FAMILY CODE

(as amended)
ATTY. ALBINO (ALVIN) V. GONZALES
Dean, College of Law
Chairman, Peoples Law Enforcement Board 1988-2013
President, Trial Lawyers Association of the Philippines
(Pangasinan Chapter)
Rotary District Governor 1999-2000
MARRIAGE
special contract
permanent union
between man & woman
entered into in accordance with law
for the establishment of conjugal & family life
I. Aspects
1. As a contract
only man & woman can enter
permanent only death can extinguish
rights & obligations not subject to stipulations but fixed by law
except marriage settlement on property regime
breach results in penal & civil sanctions.
2. As a status
inviolable social institution
foundation of family
institution of public order or policy
implication in two fields:
a) personal rights
b) property relations
II.Requisites
A. Essential requisites:
1. Legal capacity of parties, 18 age, male & female, no impediments in Arts.
37 or 38
2. Consent freely given in the present of solemnizing officer.
B. Formal requisites:
3. Authority of solemnizing officer
4. Marriage ceremony (no form or rites required)
What is only required are:
a. Appearance of parties before solemnizing officer
b. Personal declaration that they take each other as husband or wife
c. In presence of two witnesses of legal age.
***If there was no marriage ceremony, as when the parties merely signed a marriage
contract without the presence of the solemnizing officer, there is no marriage to speak
of, since there is no actual marriage ceremony performed between the parties by the
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solemnizing officer, hence, there is no need to file a summary proceeding to declare the
marriage void. (Morigo vs. People, 476 SCRA 562 (2005)
5. Valid marriage license, except:
a. Marriage in articulo mortis (either or both, even if survived)
b. Residence of either is so located that no means of transportation to appear
before local civil registrar (remote place)
c. Marriage among muslims or members of ethnic cultural communities,
according to customs rites & practices
d. Marriage between man & woman who have cohabited for five years
without legal impediment to marry.
e. Celebrated in country where no marriage license is required
Validity of marriage license - 120 days from issuance
Can be used anywhere in the country
Automatically cancelled if not used upon the expiration of expiry date
stamped on the face of the marriage license
Absence of essential and formal requisites:
Marriage void except: belief in good faith of parties that party solemnizing is duly
authorized
Examples absence of essential requisites:
1. Lack of age below 18
2. Parties of same sex
3. Prohibited by law to marry each other
4. Absence of consent marriage in jest
Examples of absence of formal requisites:
1. Person solemnizing has no authority except believed to be duly authorized
2. No marriage license, unless excepted
3. Expired marriage license
4. Absence of marriage ceremony.
Defect in essential requisites:
Marriage voidable
Examples:
1. Lack of parental consent
2. Consent obtained by fraud
3. Consent obtained by force
Irregularity in formal requisites:
Marriage valid, but party responsible shall be civilly, criminally &
administratively liable
Examples:
1. Marriage license not applied for in place specified
2. Marriage license signed by mere employee of LCR with his authority, if without
void
3. 10-day posting not complied with
4. No requirements on parental advice, marriage counselling or family planning
seminar
5. No witness to marriage.
MARRIAGE CONTRACT
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signed by both parties and attested by solemnizing officer.

In case of marriage in articulo mortis, if party is unable to sign marriage certificate,

one of the witness can write the name of the party, attested by the solemnizing officer.
***The mere private signing of a marriage contract bears no semblance of a valid
marriage, and thus, need no judicial declaration of nullity. (Morigo, supra)

MARRIAGE CERTIFICATE
not an essential or formal requisite but best proof of marriage.
Copies to be given as follows:
1. Original to the parties
2. Duplicate and triplicate to the LCR of place of marriage within 15 days after
marriage
3. Quadruplicate retained by the officer.
In Sevilla vs. Cardenas, 497 SCRA 428, the certification issued by the Civil Registry of
San Juan to the effect that no marriage licence No. 2770792 was ever issued by this
office was presented as evidence to prove the absence of marriage license for the
purpose of declaring the marriage void. Is the certification sufficient?
No. The certification to be issued by the local civil registrar must categorically state that
the document does not exist in this office or the particular entry could not be found in
the register despite diligent search. Such certification shall be sufficient proof of lack or
absence of record stated in Section 28, Rule 132 of the Rules of Court.
Persons authorized to solemnize marriage:
1. Incumbent members of the judiciary (within jurisdiction)
2. Priests, etc., authorized by church, registered in the civil registrar general, acting
within limits of written authority granted by church, one or both contracting
parties belongs to the officers church
3. Ship captain or airplane chief (at sea, in flight, for entire voyage)
4. Military commander of a unit (in articulo mortis within zone of military
operation in the absence of Chaplain)
5. Consul-general, consul or vice-consul in case of marriage between Filipino
citizens abroad
6. Mayor.
Marriages solemnized outside the country
valid there as such shall also be valid in this country, except:
1. Art. 35 (1) no legal capacity to get married
2. Art. 36 party psychologically incapacitated
3. Art. 37 incestuous marriage
4. Art. 38 marriage void by reason of public
In the case of Republic vs. Orbecido III, (472 SCRA 114), the Court held that in applying
the provision of the 2nd paragraph of Art. 26 FC, the reckoning point is not the
citizenship of the divorcing parties at birth or at the time of marriage, but their
citizenship at the time a valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.

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Thus, where both parties were Filipino citizens at the time of the celebration of the
marriage, but later on, one of them was naturalized as foreign citizen and a valid
divorce decree, Art. 26 (slide is blurred)
***In case a divorce was obtained by a foreigner-spouse capacitating him/her to
remarry, the Filipino spouse shall likewise have the capacity to remarry under
Philippine law. (E.O. No. 227, July 17, 1987)
If the parties falsified their affidavit stating therein that they had lived as husband and
wife for at least five years prior to the marriage to exempt themselves from the
requirement of a marriage license, when in truth and in fact, they have fallen short of
the minimum five year requirement, will they be stopped from questioning the validity
of their marriage or may the marriage be still declared void on ground of lack of a valid
marriage license?
The Court held that the falsity of an affidavit of marital cohabitation, where the parties
have in truth fallen short of the minimum five-year requirement, effectively renders the
marriage void ab initio for lack of marriage license. The falsity of the allegation in the
affidavit, which would have qualified their marriage as an exception to the requirement
of a marriage license, cannot be a mere irregularity, for it refers to the quintessential fact
that the law precisely required to be deposed and attested by the parties under oath.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year
common-law cohabitation period under Art. 76 means a five-year period computed back
from the date of celebration of marriage, and refers to a period of legal union had it not
been for the absence of a marriage. It covers the years immediately preceding the day of
the marriage, characterized by exclusivity-meaning no third party was involved at
anytime within the five years- and continuity that is unbroken (Republic vs. Jose A.
Dayot, GR No. 175581, March 28, 2008).
***If the essential matter in the sworn affidavit is a lie, then it is a mere scrap of paper,
without force and effect. Hence, it is as if there was no affidavit at all.

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