INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29

August 2019] 1

MODULE 5
MARRIAGE
WEEK 5 – 26 & 29 August 2019

CONCEPT AND NATURE OF MARRIAGE

 Effectivity of the Family Code. – Executive Order

No. 209, otherwise known as the Family Code of the Philippines, took
effect on August 3, 1988, one year after publication in a newspaper of
general circulation.

 Marriage defined. – Article 1 of the Family Code

defines marriage, as follows:

“ARTICLE 1. – Marriage is a special

contract of permanent union between a man
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 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. (52a)”
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 Constitutional provisions on marriage. –

Article XV of the Constitution provides:

“Sec. 1. – The State recognizes the

Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its
solidarity and actively promote its total
development.

“Sec. 2. Marriage, as an inviolable social

institution, is the foundation of the family
and shall be protected by the State.”

 Marriage is a special contract. – Marriage is a

special contract for at least two reasons:

(a) Unlike in ordinary contracts, the parties are powerless to

terminate it; and
(b) The rights and duties of the parties, as fixed by law, may not
be increased or diminished by agreement of the parties.

 Marriage is a permanent union. – Marriage is a

lifelong relationship. In other words, the status of marriage ordinarily
continues during the joint lives of the parties or until annulment or
declaration of nullity of such marriage.

 The cohabitation of a spouse with another person, even

for a long period, does not sever the tie of a subsisting previous marriage.
Once a valid marriage is established, it is deemed to continue until proof
that it has been legally ended is presented . ( Arbulario vs.
CA and Colinco, G.R. No. 129163, 22 April 2003,
401 SCRA 360.)
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 Purpose of marriage. – The purpose of marriage is to

establish conjugal and family life. This includes companionship,
procreation and raising children to become responsible members of
society.

 Parties to marriage. – In a real sense, there are three

parties to every marriage: two willing spouses, and an approving State.

 Our family law is based on the policy that marriage is not

a mere contract, but a social institution in which the State is vitally
interested. Marriage in this jurisdiction is not only a civil contract, but it is
a new relation, an institution in the maintenance of which the public is
deeply interested. This interest proceeds from the constitutional mandate
that the State recognizes the sanctity of family life and of affording
protection to the family as a basic “autonomous social institution.”
Specifically, the Constitution considers marriage as an “inviolable social
institution,” and is “the foundation of family life which shall be protected by
the State.” Our Constitution is so committed to the policy of strengthening
the family as a basic social institution because the state can find no
stronger anchor than on good solid and happy families. The break-up of
families weakens our social and moral fabric and, hence, their
preservation is not the concern alone of the family members.

 Marriage settlements or pre-nuptial

agreements. – There is only one aspect of marriage that can be the
subject of an agreement between the contracting parties, that is – that the
marriage settlements may fix the property relations of the spouses during
the marriage. But even this freedom “to fix the property relations during
the marriage” is not absolute as the same must be exercised “within the
limits provided by the (Family) Code.”

REQUISITES OF MARRIAGE
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 Essential requisites of marriage. – Article 2 of

the Family Code provides that:

ARTICLE. 2. – No marriage shall be valid,

unless these essential requisites are present:
(1) Legal capacity of the contracting
parties who must be a male and a
female; and
(2) Consent freely given in the presence
of the solemnizing officer. (53a)

 Legal capacity. – One has legal capacity to marry if

he/she:
(a) is 18 years old or over (Art. 5, FC);
(b) has no subsisting prior marriage (Art. 35, FC);
(c) is not prohibited by law to marry the other by reason
of the relationship being incestuous or contrary to
public policy ((Arts. 37 & 38, FC)
(d) is not of the same sex as the other. (Art. 2, FC)

 Consent. – Both of the parties must give consent to the

marriage. It is their consent, not the consent of the parents that is referred
to in Article 2(1) of the Family Code.
 Free consent connotes that the contracting parties
willingly and deliberately entered into the marriage. It signifies that, at the
time of the marriage ceremony, they were capable of intelligently
understanding the nature and consequences of the act.
 The free consent must be given in the presence of the
solemnizing officer. Together with the mandatory requirement under
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Article 6 of the Family Code that the contracting parties must

be personally present during the solemnization of marriage, this
requirement prohibits proxy-marriages in the Philippines.

