Title I

MARRIAGE

Chapter 1
Requisites of Marriage

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)

Concept of Marriage.
As a status, it is the civil status of one man and one woman legally
united for life, with rights and duties which for the establishment of families
and multiplication and education of the species are, or from time to time, may
thereafter be assigned by law to matrimony.
As an act, it is an act by which a man and a woman unite for life, with
the intent to discharge towards society and one another those duties which
result from the relation of husband and wife.

Nature of marriage.
Marriage is not like an ordinary contract, that if there is no performance
of one’s duties, an ordinary contract can be the subject of rescission; in
marriage, there is no such rescission. In marriage, the remedy of an aggrieved
spouse in case one of the spouses fails to perform his duties, to the extent of
bringing dishonor or discredit to the family is to ask for damages. In ordinary
contracts, the remedy is to ask for specific performance or rescission with
damages in both cases. Or, if one of the spouses leaves the conjugal dwelling,
the other spouse may not compel the other to return to the same since the act
of living together is a personal act which cannot be compelled by processes
of the court.
 PERSONS AND FAMILY RELATIONS Art. 1

Marriage is a permanent union. The parties cannot fix a period for its
efficacy to be ineffective after a few years, especially so that its nature,
consequences and incidents are not subject to stipulations of the parties — for
they are governed by law. Its permanent character has been taken from the
well-accepted rule that, “What God has put together, no man shall put
asunder.’’
The parties, however, may enter into an ante-nuptial agreement as to
what property relationship shall govern them during the marriage. But this
agreement shall pertain to their properties alone, and not on the incidents and
consequences as well as their marital relationship. Once the parties are
married, they cannot agree that after a few years, they will consider the
marriage void since it is not for them to decide for themselves the validity of
their marriage. They cannot agree that they will separate, that there will be no
love, no respect, no obligation to support and no fidelity, for all of these
things are all incidents of marriage. In fact, there are obligations imposed
upon them by law especially so that the Family Code provides that the
husband and wife are obliged to live together, “observe mutual love, respect
and fidelity, and render mutual help and support.’’ (Art. 68, Family Code).
To emphasize the importance of marriage to society, the Supreme Court
considered as an act of immorality, the act of a judge of cohabiting with
another woman despite the existence of a previous valid or existing marriage.
In fact, even if the first spouse has already abandoned him, he cannot just
cohabit with another woman, or get married with her without having the first
marriage annulled or declared void, for to do so would be making a mockery
of the inviolability of the marriage as a basic social institution. (MTJ-92-716,
October 18, 1995; see also Atienza vs. Brillantes, Jr., A.M. No. MTJ-92-706,
March 29, 1995, 60 SCAD 119).

In Goitia vs. Campos Rueda, 35 Phil. 252, no less than the Supreme
Court ruled that marriage partakes of the nature of an ordinary contract. But it
is something more than a mere contract. It is a new relation, the rights, duties
and obligations of which rest not upon the agreement of the parties but upon
general law which defines and prescribes those rights, duties and obligations.
Marriage is an institution, in the maintenance of which in its purity the public
policy is deeply interested. In Ramirez vs. Gmur, 42 Phil. 855, it was said that
marriage is an institution in the maintenance of which in its purity, the public
is deeply interested, for it is the foundation of the family and of society,
without which there could be neither civilization nor progress. Bishop, in his
comments on Marriage, Divorce and Separation, said that the civil status of
one man and one woman,
Art. 1 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

legally united for life, with rights and duties which for the establish-ment of
families and the multiplication and education of species are, or from time to
time may thereafter be assigned by law to matri-mony.

Well-entrenched is the rule that a husband is not merely a man who has
contracted marriage —- he is a partner who has solemnly sworn to love and
respect his wife and remain faithful to her until death. (Narag vs. Narag, 291
SCRA 451 [1998]).

Mail-Order Bride.
To emphasize the importance of marriage as a social institution and a
relationship, Congress enacted RA 6955 penalizing any person, natural or
judicial, association, club or any entity who may commit any of the following
acts:
To establish or carry on a business which has for its purpose the
matching of Filipino women for marriage to foreign nationals
either on a mail-order basis or through personal introduction;

To advertise, publish, print or distribute or cause the

advertisement, publication, printing or distribution of any
brochure, flier, or any propaganda material calculated to promote
the prohibited acts in the preceding paragraph;
To solicit, enlist or in any manner attract or induce any Filipino
women to become a member in a club or association whose
objective is to match women for marriage to foreign nationals
whether on a mail-order basis or through the per-sonal
introduction for a fee;
To use the postal service to promote the prohibited acts in
subparagraph 1. (Republic Act No. 6955, Section 2, June 13,
1990).

