Itl - Week 4

INTRO (CLM1) – MODULE 5: Marriage 1
MODULE 5
MARRIAGE
WEEK 4
CONCEPT AND NATURE OF MARRIAGE
❶ 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.
❷ 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)”
❸ 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.”
❹ 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.
❺ 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
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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.)
❻ 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.
❼ 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 stroner 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.
❽ 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
❶ 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 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 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.
❷ 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)”
⮲ 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
Any consul-general, consul or vice-consul in the case provided
in Article 10. (56a)”
⮚ Members of 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, 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 belong 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 marrriages.
⮲ 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 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 certificte – 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.
VOID MARRIAGES
❶ 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.”
❷ Marriages void because of psychological incapacity. – Article 36 of

the Family Code provides that:
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)
❸ 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.
❹ 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;
(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)
❹ 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)
⮲ 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
❶ 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.
❷ 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 no should also be taken into account.
❷ 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
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 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;
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;
injured party, within five years after the discovery of the fraud;
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.
❸ 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.)
❹ 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.
❺ 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.
❻ 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.)
❼ 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.
❽ 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.
⮲ 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 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)”
❶ 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”.
❷ 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. This provision, however,
is applicable only if it is the alien spouse who validly obtained the divorce
decree abroad, and who, by virtue of such decree, becomes capacitated to
remarry.
⮲ 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:
① 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 Philippines.
Under Article 26, paragraph 2, the ensuing marriage of Maria to Pedro is
valid.
② 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 it was the
foreign spouse who sought and obtained a divorce decree.
③ 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
❶ Nature of legal separation. – In the Philippines, we do not have

absolute divorce (divorce a vincula matrimony). We only 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.
❶ 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;
(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)”
❷ 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 collusion between the parties, and to
take care that the evidence is not fabricated or suppressed. (Art. 60,
FC.)
❸ 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
❶ 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.
⮲ 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
subsequently 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 of their home by her husband and she is
threatened with violence if she should return.
❷ 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.
⮲ 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.)
❸ 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.
⮲ 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
❶ 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.
❷ 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 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
☞ Four Degrees
GRANDFATHER
☝
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
☝
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.
* * * 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:

① Arbulario vs. CA and Colinco, G.R. No. 129163, 22 April 2003, 401 SCRA
360.
② Republic vs. Orbecido III, G.R. No. 154380, October 5, 2005, 472 SCRA
114.
HAPPY READING & LEARNING! 

SOURCES of NOTES:
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.

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INTRO (CLM1) – MODULE 5: Marriage 1

CONCEPT AND NATURE OF MARRIAGE

❶ Effectivity of the Family Code. – Executive Order No. 209, otherwise

❷ Marriage defined. – Article 1 of the Family Code defines marriage,

“ARTICLE 1. – Marriage is a special contract of permanent

❸ Constitutional provisions on marriage. – Article XV of the

“Sec. 1. – The State recognizes the Filipino family as the

“Sec. 2. Marriage, as an inviolable social institution, is the

❹ Marriage is a special contract. – Marriage is a special contract for at

❺ Marriage is a permanent union. – Marriage is a lifelong relationship.

⮲ The cohabitation of a spouse with another person, even for a

❻ Purpose of marriage. – The purpose of marriage is to establish

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

❽ Marriage settlements or pre-nuptial agreements. – There is only one

❶ Essential requisites of marriage. – Article 2 of the Family Code

ARTICLE. 2. – No marriage shall be valid, unless these

⮲ Legal capacity. – One has legal capacity to marry if he/she:

(a) is 18 years old or over (Art. 5, FC);

⮲ Consent. – Both of the parties must give consent to the marriage.

⮚ Free consent connotes that the contracting parties willingly

⮚ The free consent must be given in the presence of the

⮲ Effect of absence of any of the essential requisites. – The

⮚ Total absence of consent to the marriage by any of the

⮲ Effect of defect in any of the essential requisites (Art. 4, FC). – A

⮲ When parental consent to the marriage is required. – If either or

⮚ How consent manifested. – To prove compliance with the

⮚ Tenor of consent. – The parental consent must be for the child

⮚ Effect of absence of parental consent. – If the marriage is

❷ Formal requisites of marriage. – Article 3 of the Family Code

“ARTICLE. 3. – The formal requisites of marriage are:

⮲ Authorized solemnizers of marriage. – The authority given to

“ARTICLE 7. – Marriage may be solemnized by:

⮚ Members of judiciary as solemnizing officers. – Judges can

⮚ Marriages solemnized by priests or ministers of religious

⮚ Articulo mortis. – Ship or airplane captains, and military

⮚ Consuls as solemnizing officers. – Marriages between Filipino

⮚ Mayors as solemnizing officers. – Under the Local

⮲ A valid marriage license. – Without a marriage license, the

⮚ Place of issue – The contracting parties should file an

⮚ Lifespan of license – The marriage license is valid only within

⮚ Proxy marriages – Since it is imperative that the parties

⮚ Witnesses – It is necessary that the ceremony be witnessed

⮚ Marriage certificte – The marriage certificate has to be signed

“ARTICLE 35. – The following marriages shall be void from the

(1) Those contracted by any party below eighteen years of age

❷ Marriages void because of psychological incapacity. – Article 36 of

ART. 36. – A marriage contracted by any party who, at the time

❸ Marriages void because of incestuous relationship. – Article 37 of

ARTICLE 37. – Marriages between the following are incestuous

(1) Between ascendants and descendants of any degree; and

❹ Marriages void for reasons of public policy. – Article 38 of the Family

ART. 38. – The following marriages shall be void from the

(1) Between collateral blood relatives, whether legitimate or

(8) Between adopted children of the same adopter; and

❹ Marriages void for failure to obtain a judicial declaration of nullity of

ART. 40. – The absolute nullity of a previous marriage may be

⮲ What Article 40 means – Stated otherwise, if a party who is

⮲ Effect of failure to secure prior final judgment – When a party

❶ Exclusivity of grounds for annulment. – Under the Family Code, an