FAMILY CODE OF THE PHILIPPINES – ARTS.

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HISTORY OF THE FAMILY CODE

 Executive Order No. 209, signed by President Corazon C. Aquino
 Took effect on August 3, 1988
 Republic Act No. 6809 was passed by Congress on October 20, 1989 and approved by
President Aquino. It took effect on December 18, 1989, amending Title X of the Family
Code dealing with emancipation and the age of majority

ARTICLE 1 – NATURE AND IMPORTANCE OF MARRIAGE

 Marriage is a special contract of permanent union between a man and a woman
entered into in accordance with the law for the establishment of conjugal and family
life. It is the foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this Code. (22a)
 Marriage is one of the “basic civil rights of man,” fundamental to our very existence and
survival
 The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men
 Marriage is at least a civil contract, and as a special contract, it cannot be restricted by
discriminatory policies of private individuals or corporations
 Mail-order Bride – it is unlawful for the manage or officer-in-charge or advertising
manager of any newspaper, magazine, television or radio station, or other media, or of an
advertising agency, print, company or other similar entities, to knowingly allow, or
consent, to the match Filipino women to foreign nationals either on a mail-order basis or
personal introduction
 Trafficking in Women
o Section 4, Republic Act 9208, Anti Trafficking in Persons Act of 2003
o To introduce or match for money, profit or material, economic or other
consideration, any Filipino woman to a foreign national for the purpose of
acquiring, buying, offering, selling or trading him/her to engage in
prostitution, pornography, sexual exploitation, forced labor, slavery,
involuntary servitude of debt bondage
o To offer or contract marriage for the same purpose mentioned in the preceding
paragraph
 Marriage between Rapist and Raped Victim
o Valid marriage between the offender and the offended party extinguishes the
criminal action or penalty imposed for rape
 o If the victim is already married and the offender is the legal husband, the
subsequent forgiveness of the victim shall extinguish the criminal action or
penalty, provided the crime shall not be extinguished or the penalty shall not be
abated if the marriage is void ab initio
 Marriage as a Status
o A judicial decree on the marriage status of a person necessarily reflects upon the
status of another and the relation between them
o If parties, prior to the civil marriage ceremony, agreed that the said civil
marriage was not to be considered valid and binding until after the
celebration of a religious marriage ceremony, the court held that the non-
fulfillment of the said condition cannot be grounds for annulment
(Anonymous v. Anonymous)
 Marriage in International Law
o The right to marry is a recognized fundamental human right under international
law
o Marriage shall be entered into only with the free and full consent of the intending
parties
o The institution of marriage is universally regarded as fundamentally important
deserving the full protection of all states of whatever ideology or political
persuasions
 Constitutional Protection
o Section 2, Article II of the 1987 Constitution – The State recognizes the sanctity
of family life and shall protect and strengthen the family as a basic social
institution
o To highlight the importance of the family and of marriage, the Constitution
further provides a separate Article 15 exclusively dealing with the family
o The constitutional provisions on marriage do not imply that legislature cannot
enact a law allowing absolute divorce
 Legislative Control of Marriage
o There are three parties to every civil marriage: two willing spouses and an
approving State
o The State is concerned with the validity of marriage, sustainability and
maintenance of a harmonious and healthy family life brought about by such
marriage
o It is a generally accepted doctrine that the legislature may impose such restrictions
upon marital relation as the laws of God and the laws of propriety and morality
and social order demand, provided, such regulations are not prohibitory (State v.
Walker)
o Legislative regulation of marriage must not contravene the mandates of the
Constitution
o By legislation, marriage can be made a statutory basis for limiting one’s capacity
to act or for affecting one’s right to acquire property
 o Article 874 of the Civil Code – an absolute condition not to contract a first or
subsequent marriage made in a last will and testament on an instituted voluntary
heir, legatee or devisee shall be considered as not written unless such condition
has been imposed by the widow or widower by the deceased spouse, or by the
latter’s ascendants or descendants
 Property Relations
o Marriage settlements must be within the limits provided by the Family Code
o Article 107 in relation to Article 88 – the persons who intend to marry can
stipulate in their marriage settlement that the property regime that will govern
their marriage shall be the conjugal partnership property agreement only at the
precise moment that the marriage was celebrated
o Article 77 of the Family Code – the marriage settlement and any modification
thereof shall be in writing, signed by the parties and executed before the
celebration of the marriage
o Any modification after the marriage must be approved by the courts and must be
made in accordance in the instances provided for in Article 76
 Law Governing Validity of Marriage
o The principle that the validity of a marriage is determined by the law effective at
the time of the celebration of the marriage is highlighted by the fact that, as a
general rule, the nature of the marriage already celebrated cannot be changed by a
subsequent amendment to the law
o “Mistake in identity”
 An instance of fraud which constituted a ground to make a marriage
annullable under the Civil Code
 Grounds to declare a marriage void from the beginning