 Effect of absence of any of the essential

requisites. – The absence of any of the essential requisites of marriage
renders the contract of marriage void ab initio except as may be
provided in Section 35(2) of the Family Code.
 Total absence of consent to the marriage by any of the
contracting parties must be distinguished from one where consent is
present but vitiated. The former results into a void ab initio marriage,
while the latter into a voidable marriage.

 Effect of defect in any of the essential

requisites (Art. 4, FC). – A defect in any of the essential requisites
of marriage renders the marriage voidable as provided in Article 45
of the Family Code.

 When parental consent to the marriage is

required. – If either or both contracting parties are between the ages of
18 and 21, the consent of the father, mother, surviving parent or guardian,
or persons having legal charge of them, in that order, is necessary.
(Art. 14, FC.)

 How consent manifested. – To prove

compliance with the requisite parental consent:

(a) The parents or guardians may appear personally before the

proper local civil registrar and accomplish the written consent
before him; or
(b) If the parents or guardians do not appear personally before
the proper local civil registrar, their parental consent may be
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in the form of an affidavit made in the presence of two

witnesses and attested before any official authorized by law
to administer oaths.

This personal manifestation shall be recorded in both

applications for marriage license, and the affidavit, if one is executed
instead, shall be attached to such applications.

 Tenor of consent. – The parental consent must be

for the child to marry a “specific” person; it cannot be consent to
marry anyone.

 Effect of absence of parental consent. – If

the marriage is solemnized without parental consent, the marriage is
voidable.

 Formal requisites of marriage. – Article 3 of the

Family Code provides that:

“ARTICLE. 3. – The formal requisites of

marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in
the cases provided for in Chapter 2 of this
Title; and
(3) 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)”
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 Authorized solemnizers of marriage. – The

authority given to specified people to solemnize marriages is provided for
in Article 7.

“ARTICLE 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 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;
(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)”

 Members of the judiciary as solemnizing

officers. – Judges can solemnize marriage only within their courts’
jurisdiction. Moreover, they must be incumbent and not retired judges. If
a marriage is solemnized by a judge of the court beyond his jurisdiction,
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there is absence of a formal requisite in such a marriage, namely the

authority of the solemnizing officer. Hence, the marriage is void unless
either of the parties believed in good faith that such solemnizing officer
has authority to conduct such marriage. (Arts. 7[2] & 35[2],
FC.)

 Marriages solemnized by priests or

ministers of religious sects. – For marriages solemnized by priests
or ministers of religious sects, it is required that at least one of the
contracting parties belongs to the solemnizing officers’ church or religious
sect.

 Articulo mortis. – Ship or airplane captains, and

military commanders, solemnize only marriage in articulo mortis in areas
specified by law. (Arts. 7[3] & [4], in relation to Arts.
31 & 32, FC.)

 Consuls as solemnizing officers. – Marriages

between Filipino citizens abroad are to be celebrated by a consul-general,
consul or vice consul. (Arts. 7[5] & 10, FC.)

 Mayors as solemnizing officers. – Under the

Local Government Code, only mayors are authorized to solemnize
marriages.

 A valid marriage license. – Without a marriage

license, the marriage is void.
 Place of issue – The contracting parties should file
an application for a marriage license with the local civil registrar of the city
or municipality where either of them resides. (Art. 9, FC.)

 Lifespan of license – The marriage license is

valid only within the Philippines and not abroad. It is good for 120 days
from the date of issue. The date of the signing of the local civil registrar of
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the marriage license is the date of the issue. From the date of issue, it
should be claimed by the parties. If it is not claimed and therefore not
used within 120 days, it shall automatically become ineffective. (Art.
20, FC.)

 Personal appearance in a marriage

ceremony. – The Family Code does not generally prescribe any
particular form of a marriage ceremony. However, the 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.

 Proxy marriages – Since it is imperative that the

parties appear before the solemnizing officer in a ceremony, there cannot
be a proxy marriage. A proxy marriage is void by reason of absence of a
valid ceremony.

