ARTICLE 27-34

MARRIAGES EXEMPT FROM LICENSE REQUIREMENT

ARTICLE 27
-Talks about marriages in articulo mortis point of death

-can be both or either of the parties

-remains valid even if one or both of the parties survives

Who Can Perform Marriages in Articulo Mortis

Not only those enumerated in Article 31 and 32

A justice, a judge and other solemnizing officers can do so within their jurisdiction.

Danger of Death Distinguished from Point of Death

If a soldier is about to go to war, he may be in danger of death, but not at the point of death; hence, a marriage in articulo mortis would not be applicable to him

CASES FOR ARTICLE 27

When No New Marriage Ceremony Is Needed

Soriano v. Felix, L-9005, June 20, 1958).

A marriage remains valid even without need of a new marriage ceremony if the ailing party survives.

CASES FOR ARTICLE 27

Signature of Dying Party

(Cruz v. Catandes, C.A., 39 O.G. No. 18, p. 324).

In a marriage in articulo mortis, while it is advisable that a witness to the marriage should sign the dying partys signature if the latter be physically unable to do so, still if upon order of the solemnizing official, another person should so sign, the marriage is still valid. The law as much as possible intends to give legal effect to a marriage. As a matter of fact, no particular form for a marriage celebration is prescribed

ARTICLE 28
MARRIAGE IN A REMOTE PLACE:

q Area is located where there is no means of transportation for either parties to appear personally before the local civil registrar

q There is no prescribed minimum or maximum distance (unlike Art. 72 of Civil Code: habitual residence of the female is more than 15 kilometers away from municipal building)

ARTICLE 28
PURPOSE OF PROVISION:

q Avoid the proliferation of illicit relationships only because parties could not get a married license q Anchored on necessity and practicality

LIMITATION:

q Subject to provisions in Articles 2 (essential req.), 3 (formal req.), and 29 (affidavit requirement) q Must not fall under void marriages (Arts. 35, 36, 37, 38, 40, 41, 44 & 53)

ARTICLE 29
AFFIDAVIT EXECUTED BY THE SOLEMNIZING OFFICER BEFORE THE LOCAL CIVIL REGISTRAR

ARTICLE 29
CASES:

LORIA
V.

FELIX, 55 O. G. 8118

SORIANO V. FELIX, L-9005, JUNE 20, 1958

ARTICLE 30
The original of the affidavit required in the last preceding article, together with the legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was performed within the period of thirty days after the performance of the marriage.

Article 31
The Family Code of the Philippines

Reason:

Mainly anchored on necessity and practicality.

 Definition:

Articulo Mortis
- at the point of death

Port of call/Port call

- an intermediate port where ships/ aircrafts customarily stop for supplies, repairs, or transshipment of cargo

Marriage may be solemnized by:

- Ship captain while ship is at sea and during stopovers at ports of call - Airplane Pilot while plane is in flight and during port call. - Among passengers and crew members

Article 32
A military commander of a unit who commissioned officer, shall likewise have authority to solemnize marriages in ARTICULO MORTIS between persons within the zone of military operation, whether members of the armed forces or civilians.

Articulo Mortis
Defined as "at the point of death" or "in the moment of death"

Comment:
1. Special Cases of Marriages in ARTICULO MORTIS a. Military commander, crew member, captain, airplane pilot

b. A judge or a consul

2. Re: Military Commander

A. must be a commissioned officer

B. marriage may be between civilians

Article 33

Marriages among Muslim or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided that they are solemnized in accordance with their customs, rites or practices.

Thus: No judicial notice can be taken of Mohammedan rites and customs of marriage. They must be alleged and proved in court.

ARTICLE 34
No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (76a)

1. The contracting parties must have lived together as husband and wife for at least five years before marriage characterized by exclusivity and continuity that is unbroken;

Requisites:

2. No legal impediment of any kind must exist between them;

3. The fact of absence of legal impediment between the parties must be present at the time of marriage;

1. The parties must execute an affidavit stating that they have lived together for at least five years (and are without legal impediment to marry each other);

2. The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage.

Legal impediment, meaning

Refers to any possible ground or basis under the Family Code, including non-age and the status of being already married among others, to make a marriage infirm.

NOTE: Presence or absence of such legal impediment should only be considered at the time of the celebration of the marriage ceremony. Failure of the solemnizing officer to investigate shall not invalidate the marriage.

Reason for the Article

The publicity attending the marriage license may discourage such persons from legalizing their status. (Report of the Code Com, p. 80)

Marriage Law of 1929

Under the Marriage Law of 1929, any officer, priest or minister who, having solemnized a marriage in articulo mortis or any marriage of an exceptional character, shall fail to comply with the provisions of Chapter II of this Act (now Chapter 2, Title I of the Family Code), shall be punished by imprisonment for not less than one month nor more than two years, or by a fine of not less than three hundred pesos nor more than two thousand pesos, or both, in the discretion of the court.

CASE

Cohabitation for five (5) years; falsified.

De Castro vs Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162

The Supreme Court ruled the nullity of a marriage on the ground of absence of a valid marriage license upon evidence that there was in fact no cohabitation for five years contrary to the statements in the falsified affidavit executed by the parties. The falsity of the affidavit cannot be considered to be a mere irregularity considering that the five-year period is a substantial requirement of the law to be exempted from obtaining a marriage license. (see also Republic v Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435)

CASE

No Legal Impediment to marry.

Article 76 of the Civil Code vis-a-vis Article 34 of the Family Code

 Nial vs Bayadog, G.R. No. 133778, March 14, 2000, 328 SCRA 122)-ARTICLE 76
The Supreme Court held that the cohabitation for five years under Article 34 should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage license. Since the husband had a subsisting marriage at the time he started cohabitating with the respondent, such cohabitation cannot be "husband and wife" and they were not, therefore, exempt from a marriage license when they got married.

Manzano vs Sanchez, AM No. MTJ OO-1329, March 8, 2001-ARTICLE 34

Under Article 34 of the Family Code, however, as long as there is no legal impediment at the time of the marriage ceremony, the parties can avail of the exception.

CASE

Other cases on no legal impediment to marry; failure of the solemnizing officer to investigate:

Cosca vs Palaypayon, 55 SCAD 759, 237 SCRA 249

Where a judge solemnize a marriage involving a party who was only 18 years of age without a marriage license on the basis of an affidavit where the parties indicated that they lived together as husband and wife for six years already, the Supreme Court held that the judge acted improperly because he should have conducted first an investigation as to the qualification of the parties. The judge should have alerted the fact that the child was 18 years old at the time of the marriage ceremony, which means that the parties started living together when the 18-year old was barely 13 years of age. There was a propbability that the affidavit was forged. Nevertheless, the Supreme Court did not state that the marriage was void because clearly at the time of the marriage ceremony, the parties had no legal impediment to marry.