o An express validation or invalidation provision is important because any
ambiguity or doubt in the law should follow the general rule that marriages are
governed by the law enforced at the time of their celebration and any
interpretations of the law must always be made upholding the validity of a
marriage
o Void marriages can never be ratified
o Article 39 of the Family Code in relation to Article 36 – a marriage is void if
either or both of the contracting spouses are psychologically incapacitated to
perform the essential marital obligation
 Republic Act 8533 amended Article 39 by deleting the prescriptive period
of 10 years
ARTICLES 2 TO 6 – LEGAL CAPACITY, REQUISITES AND MARRIAGE
CEREMONY
 Article 2 – No marriage shall be valid, unless these essential requisites are present:
o Legal capacity of the contracting parties who must be a male and a female;
and
 o Consent freely given in the presence of the solemnizing officer. (53a)
 Article 3 – The formal requisites of marriage are:
o Authority of the solemnizing officer;
o A valid marriage license except in the cases provided for in Chapter 2 of this
Title; and
o A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age. (53a, 55a)
 Article 4 – The absence of any of the essential or formal requisites shall render the
marriage void ab initio, excepted as stated in Article 35(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 parties responsible for the irregularity shall be civilly, criminally
and administratively liable. (n)
 Article 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)
 Article 6 – No prescribed form or religious rite for the solemnization of the
marriage is required. It shall be necessary, however, for the contracting parties to
appear personally before the solemnizing officer and declare in the presence of not
less than two witnesses of legal age that they take each other as husband and wife.
This declaration shall be contained in the marriage certificate which shall be signed
by the contracting parties and their witnesses and attested by the solemnizing
officer.
 In case of a marriage in articulo mortis, when the party at the point of death is
unable to sign the marriage certificate, it shall be sufficient for one of the witnesses
to the marriage to write the name of said party, which fact shall be attested by the
solemnizing officer. (55a)
 Legal Capacity
o The marrying age is 18 years old and above (also known as age of majority)
o Void marriages include incestuous marriages, marriages for reasons of public
policy.
o An already married person cannot marry again unless their previous marriage has
been nullified or annulled or their case falls under the “valid bigamous marriage”
 Contracting parties must be of different sex
o Explicitly provides that marriage is a special contract of permanent union
between a man and a woman
 Effect of sex-change
 o A man or a woman should be considered as their preferred gender identity at the
time of the marriage when the parties themselves assert their own gender
identities.
o Supreme Court held that the sex determined by visually looking at the genitals of
a baby at the time of birth is immutable and that there is no law legally
recognizing sex reassignment (Silverio v. Republic)
o In cases of individuals with Congenital Adrenal Hyperplasia (CAH), the Supreme
Court considered the person as an “intersex individual” and granted the
preference of the person to be considered their preferred gender (Republic v.
Cagandahan)
 Consent
o Requirements of consent:
 Freely given
 The same must be made in the presence of the solemnizing officer
o The total absence of consent makes the marriage void ab initio
o Free consent connotes that the contracting parties willingly and deliberately
entered into he marriage, that they were capable of intelligent understanding the
nature and consequences of the act
o The free consent must be given in the presence of the solemnizing officer “in
order that it may have due publication, before a third person or persons, for the
sake of notoriety and the certainty of its being made” (Dyer v. Brannock)
 Authority of the Solemnizing Officer
o Enumerated in Article 7 of the Family Code
o The presence or absence of the authority of the solemnizing officer constitutes the
formal requirement
o Under the Local Government Code, the mayor of a city or municipality is
empowered to solemnize a marriage
o The solemnizing officer is not duty bound to investigate whether or not a
marriage license has been duly and regularly issued by the local civil registrar
o The solemnizing officer must undertake the necessary steps to ascertain the ages
and relationship of the contracting parties and the absence of legal impediment to
marry, in case one of them is at the point of death or there is no means of
transportation to reach the local civil registrar
o The solemnizing officer is duty bound to ascertain the qualifications of
contracting parties living together for at least five years without the benefit of
marriage
o Criminal penalties are imposable against a person who solemnizes a marriage
without authority
o Criminal liability attaches to any person who, not being authorized to solemnize
marriage, shall publicly advertise himself as authorized to solemnize marriage
 Valid marriage license
 o A valid marriage license must be issued by the local civil registrar of the place
where the marriage application was filed
 Only has a lifetime of 120 days from the date of issue and effective in any
part of the Philippines
 The date of issue is the date of the signing of the marriage license by the
local civil registrar
o A marriage license is not effective if it will be used as the marriage license to be
able to solemnize marriage abroad
o If the marriage license is issued in a place wherein the contracting parties do not
reside and a marriage is performed on the basis of such marriage license, such
marriage is still valid (People v. Janssen)
o If the marriage license is issued in a place wherein the contracting parties do not
reside and a marriage is performed on the basis of such marriage license, such
