marriages

CLAUDIA LAPAZ 4
 Bayadog, 328 as provided in 1) has a well-founded belief that his
SCRA 122; Article or her spouse is dead;
matters 50 in relation 2) Procures a judicial declaration of
to Articles 43 presumptive death; and
and 44 as well 3) At the time of the subsequent
as Articles 51, marriage ceremony, is in good faith
53 and 54 of together with the subsequent spouse;
the Family otherwise, the subsequent marriage shall
Code. be considered void in accordance with
Article 44.

TOPIC: cohabitated for 2 years and had DOCTRINE OF UNCLEAN HANDS

presented a sworn statement that they had  Is an equitable defense in which the
cohabitated for 5 years. defendant argues that the plaintiff is not
entitled to obtain an equitable remedy
De Castro v. Assidao-De Castro, G.R. No. because the plaintiff is acting unethically
160172, February 13, 2008 or has acted in bad faith with respect to the
Absence of a marriage license as the infirmity in subject of the complaint—that is, with
the marriage cannot be cured by their "unclean hands"
misrepresentation in their sworn statement or
affidavit and neither could they be estopped by BAD FAITH AS AFFECTING PROPERTY
such misrepresentation DISPOSITION.
GENERAL RULE: As a general rule, in a void
marriage, the property regime is one of co-
ownership. In the disposition of the coownership
RULE AGAINST SPLITTING CAUSES OF at the time of liquidation, whether or not one of
ACTION the parties is in bad faith is a basic consideration.
 The rule against splitting causes of action
requires litigants to bring all their claims EXAMPLE: Only one of the party is in good faith,
arising out of the same transactional share of the party in bad faith in the co-ownership
nucleus of facts in the same civil action. shall be forfeited in favor of their common
Itis an equitable rule and a subsidiary of children.
the doctrine of res judicata.
De Castro v. Assidao-De Castro, G.R. No. 160172,
February 13, 2008, 545 SCRA 162,
BAD FAITH OR GOOD FAITH IN VOID The Supreme Court ruled that while the case was
MARRIAGES. one of support, the lower court can make a
GENERAL RULE: As a general rule, good faith and declaration that the marriage was void to
bad faith are immaterial in determining whether determine the rights of the child to be supported
or not a marriage is null and void

EXN: 3 cases where a direct attack, not a collateral

 Article 35(2) states that if either of the
contracting parties is in good faith in
believing that a solemnizing officer has
authority to solemnize a marriage though
he or she actually has none, the marriage
will be considered valid.
attack, on the nullity of a marriage must first be
undertaken
It is a suit precisely fi led to assail the validity of
a marriage or to assert the nullity of a marriage
for the court to issue the proper judicial
declaration.

 Article 41 referring to a person whose Direct attack - means fi ling a case precisely
spouse disappears for four years or two putting forth as principal issue the nullity of the
years, in the proper cases, the present marriage.
spouse may validly marry again if he or
she:

CLAUDIA LAPAZ 5
In a direct attack, only the husband or the wife The term “” is applied to a matrimonial union
can fi le a case for declaration of nullity. which has been solemnized in due form and good
faith on the part of one or of both of the parties
3 cases: but which by reason of some legal infirmity is
 Remarriage on the basis solely of a final either void or voidable. The essential basis of such
judgment declaring such marriage void marriage is the belief that it is valid.
 to determination of heirship, legitimacy or
illegitimacy of the child, settlement of UNAUTHORIZE SOLEMNIZING OFFICER:
estate, dissolution of property regime, or a IGNORANCE OF THE LAW. NOT VALID
criminal case donor desires SITUATION: If the contracting parties go before a
 to revoke a donation propter nuptias (in person not specifically mentioned by law as
consideration of marriage) given to one or having any authority to solemnize a marriage..
both of the married couple.
 The existence of a valid judicial It is invalid: Good faith or bad faith is immaterial
declaration of nullity will give the because they cannot be excused from being
donor the cause of action to revoke ignorant of the persons authorized by law to
the donation (Article 86[1]) or to solemnize marriage.
consider the donation as revoked by
operation of law (Article 50 in NO MARRIAGE LICENSE.
relation to Article 43[3]), as the case EXEMPTIONS: Articles 27, 28, 29, 30, 31, 32, 33,
may be and 34 of the Family Code.