 Witnesses – It is necessary that the ceremony be

witnessed by at least two persons of legal age. If there is only one
witness, the ceremony is merely irregular, and will not affect the validity of
the marriage.

 Marriage certificate – The marriage certificate

has to be signed by the persons required by law to sign it. In case of a
marriage in articulo mortis (at the point of death), it is enough that one of
the witnesses write the name of the party concerned on the certificate.
The failure of one or all of the persons who are supposed to sign the
certificate or of any of the witnesses to write the name of the party will not
invalidate the marriage. A certificate is neither an essential nor formal
requisite of marriage, but is merely evidence of the fact of marriage. Such
fact may be proved by other forms of evidence.
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VOID MARRIAGES

 Marriages void from the beginning for lack

of any of the requisites provided by law for its
validity. – Article 35 of the Family Code provides that:

“ARTICLE 35. – The following marriages

shall be void from the beginning:

(1) Those contracted by any party below

eighteen years of age even with the consent
of parents or guardians;
(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 the legal
authority to do so;
(3) Those solemnized without 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.”

 Marriages void because of psychological

incapacity. – Article 36 of the Family Code provides that:
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ART. 36. – A marriage contracted by any

party who, at the 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 manifest only after its
solemnization. (As amended by Executive
Order 227 dated July 17, 1987)

 Marriages void because of incestuous

relationship. – Article 37 of the Family Code provides that:

ARTICLE 37. – Marriages between the

following are incestuous and void 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.

 Marriages void for reasons of public policy. –

Article 38 of the Family Code provides that:

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 degree;
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(2) Between step-parents and step-

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

 Marriages void for failure to obtain a judicial

declaration of nullity of a previous marriage. – Article 40
of the Family Code provides that:

ART. 40. – The absolute nullity of a

previous marriage may be invoked for
purposes of remarriage on the basis solely of
a final judgment declaring such previous
marriage void. (n)
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 What Article 40 means – Stated otherwise, if a party

who is previously married wishes to contract a subsequent marriage
during the lifetime of the other spouse, he or she has to obtain first a
judicial decree declaring the previous marriage void, before he or she
could contract said subsequent marriage. No matter how obvious,
manifest, or patent the absence of a formal or essential element to a
marriage is, the intervention of the courts must always be resorted to
because the parties are not free to determine for themselves the validity or
invalidity of their marriage.

 Effect of failure to secure prior final judgment

– When a party enters into another marriage without first securing the
declaration of the nullity of his or her previous marriage, the subsequent
marriage shall be void. In addition, a party may be found guilty of the
crime of bigamy or concubinage for having entered into the second or
subsequent marriage.

VOIDABLE MARRIAGES

 Exclusivity of grounds for annulment. – Under

the Family Code, an annullable marriage is the same as a voidable
marriage. Unlike a void marriage which is invalid from the beginning, an
annullable or voidable marriage is considered valid up to the time it is
terminated. Consequently, grounds for annulment are only those
specified by law. Any ground not provided by law cannot be invoked to
annul a marriage. The exclusivity of the grounds is in line with the policy
of the state to enhance the permanence of marriage. The fundamental
policy of the state, which regards marriage as indissoluble and sacred,
being the foundation upon which society rests, is to be cautious and strict
in granting annulment of marriage.
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 Factors considered in annulment. – In order that

the annulment of a voidable marriage may be decreed, it is necessary to
consider not only the cause, whether one exists or not, but the person
who files the petition, whether he is the proper party, and also the time of
the filing of the petition, if it is done within the period of filing provided by
law. In addition, whether the defect has been cured or not should also be
taken into account.

 Grounds for annulment. – Articles 45 and 46 of the

Family Code enumerate the causes which will give rise to an action for
annulment of marriage, to wit:

“ARTICLE 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, guardians 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
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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)

“ARTICLE 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 the 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, homosexuality or
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lesbianism existing at the time of the

marriage.
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)

“ARTICLE 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; or 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
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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.

 Lack of parental consent. – The law considers

persons of the age of at least 18 years and below 21 years as not
possessing that degree of maturity to be able to comprehend thoroughly
the consequences and serious responsibilities of marital relations; hence,
before marriage, he or she must obtain parental consent.

