Professional Documents
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Formal Requisite
Authority of Solemnizing Officer
The person who solemnized the marriage must be
among those authorized in Article 7 of the Family
Code to solemnize the marriage.
The authority of the solemnizing officer to
solemnize the marriage is presumed unless it is
otherwise proven.
It is not the duty of the solemnizing officer to
scrutinize the marriage license.
Essential Requisite
Legal Capacity
Age must be 18 and above
a.
b.
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e.
5.
Instances of Irregularities:
a. Marriage solemnized in a place other than in a church or
chamber of the judge.
b. Absence of two witnesses who are of legal age.
c. Issuance of a license in place where neither of the
parties reside.
d. Issuance of a license w/out the required supporting
papers or documents.
e. Absence of a marriage contract.
f. Issuance of license despite failure of the party to
present parental consent or parental advisewhen
required.
g. Issuance of license despite absence of posting notice
and publication.
h. Failure to undergo marriage counseling.
i.
Failure to pay the required fee for marriage license.
Marriage License
This serves as the authority given by the State to
the parties to enter into a contract of marriage.
It is the concern of the state to make marriages
secure and stable institution.
a.
b.
3.
c.
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c.
f.
a.
b.
c.
d.
e.
Article 17-19:
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Marriage Certificate
The best evidence to establish or prove marriage.
It is a certification issued by the solemnizing officer
that he performed or solemnized the marriage
between the parties. Absence of which will not
invalidate the marriage since it is not an essential
or a formal requisite.
What should be declared in the Marriage Contract?
1. The full name, sex and age of contracting parties.
2. Their citizenship, religion and habitual residence.
3. The date and precise time of the celebration of the
marriage so as to determine at what point will
govern the property relation of the parties.
4. Must indicate that the proper marriage license has
been issued according to law
Except in cases of:
a. Articulo Mortis
b. Marriage in a far and remote place
c. Marriages among Muslims or members of
ethnic cultural communities
d. Ratification of marital cohabitation
5. That both or either parties have secured the
parental consent in appropriate cases.
6. Either or both parties have complied with the legal
requirement regarding parental advice in
appropriate cases.
7. That the parties have entered into a marriage
settlement, it any, attaching the copy thereof.
Duty of the Solemnizing Officer
a. It his duty to furnish either of the contracting
parties the original marriage certificate and to send
the duplicate and triplicate copies of it not later
than 15 days to the Local Civil Registrar of the
place where the marriage was solemnized, the
LCR in turn will issue a receipt to the solemnizing
officer.
- 1 copy to the couple
- 2 copies to the LCR
- 1 copy to keep for the solemnizing officer
b. It shall also be his duty to keep the 4th copy of the
marriage contract, the original marriage license
and in some cases affidavit of the contracting
parties regarding the solemnization of the
marriage in a place other than his jurisdiction.
It is the burden of proof upon the person who attacked the validity of
marriage to present a strong and satisfactory evidence to rebut the
presumption of its validity. The evidence to prove the invalidity of the
marriage may even be presented for the first time on appeal.
Article 26: Lex Loci Celebraciones Rule in Marriage
Except those pointed out under Article 35 (1), (4), (5), (6), 36, 37
and 38.
1.
2.
3.
4.
5.
6.
7.
Requisites:
a. Must be a mixed marriage
b. Foreigner spouse is the one who secured the divorce
abroad
c. After the divorce, the foreigner spouse must again be
capacitated to remarry according to his national law.
Exception:
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a.
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b.
In a case wherein the Filipino citizen is the one who filed for a
divorce in another country to his foreigner husband/wife, the
foreigner spouse cannot anymore claim that he still an interest to
the properties of the Filipino citizen here in the Philippines or
subsequently file an adultery case against the Filipino since the
foreigner spouse has lost his legal standing against the Filipino for
the foreigner is already considered divorced by his national law.
Requisites:
1. The party must live together as husband and wife
for at least 5 years.
2. There must be no legal impediments for them to
marry each other.
What to do:
1. Both parties must execute a joint affidavit stating
the foregoing fact and have it notarized by a
person duly authorized to administer the oath.
2. The Solemnizing officer must ascertain first the
qualifications of the contracting parties if there are
any legal impediments.
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Void Ab Initio:
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
- One of the situations where good faith is taken into
considerations.
1. Juridical antecedent
- It must already be existing at the of the
celebration of the marriage
2. Gravity
- It must be a very serious defect
3. Incurability
- It is not curable
- Also refers to party not being able to afford the
cure
It is clear from the foregoing elements that the intention of the law
has been to confine the meaning of psychological incapacity to the
most serious cases of personality disorders clearly demonstrative of
an utter insensitivity or inability to give meaning and significance to
the marriage.