marriage is still valid (People v. Janssen)
o Considerations for marriage license to be still valid:
 False representation of his or her age to avoid statutory requirement of
parental consent
 Non-disclosure of prior marriage and divorce in the application as required
by statute
 Falsely stating that he or she had not been previously married
 Falsely swearing he or she is not under guardianship
 Forgery of his or her mother’s consent to marry
o If the contracting parties are of the same sex, the marriage license is void
 Marriage Ceremony
o The Family Code only recognizes ceremonial marriages (solemnized by persons
duly authorized by the state)
o Minimum requirement imposed by law is that the contracting parties appear
personally before the solemnizing officer and declare that they take each other as
husband and wife in the presence of at least two witnesses of legal age
o Declaration of consent need not be vocally expressed
o Marriage is valid if a man and a woman appeared before a justice of peace and
signed a statement setting forth that they had agreed to marry each other and
asked the justice of peace to solemnize the marriage
o Marriage certificate is not an essential or formal requirement of marriage
 Witnesses in a Marriage Ceremony
o There must be no less than two witnesses of legal age in attendance
o The absence of the two witnesses of legal age will not render the marriage void
 It is the agreement of the principal contracting parties in the presence of
the solemnizing officer which constitutes the contract
 Common-Law Marriages not recognized in the Philippines
o A common-law marriage may be defined as a non-ceremonial or informal
marriage by agreement, entered into by a man and a woman having capacity to
 marry, ordinarily without compliance with such statutory formalities as those
pertaining to marriage licenses
 Must be coupled with consummation, including at least cohabitation as
husband and wife, and reputation in such a way that the public will
recognize the marital status
o Common-law marriages are not recognized in the Philippines
 Absence, defect, irregularities in essential and formal requirements
o Generally, absence of any of the essential or formal requirements of a marriage
renders such marriage null and void
o Marriages considered void:
 Marriage by way of a jest
 Marriage by proxy
o Absence of a marriage license does not affect the validity of marriage if it falls
under Chapter 2, Title I of the Family Code
o Marriage solemnized by a person without authority to solemnize the marriage
provided that either one of the parties believed in good faith that such solemnizer
had the proper authority
o Defects in the essential requirements of marriage, enumerated in Articles 45 and
46, makes the marriage annullable or voidable
o Irregularities in the formal requisites do not affect the validity of marriage, except
when parental consent for contracting parties over 18 years old but below 21
years old is not obtained
o A judge solemnizing a marriage without having been shown a valid marriage
license and merely requires the submission of the marriage license may be held
administratively liable
 However, this does not invalidate the marriage
o Irregularities not affecting the validity of marriage
 Absence of two witnesses of legal age during the marriage ceremony
 Absence of a marriage certificate
 Marriage solemnized in a place other than publicly in the chambers of the
judge or in open court, in church, chapel or temple, or in the office of the
consul-general, consul or vice-consul
 Issuance of marriage license in the city or municipality not the residence
of either of the contracting parties
 Unsworn application for marriage
 Failure of the contracting parties to present original birth certificate or
baptismal certificate to the local civil registrar who likewise failed to ask
for the same
 Failure of the contracting parties between the ages of 18 and 21 to exhibit
consent of parents or legal guardians to the local civil registrar
 Failure of the contracting parties between ages of 21 to 25 to exhibit
advice of parents to local civil registrar
  Failure to undergo marriage counseling
 Failure of the local civil registrar to post the required notices
 Issuance of marriage license despite absence of publication or prior to the
completion of the 10-day period for publication
 Failure of the contracting parties to pay the prescribed fees for the
marriage license
 Failure of the person solemnizing the marriage to send copies of the
marriage certificate to the local civil registrar
 Failure of local civil registrar to enter the applications for marriage
licenses filed with him in the registry book in the order in which they were
received
 Breach of promise to marry
o Mere breach of a promise to marry is not an actionable wrong
o Formally setting a wedding and going through all the preparations and publicity,
only to walk out of it when the matrimony is about to be solemnized is an
actionable wrong through Article 21 of the Civil Code
ARTICLE 7 – SOLEMNIZING OFFICERS
 Marriage may be solemnized by:
o Any incumbent member of the judiciary within the court’s jurisdiction;
o Any priest, rabbi, iman, 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 his church or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officer’s church or religious
sect
o Any ship captain or airplane chief only in the cases mentioned in Article 31
o Any military commander of a unit which a chaplain is assigned, in the
absence of the latter, during a military operation, likewise only in the cases
mentioned in Article 31
o Any consul-general, consul or vice-consul in the case provided in Article 10
 Authorized Solemnizers in Marriage
o If the solemnizing officers fail to comply with any of the requisites mandated by
law for them to validly solemnize a marriage, such a marriage is generally void on
the ground of absence of a formal requirement which is authority of the
solemnizing officer

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