 Who may file annulment. – If the ground for

annulment is lack of parental consent, the action for annulment may be
filed either:

(a) By the person whose consent is required under Article 14 of the

Family Code, but only in cases where the party whose parent did not
give consent has not yet reached the age of 21; OR
(b) By the party whose parent did not give consent, but only in cases
where such party has already reached the age of 21. (Art. 47[1],
FC.)

 Unsoundness of mind. – One’s mind is unsound if it

is afflicted with a defect or disease that makes the person incapable of
making an intelligent consent. It may be natural, like insanity, or artificial
like intoxication.

 Consent through fraud. – The specific forms of

fraud employed in obtaining consent that will constitute as a defect
rendering the marriage voidable are enumerated in Article 46.
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 Consent through force, intimidation or

undue influence. –

 There is force or violence when in order to wrest

consent, serious or irresistible force is employed. This contemplates a
situation where actual physical force is inflicted on a contracting party to
wrest his consent to the marriage. (Art. 1335, NCC.)

 There is intimidation when one of the contracting

parties is compelled by a reasonable and well-grounded fear of an
imminent and grave evil upon his person or property, or upon the person
or property of his spouse, descendants, or ascendants to give his consent.
(Art. 1335, NCC.)
 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. (Art. 1337, NCC.)

 Physical incapability to consummate the

marriage or impotency. – Impotency is the physical inability to
have sexual intercourse. It imports a total want of power of copulation. It
is not synonymous with sterility. Sterility refers to the inability to
procreate, whereas, impotence refers to the physical inability to
perform the act of sexual intercourse. Only impotency constitutes a
ground for annulment of marriage.

 Sexually transmissible disease (STD). –

 Concealment of a sexually transmissible disease (whether
serious or not), at the time of the celebration of the marriage, constitutes
fraud under Article 45(3) in relation to Article 46(3) of the
Family Code.
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 If the STD is not concealed, it can still be a ground for

annulment of marriage but, to successfully invoke this ground, the STD
(unlike in the case of fraud), must be found to be serious and incurable.
[Article 45(6), FC.]

CAPACITY AND RIGHT TO REMARRY

UNDER
ARTICLE 26 OF THE FAMILY CODE

“ARTICLE 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. (17a)
Where a marriage between a Filipino
citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him
or her to remarry, the Filipino spouse shall
have capacity to remarry under Philippine
law. (As amended by Executive Order 227)”

 Validity of marriage solemnized abroad. –

Generally, marriages solemnized abroad that are valid in the country
where they were solemnized are also valid in the Philippines – “valid
there, valid here”.
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 Mixed Marriages under Paragraph 2 of

Article 26. – In marriages between a Filipino and an alien, a divorce
obtained by the alien spouse abroad capacitating him/her to remarry will
capacitate the Filipino spouse to remarry under Philippine law.
 It is only in this instance where a divorce obtained abroad
involving a Filipino is recognized in the Philippines.

 In  Republic vs. Manalo (G.R. No.

221029, 24 April 2018), the Supreme Court ruled that even if
it is the Filipino spouse who validly obtains the divorce decree abroad, he
or she shall likewise become capacitated to remarry under Philippine law,
in the same manner that the alien spouse has now, by virtue of such
decree, also become capacitated to remarry. It further ratiocinated that
the limitation of the provisions of Article 26, paragraph 2 only to a foreign
divorce decree initiated by the alien spouse is unreasonable as it is based
on superficial, arbitrary, and whimsical classification.

 The second paragraph of Article 26 also applies to a

situation where originally, at the time of the marriage ceremony, both
parties were Filipinos, but at the time of the divorce, the petitioner was
already a citizen of a foreign country that allows absolute divorce. For
purposes of Article 26 therefore, the determinative point when the
foreigner who procured the divorce should be a foreigner is at the time of
the divorce and not at the time of the marriage ceremony
( Republic vs. Orbecido III, G.R. No. 154380,
October 5, 2005, 472 SCRA 114).

 ILLUSTRATIVE EXAMPLES:

 John, an American citizen married Maria, a Filipino citizen.