The decisions of the matrimonial tribunal of the Catholic Church
involving psychological incapacity as a group to annul the marriage
is greatly helpful and persuasive to our Civil Courts. Although our
courts are not bound by the decision of the matrimonial tribunal, the
said decision can be used by our Civil Court as a guide in the
determination of the existence psychological incapacity.
This was introduced by E.O. No. 227 on July 17, 1987 as an amendment
to the Family Code.
Psychological Incapacity
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Expert Testimonies
- During the trial for declaration of nullity of marriage on the
ground of psychological incapacity, expert testimonies of a
psychologist or psychiatrist is not a requirement for a
declaration of psychological incapacity and that it is not a
Moral Damages
- Moral damages cannot be recovered from the guilty party
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One should not put the law in his hands and decide for himself the
nullity of his marriage. He should let the court declare the nullity of
such before he can contract another marriage.
The nullity of a previous marriage can only or solely be established
by a final judgment of the court declaring such marriage void.
When the first marriage is undoubtedly void and a party to that
marriage contracted a 2nd marriage w/out obtaining first a judicial
declaration of nullity of marriage, would the said party be guilty of
bigamy?
Article 41-44: Declaration of Presumptive Death
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Well-founded Belief
- Supreme Court states that the meaning of the term
well-founded belief is the exercise of that degree of
due care diligence required in searching for a missing
spouse.
Affidavit of Reappearance:
- This shall be recorded in the office of the Local Civil
Registrar of the place where the present and the
subsequent spouse resides.
- The recording of this document is the operative act
that terminates the subsequent marriage without
prejudice to the outcome of any judicial proceeding
questioning the reappearance.
Article 391:
Article 390:
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whether or not the other spouse has a previous conviction since the
burden of proof is on the convicted party to divulge is criminal
records
The reason why this is a ground for annulment is because, any child
born after the celebration of marriage is considered a legitimate child
of the husband, and it would be unfair for the man to take care of the
child which is not his.
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It is their duty not only to defend the validity of the marriage and
prevent collusion between the parties but also to expose an invalid
one. The prosecuting attorney is required to actively participate in
the proceedings and submit a memorandum.
STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage
The defendant shall be served with summons and a
copy of the complaint whereby he is given 15 days to
file his answer from receipt thereof.
STEP 2:
During the Pendency of the Action of Annulment or
Declaration of Nullity of Marriage
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STEP 3:
Upon receipt of verified petition for declaration of absolute
nullity of Marriage or Annulment of Marriage or Legal
Separation
1) Spousal support
2) Child support
3) Child custody
4) Visitation rights
5) Hold departure order
6) Order of protection
Article 50-54: Decree of Annulment and Nullity of Marriage
LEGAL SEPARATION
Except:
c.
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STEP 1:
Filing in the Family Court the complaint for Annulment or
Declaration of Marriage
The defendant shall be served with summons and a
copy of the complaint whereby he is given 15 days to
file his answer from receipt thereof.
Condonation
An act of forgiving and is given after the fact, while
consent is given after the act that gives rise to the
ground for legal separation.
Connivance
This happens when the spouse participated in the
downfall of the other as by providing actively the
opportunity for the wrong doing directly or
indirectly.
Recrimination
This means that both parties are at fault or have
given ground for legal separation.
Collusion
This refers to an arrangement between the
spouses to obtain a decree of legal separation by
secret maneuvers or pretensions by making it
STEP 2:
Before the court will commence to the hearing of the case,
it should allow a Six Months Cooling-off Period to lapse
from the filing of the complaint
This is intended to give the parties enough time to
further contemplate their positions and allow the
healing balm of time to aid them in the process.
This is a mandatory requirement and its noncompliance renders the decision infirm. However, what
is only prevented is the hearing of the case on its
merits. It does not involve the hearing of other
incidents such as custody of minor children, support
pendete lite and alimony.
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is irrevocable.
No decree of legal separation may be issued unless the court has taken
steps towards the reconciliation of the spouses and is fully satisfied,
despite such efforts, that reconciliation is highly improbable. Likewise,
the court cannot render judgment on the basis of stipulation of facts or
confession of judgment.
STEP 3:
Spouses are entitled to live separately from each other
After the filing of the petition for legal separation the
parties are already entitled to live separately from each
other.
Administration of Conjugal Properties
- In the absence of written agreement of both
parties as to the administration of the absolute
community or conjugal partnership property shall
be decided by the court.
- If neither of the parties is fit to administer it, the
court may appoint a third person to manage the
community properties.
Support of the parties and their common
children and custody
- The support for the parties and their common
children will be taken from the absolute community
or conjugal partnership.
- If the court awards the custody of their minor
children to one spouse, the other spouse should
be given visitorial rights.