How a marriage may be proven.

Marriage may be proven by the marriage certificate which is the best
evidence. Any competent and relevant evidence can also prove it. Testimony
by one of the parties to the marriage or by one of the witnesses to the
marriage has been held to be admissible to prove the fact of marriage. The
person who officiated the solemnization is also competent to testify as an
eyewitness to the fact of marriage (Pugeda vs. Trias, 4 SCRA 849). In
Balogbog vs. CA (269 SCRA 259), it was held that although a marriage
contract is considered primary evidence of marriage, the failure to present it
is not proof that no marriage took place. Other evidence may be presented to
prove marriage. Testimonial evidence to prove the fact of marriage is
allowed. In Trinidad vs. CA (289 SCRA 188), where because of the
destruction of the marriage contract, testimonial evidence was accepted in its
place. (Vda. de Jacob vs. CA, G.R. No. 135216, August 19, 1999).

Presumption of marriage.
In Reyes vs. CA, et al., G.R. No. 124099, October 30, 1997, 88 SCAD
632, the Supreme Court further emphasized the presumption of marriage
when a man who executed a will instituted his wife. His illegitimate children
contested such portion of the will contending that their father never got
married during his lifetime. They wanted the woman to produce her marriage
certificate with their father and when she could not do so, they contended that
the woman could not be instituted as one of the heirs of their father. In
brushing aside their contention, the Supreme Court said that there is a
presumption of marriage. It can be proven by evidence aliunde. This is
especially so that the man instituted the wife which was even considered by
the Court as a declaration against interest. In a very eloquent language, the
Court said that a will can be considered as the testator
 PERSONS AND FAMILY RELATIONS Art. 1

talking. That is, if the will is submitted to probate, it is as if the testator is at

the witness stand talking and admitting that he was married to the woman
whom he instituted as his wife.
Marriage can be proven by evidence aliunde, that despite the fact that
the marriage certificate cannot be presented which is the best evidence of the
same, yet, it can be shown by testimonies of the sponsors, by the public and
the fact that there was baptism of children, to mention some among the many
proofs of marriage. The solemnizing officer can even be brought to court to
testify that in fact, he solemnized the marriage of the spouses.

Characteristics of Marriage.
To emphasize how society treats and considers the importance of
marriage, the Supreme Court said that marriage is not just an adventure but a
lifetime commitment. Hence, it was said in Santos vs. CA, et al., G.R. No.
112019, January 4, 1995, 58 SCAD 17, that:

“We should continue to be reminded that innate in our

society, then enshrined in our Civil Code, and even now still
indelible in Article 1 of the Family Code, is that —

“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.’’
“Our Constitution is no less emphatic:
‘Section 12. The State recognizes the sanctity of the family
life and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life of
the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral
character shall receive the support of the Government.’

‘Section 1. The State recognizes the Filipino family as the

foundation of the nation. Accordingly, it shall
Arts. 2-3 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

strengthen its solidarity and actively promote its total

development.’
‘Section 2. Marriage, as an inviolable social institution, is
the foundation of the family and shall be protected by the State.’
(Article XV, 1987 Constitution).
‘The above provisions express so well and so distinctly the
basic nucleus of our laws on marriage and the family, and they
are no doubt the tenets we still hold on to.’ (Santos vs. CA, et al.,
G.R. No. 112019, January 4, 1995, 58 SCAD 17).

Such protection is manifest from the strict interpretation of Philippine

marriage laws, such that in case of legal separation, annulment and
declaration of nullity of marriage, the State is represented by the prosecutors
to prevent the presentation of fabricated evidence or collusion between the
parties.
Along the same vein, the Supreme Court, in Republic vs. Nolasco, 220
SCRA 20 (March 17, 1993), said that spouses should not be allowed, by the
mere simple expedient that one of them left the conjugal home and never to
return again to circumvent the laws on marriage which is not an ordinary but
a special contract of permanent union. The Supreme Court in this case
considered as not serious efforts to look for a missing wife the acts of simply
asking friends or neighbors the whereabouts of his wife and sending a letter
to her former place of work and when there was no answer he asked the court
to declare her as presumptively dead. They were considered as merely
sketchy acts of looking for the missing spouse. It was said that such acts do
not warrant the declaration of presumptive death, for the law seeks to
preserve the marriage instead of wrecking it.