The marriage was validly celebrated in New York. Later, John obtained a
divorce decree against Maria in New York. John subsequently married
Chloe. Thereafter, Maria married her childhood sweetheart Pedro in the
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Philippines. Under Article 26, paragraph 2, the ensuing marriage of Maria

to Pedro is valid. The same rule will apply if it was Maria who obtained a
divorce decree against John in New York where divorce is recognized.

 Luis and Celia, both Filipinos, married in the United States.

Not long after, Luis divorced Celia in the U.S. Thereafter, Celia married
Juanito. The marriage of Celia to Juanito is void for being bigamous. The
divorce obtained by Luis is not recognized in the Philippines. Before the
eyes of the Philippine law, Luis and Celia are still married to each other.
Article 26, paragraph 2 requires that the Filipino is married to a foreigner,
and a divorce decree is subsequently obtained by either of the spouses.

 Igme and Dalisay are both Filipinos. They got married in the
Philippines. Igme went to the U.S. and became an American citizen by
naturalization. Thereafter, Igme divorced Dalisay, and married Bituin.

(a) Is the marriage between Igme and Bituin

valid? YES, the marriage of Igme and Bituin is valid. At the time
Igme married Bituin, Igme was no longer a Filipino citizen. Article 15
of the New Civil Code is no longer applicable to him. The reckoning
point is the citizenship of Igme at the time a valid divorce was
obtained by him and not his citizenship at the time of the celebration
of the marriage.

(b) Can Dalisay validly remarry another party?

YES. Dalisay, the divorced Filipino spouse can validly remarry
having been set free by the valid divorce obtained by Igme at a time
when he was already a foreigner - a naturalized American citizen.

LEGAL SEPARATION

 Nature of legal separation. – In the Philippines, we

do not have absolute divorce (divorce a vinculo matrimonii). We only
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have relative divorce or legal separation (divorce a mensa et thoro). In

absolute divorce, the marriage is dissolved and the parties can remarry.
In relative divorce or legal separation, however, the marriage bond is not
dissolved and the parties are not entitled to remarry. In effect, the parties
are merely separated from bed and board.

 GROUNDS. – There are ten grounds for legal separation

under Article 55 of the Family Code, to wit:

“ARTICLE 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;
(3) Attempt of respondent to corrupt or
induce the petitioner, a common child, or a
child of the petitioner, 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;
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
August 2019] 23

(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 purposes of this Article, the term
“child” shall include a child by nature or by
adoption. (97a)”

 Requisites. –

(a) Time constraint. – An action for legal separation shall

be filed within five (5) years from the time of the occurrence of the
cause. (Art. 57, FC.)

(b) Cooling off period. – An action for legal separation

shall in no case be tried before six (6) months shall have elapsed
since the filing of the petition. (Art. 58, FC.)

(c) Reconciliation. – In every case, 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 highly improbably. (Art. 59, FC.)

(d) Decree shall not be based on stipulation of

facts. – No decree of legal separation shall be based upon a stipulation
of facts or a confession of judgment. In any case, the court shall order the
prosecuting attorney or fiscal assigned to it to take steps to prevent
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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collusion between the parties, and to take care that the evidence is not
fabricated or suppressed. (Art. 60, FC.)

 Effects of the decree of legal separation

(Art. 60, FC). –

(a) On marriage bonds. – The spouses shall be entitled

to live separately from each other, but the marriage bonds shall not be
severed.

(b) On property relations. – The absolute community or

the conjugal partnership shall be dissolved and liquidated.

(c) On custody of children. – The custody of the minor

children shall be awarded to the innocent spouse, subject to the
provisions of Article 213 of the Family Code.

(d) On right to succession. – The guilty spouse shall be

disqualified from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the guilty spouse made in
the will of the innocent spouse shall be revoked by operation of law.