BELOW EIGHTEEN YEARS OF AGE. BIGAMOUS OR POLYGAMOUS MARRIAGE

The consent of the parents is immaterial in the GENERAL RULE: law prohibits a married man or
sense that, even if present, it will not make the woman from contracting another bond of union as
marriage valid. Neither can subsequent parental long as the consort is alive
consent ratify such a void marriage.
PROVIDED THAT: the 1st marriage should be
valid.
EXEMPTION of GOOD FAITH MARRIAGE
GENERAL RULE: is that there should be marriage EXEMPTION: those allowed under special laws
and, therefore, the good faith of the parties should such as the Muslim Code or under Article
come to their rescue. According to Justice Puno. 41 of the Family Code.

REASON: This is to prevent unscrupulous Application:

chauvinistic males from deceiving the girls,  Marriage contracted in Hongkong, by a
because they were made to believe that they are husband who had secured a void Nevada
going to be married when marriage is not what divorce, is bigamous and void.
they want.
 To declare the 1st marriage completely void,
Considered as valid: If the marriage were must had a judicial declaration of nullity
contracted with either or both parties believing in because it violates Article 40 in relation to
good faith that the solemnizing officer had the Articles 52 and 53 of the Family Code.
legal authority to do so when in fact he or she has
none, ARTICLE 40: Judicial declaration of nullity must
first be obtained before any of the contracting
NOT: REFERS ONLY TO Only one formal requisite parties is to remarry and, in accordance with
authority of the solemnizing officer, and not to Article 52, such judicial declaration of nullity
any other requisite, whether essential or formal. must be recorded with the local civil registrar also
before any subsequent marriage. Non-observance
of Article 40 in relation to Article 52 shall make
TOPIC: PUTATIVE MARRAIGE the subsequent marriage void pursuant to the
Estate of Foz, 109 Cal. App. 2d 329 express provision of Article 53.

CLAUDIA LAPAZ 6
MISTAKE IN IDENTITY.
 Makes the marriage annullable.
This ground goes into the very essentials of a valid
marriage as there is complete absence of consent,
thereby rendering the marriage void ab initio.
 Other form of psychoses, like a party being
of unsound mind or concealment of drug
addiction, habitual alcoholism,
homosexuality or lesbianism, merely
render the marriage contract voidable
pursuant to Article 46, Family Code.

NOTE: The other party must absolutely did not GROUND FOR LEGAL SEPARATION:
want to marry the other party.  Drug addiction
 Habitual alcoholism
DOES NOT INCLUDE:  lesbianism or homosexuality
 mistake in the name  should occur only during the marriage
 character of the person, or in his or her under Article 55 of the Family Code
attributes, Determination is left solely with the courts on a
 his or her age, religion, social standing, case-to-case basis.
pedigree, pecuniary means,
 temperaments, acquirements, condition in CHARACTERISTIC:
life, or previous habits 1. Gravity,
2. Juridical antecedence
VOID UNDER ARTICLE 53 3. Incurability

REQUIREMENTS: Republic v. Dagdag, G.R. No. 109975, February 9,

 liquidation, partition and distribution of 2001)
their properties, if any, and, only in proper Determination of psychological incapacity
cases “depends on the facts of the case. Each case must
 delivery of the children’s presumptive be judged, not on the basis of a priori
legitimes; assumptions, predilections or generalizations but
 decree of annulment or nullity according to its own facts”
 should be recorded in the appropriate civil
registry and the registries of property.
Absence of definition of psychological incapacity
Non-compliance with these requirements will - Intentionally made because the situations
render any subsequent marriage void. contemplated by the law vary from one case
to another.
- Justice Caguioa states that a code should not
Article 36. A marriage contracted by any party have so many definitions, because a
who, at the time of the celebration, was definition straight-jackets the concept and,
psychologically incapacitated to comply with therefore, many cases that should go under it
the essential marital obligations of marriage, are excluded by the definition. That’s why we
shall likewise be void even if such incapacity leave it up to the court to determine the
becomes manifest only after its solemnization. (n) meaning of psychological incapacity.
(As amended by Executive Order Number 227
dated
July 17, 1987)
Canon law 1095 – there is no voidable marriage.
PSYCHOLOGICAL INCAPACITY or MENTAL “Canon 1095. They are incapable of contracting
INCAPACITY marriage:
 Failure or disregard to comply with his 1. who lack sufficient use of reason;
and/or her essential marital obligations. 2. who suffer from a grave defect of discretion of
 This psychologic condition must exist at judgment concerning essential matrimonial rights
the time the marriage is celebrated. and duties, to be given and accepted mutually;
Art. 36
GROUND FOR ANNULMENT:

CLAUDIA LAPAZ 7
3. who for causes of psychological nature are
unable to assume the essential obligations of PSYCHOLOGICAL EXPERTS:
marriage.’’ The professional opinion of a psychological expert
became increasingly important in such cases.
CONSTITUTIONAL CONSIDERATION. Data about the person’s entire life, both before
Article 36 do not further the initiatives of the State and after the ceremony, were presented to these
concerning marriage and family, as they experts and they were asked to give professional
promote wedlock among persons who, for opinions about a party’s mental capacity at the
reasons independent of their will, are not time of the wedding.
capacitated to understand or comply with the
essential obligations of marriage. The personal medical or psychological
examination of respondent is not a requirement
for a declaration of psychological incapacity
PROVING PSYCHOLOGICAL INCAPACITY.
 Impotency However, the Court may or may not accept the
 Non-age (below 18 years old) testimony of the psychologist or psychiatrist
 physical violence, because the decision must be based on the
totality of the evidence
NOTE: separation or abandonment alone is not
conclusive proof of psychological incapacity The mere fact therefore that a psychiatrist
personally examined the subject person is not an
PSYCHOLOGICAL INCAPACITY assurance that his or her findings would be
sustained.
 is psychosomatic and deals with a state of
mind and thus, can only be proven by 6 elements necessary for mature marital
indicators or external manifestations of the relationship
person claimed to be psychologically 1. A permanent and faithful commitment to the
incapacitated. marriage partner;
 Gross irresponsibility and utter disregard 2. Openness to children and partner;
toward family life as manifested by his or her 3. Stability;
actions must be taken into consideration. 4. Emotional maturity;
 For Foreigner spouse, it is still valid as norms 5. Financial responsibility
used for determining psychological incapacity 6. An ability to cope with the ordinary stresses
should apply to any person regardless of and strains of marriage, etc.
nationality.”
 dependent personality disorder
 narcissistic LIFTED FROM CANON LAW
 anti-social personality disorder, The decisions of the Catholic tribunal on this
 Mixed personality disorder from self-defeating matter, therefore, are greatly helpful and as a
personality disorder to dependent personality matter of fact persuasive. Also the
disorder.” interpretation of Catholic Canon Law is very
 Nymphomaniac helpful.

Topic: ESSENTIAL MARITAL OBLIGATIONS

Chi Ming Tsoi v. Court of Appeals,
78 SCAD 57, 266 SCRA 324
Procreate children based on the universal
principle that procreation of children through
sexual cooperation is the basic end of marriage.
Constant non-fulfillment of this obligation will
finally destroy the integrity or wholeness of the Anne, another rotal judge, had likewise treated
marriage
INCAPACITY AS AN AUTONOMOUS GROUND.
Nymphomaniacs usually understand the
meaning of marriage, and they are usually able to
evaluate its implications. They would have no
difficulty with positing a free and intelligent
consent according to Sabattani.
the difference between the act of consenting and
the act of positing the object of consent from the

CLAUDIA LAPAZ 8
point of view of a person afflicted with
nymphomania. According to him, such an
affliction usually leaves the process.

INCAPACITY AS INCAPACITY TO POSIT THE

OBJECT OF CONSENT.
The decision concludes that a person in such a
condition is incapable of assuming the conjugal
obligation of fidelity, although she may have no
difficulty in understanding what the obligations of
marriage are, nor in the weighing and evaluating
of those same obligations.

CLAUDIA LAPAZ 9