RIGHTS AND OBLIGATIONS

BETWEEN HUSBAND AND WIFE

 To live together (Art. 68, FC). –

 This is both a duty and a right. This includes cohabitation

or consortium and sexual intercourse. If there is, however, a legal
separation, there is no more duty to have sexual intercourse.
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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 Under R.A. No. 8353, otherwise known as the Anti-Rape

Law of 1997, a husband may be held liable for the rape of his wife.
However, the subsequent forgiveness by the wife shall extinguish the
criminal liability, except when the marriage is void ab initio.
 The husband and the wife shall fix the family domicile. In
case of disagreement, the court shall decide. (Art. 69, FC)
 The wife may establish a separate domicile in the
following cases:
(a) If the husband maltreats her.
(b) If the husband grossly insults her.
(c) If the husband is immoderate or barbaric in his demands for sexual
intercourse.
(d) If the husband continuously indulges in illicit relations with another
even if the concubine or concubines are not brought into the marital
abode.
(e) If the husband refuses to support the family, or continuously gambles
(f) If the husband insists on living with his own parents.
(g) If she is virtually driven off their home by her husband and she is
threatened with violence if she should return.

 To observe mutual respect and fidelity. – T

 Mutual respect simply means that each shall respect the

other. They can disagree or reprimand each other, but it is unlawful for
them to inflict force or physical harm, EXCEPT when either of them
SURPRISES the other in the act of committing sexual intercourse with
another person. Even under this situation, Article 247 of the Revised
Penal Code imposes a penalty of destierro to the guilty spouse.
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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 Infidelity, on the other hand, is a ground for legal

separation or disinheritance under Articles 55(8) and 63(4) of the Family
Code.
 Adultery – Adultery is a crime committed by any
married woman who shall have sexual intercourse with a man not her
husband; and by a man who has carnal knowledge of her, knowing her to
be married, even if the marriage is subsequently declared void (Art.
333, RPC).
 Concubinage – Any husband who shall keep a
mistress in the conjugal dwelling or shall have sexual intercourse, under
scandalous circumstances, with a woman who is not his wife, or shall
cohabit with her in any other place, shall be punished by prision
correctional in its minimum and maximum periods (Art. 334, RPC).
 Marital privilege rule. – A husband cannot be
examined for or against his wife without her consent; nor a wife for or
against her husband without his consent, except in a civil case by one
against the other, or in a criminal case for a crime committed by and
against the other. (Sec. 20[b], Rule 130.)

 Marital communication rule. – The husband or the

wife, during the marriage or afterwards, cannot be examined without the
consent of the other as to any communication received in confidence by
one from the other during the marriage. (Sec. 21[a], Rule
130.)

 To render mutual help and support. – T

 A husband does not marry his wife to make the latter his
slave and vice-versa. They should help and support each other within
their available resources and see to it that they assist each other in the
rearing of their children for civil efficiency and development of moral
character.
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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 The spouses are jointly responsible for the support of the

family (Art. 70, FC).
 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 (Art. 73, FC).

PROPERTY RELATIONS
BETWEEN HUSBAND AND WIFE

Property regimes named in the Family Code

(Art. 75, FC). –

(a) Absolute community of property. – ln absolute

community of property, all properties owned by the spouses at the time of
the celebration of the marriage, and those acquired during the existence
of the marriage, form part of the community property. (Art. 91, FC.)

(b) Conjugal partnership of gains. – Unlike in the

regime of absolute community, the property of either spouse that he or
she brings to the marriage remains as his or her exclusive property in the
regime of conjugal partnership of gains, although the fruits and income
thereof are considered conjugal partnership property. All properties,
however, acquired by either or both spouses after the celebration of the
marriage belong to the partnership property. (Art. 106, FC.)

(c) Separation of property. – ln separation of property,

the properties owned by the spouses at the time of the celebration of the
marriage and those earned by them during the marriage, and the fruits
thereof, are exclusive properties of each of the spouses.
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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 Default property regime (Art. 75, FC). – Prior

to the effectivity of the Family Code if the spouses marry in the absence of
a marriage settlement, or when the same is void, the system of conjugal
partnership of gains shall govern the property relations between husband
and wife. (Art. 119, NCC.) Under the Family Code in the absence
of a marriage settlement, or when the regime agreed upon is void, the
system of absolute community of property governs the property relations
of the spouses. (Art. 75, FC.) Hence, for spouses who got married
on August 3, 1988 (the effectivity date of the Family Code) or thereafter
without any marriage settlement, their property relations shall be governed
by a regime of absolute community. However, for spouses who got
married without a marriage settlement prior to August 3, 1988 but after
August 30, 1950 (effectivity date of the New Civil Code), their property
relations shall be governed by a regime of conjugal partnership of gains.




The discussion below is given to help you understand

better Articles 37(1) & 38(1) of the Family Code:

 How Degrees of Generation Are Computed. –

(1)IN THE DIRECT LINE - In counting the degrees in the direct
line, ascent is made to the common ancestor. Count ALL who are
included, then minus one.
 Hence, the child is one degree removed from the parent, two
degrees away from the grandparent, and three degrees away from the
great grandparent.

GREAT GREAT GRANDFATHER  Four Degrees


INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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GREAT GRANDFATHER  Three Degrees


GRANDFATHER  Two Degrees

FATHER  One Degree

CHILD

(2)IN THE COLLATERAL LINE - In counting the degrees in the

collateral line, go up to the nearest common ancestor, then go down
minus one.
 In the illustration below:

1. Bayani and Bonifacio are the sons of Corazon.

2. Andres is the son of Bayani.
3. Andres has 3 children – Ambrosio, Angelo and Amanda.
4. Ambrosio has 2 children – Carmelo and Cornelio.
5. Amanda has 2 children – Armando and Cristy.
6. Sigmundo is the son of Carmela, and Sonia is the daughter of
Sigmundo.

Corazon


Bayani Bonifacio


Andres

INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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Ambrosio Angelo Amanda

 
Carmela Cornelio Armando Cristy
   
Sigmundo Vilma Lorna Belen
   
Sonia Violet Lorelei Beverly

 In the illustration above:

1. Amanda is the ascendant of Lorelei within the third (3rd) civil degree.
2. Beverly is the descendant of Corazon within the sixth (6th) civil
degree.
3. Lorna is a collateral blood relative of Cornelio within the fifth (5th) civil
degree.
4. Sonia is a collateral blood relative of Beverly within the eighth (8th)
civil degree.
5. Carmela is a collateral blood relative of Angelo within the third (3rd)
civil degree.
6. Carmela is a collateral blood relative of Bonifacio within the fifth (5th)
civil degree.
7. Armando is a collateral blood relative of Vilma within the fifth (5th) civil
degree.
8. Violet is a collateral blood relative of Angelo within the fifth (5th) civil
degree.
9. Vilma is a collateral blood relative of Beverly within the seventh (7th)
civil degree.
10. Sonia is a collateral blood relative of Armando within the sixth (6th)
civil degree.
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
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* * * END * * *

 MEMORIZE BY HEART THE FOLLOWING

PROVISIONS OF THE FAMILY CODE: ARTICLES 1, 2, 3,
7, 35, 36, 37, 38, 45, 46, & 55.

 READ THE FOLLOWING CASES IN THEIR

ORIGINAL TEXT:

 Arbulario vs. CA and Colinco, G.R. No. 129163,

22 April 2003, 401 SCRA 360.
 Republic vs. Orbecido III, G.R. No. 154380,
October 5, 2005, 472 SCRA 114.
 Republic vs. Manalo, G.R. No. 221029, 24 April
2018.

HAPPY READING & LEARNING! 

SOURCES of NOTES:
INTRO (ALM1&CLM1) – MODULE 5: Marriage [WEEK 5 – 26 & 29
August 2019] 32

The discussions outlined in this module have been collectively lifted from
the cases cited and commentaries made by the authors in the references
cited below:

1. Virgilio P. Alconera. Law, Persons and Family Relations (Quezon

City: Central Book Supply, Inc., 2010).
2. Virgilio B. Gesmundo. Jurisprudence and Comments on Persons
and Family Relations (Manila: Rex Book Store, 2014).
3. Elmer T. Rabuya. The Law on Persons and Family Relations
(Manila: Rex Book Store, Inc., 2016).
4. Melencio S. Sta. Maria, Jr. Persons and Family Relations Law
(Manila: Rex Book Store, Inc., 2015).
5. Rolando A. Suarez. Introduction to Law (Manila: Rex Book
Store, Inc., 2017).

The dictionary is the only place that success comes before work.
Work is the key to success,
and hard work can help you accomplish anything.
Vince Lombardi, Jr.