Article 2. No marriage shall be valid, unless these essential

requisites are present:
Legal capacity of the contracting parties who must be a
male and a female; and
Consent freely given in the presence of the
solemnizing officer. (53a)
Article 3. The formal requisites of marriage are:
Authority of the solemnizing officer;
 PERSONS AND FAMILY RELATIONS Arts. 2-4

A valid marriage license except in the cases provided

for in Chapter 2 of this Title; and
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)
Article 4. The absence of any of the essential or formal
requisites shall render the marriage void ab initio, except as
stated in Article 35(2).
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the
validity of the marriage but the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable. (n)

Legal Capacity.
Legal capacity means that the parties must have attained the age
requirement and that there should be no legal impediment to marry each
other. The minimum marriageable age is 18.
So that if a man and a woman at the age of seventeen (17) marry each
other with the consent of their parents, the marriage is void because they
must be eighteen (18) years of age as required by Article 5 of the Family
Code. They have no legal capacity.
In the same manner, if one of them has an existing valid marriage, the
marriage is void since the married party could not have had the legal capacity
to contract a second marriage because of the legal impediment to marry a
second time. In fact, even if the marriage referred to above is void, a
subsequent marriage cannot be contracted before the declaration of nullity of
the previous marriage. (Art. 40, Family Code). This is so because even a void
marriage is now a legal impediment to remarry because the law now requires
that even void marriage has yet to be declared void in a final judgment before
a person may remarry.

The concept of legal capacity here refers to the age of the parties to the
marriage as well as a situation where there should be no pre-existing
marriage of either or both parties to the marriage or what is known as legal
impediment.
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

The minimum marriageable age is 18 years (Article 5, Family Code),

so that if a party or both of them is/are below this age would contract
marriage, even with the consent of their parents, as well as all the other
requisites of marriage, the same would still be void because of lack of
capacity. Even if the marriage is celebrated abroad and valid there as such,
the same would still be void since the law that determines the validity of the
marriage of the Filipino is his/her national law. (Art. 15, New Civil Code;
Arts. 26[par. 1], 35[1], Family Code).

Illustration:
A, a man at the age of 40 and B, only 16 years of age, and
both Filipinos, met in Hongkong where B was working as an
overseas Filipino worker. They fell in love with one another and
decided to get married with all the other requisites of marriage.
The marriage is void because of lack of capacity of B, as she was
below the age of 18 at the time of the marriage. Even if the
marriage is valid in Hongkong, the same is still void in the
Philippines because the law that determines the legal capacity of
B is Philippine law as it is binding upon her even if she is living
abroad. (Art. 15, New Civil Code). While it is true that her
marriage with A is valid in Hongkong, it is still void, for again
the Family Code provides all marriages solemnized outside of 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 under Article 35(1). The
law makes reference to Article 35(1) which declares as void
marriages of Filipino citizens if anyone or both of them is/are
below 18 years even with the consent of their parents or
guardians. This void marriage cannot even be made valid by
cohabitation, for a void marriage is void. It cannot be cured by
subsequent cohabitation. There is nothing that would prevent the
spouses from renewing their marriage vows by getting married
again. The marriage would then be valid if in the meantime, they
have already reached 18 or so. But this subsequent marriage is
not going to validate the previous void marriage. It does not
cleanse the defect of the previous one.

One question may be asked: If A and B above would beget

children, what is the status of the latter? They are
 PERSONS AND FAMILY RELATIONS Arts. 2-4

illegitimates because they were born out of a void mar-riage. In

fact, they cannot even be legitimated by the subse-quent marriage
of A and B. The remedy of A and B to el-evate them to the status
of legitimate children is to adopt them, for even the parents can
adopt their illegitimate children. (Art. 185, Family Code).

Void marriage as a legal impediment to remarry.

One question has been asked: If there is a prior existing marriage of A
and B, but it is void, can anyone of them just get married?

The authors say NO. This is so because of the present rule that there is
a need to have a void marriage to be declared void. In fact, Article 39 of the
Family Code provides that the action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. Furthermore, 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.
(Art. 40, Family Code). It is therefore clear that even if a marriage is void, it
must be declared void first because the parties cannot decide for themselves
the invalidity of their marriage. In Donato vs. Luna, G.R. No. 53642, April
15, 1988, it was ruled that assuming that the first marriage was null and void
on the ground alleged by the petitioner, the fact would not be material to the
outcome of the criminal case. Parties to the marriage should not be permitted
to judge for themselves its nullity, for the same must be submitted to the
judgment of the competent courts and only when the nullity is so declared
can it be held as void. So long as there is no such declaration, the
presumption is that the marriage exists. Therefore, he who contracts a second
marriage before the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy. (See also Weigel vs.
Sempio-Diy, 143 SCRA 499; Atienza vs. Brillantes, Jr., A.M. No. MTJ-92-
706, March 29, 1995, 60 SCAD 119; Mercado vs. Tan).

Since there is a need for a prior declaration of nullity of a void

marriage, that void marriage can be considered a legal impediment to
contract a subsequent marriage because of the presumption of its validity
prior to its declaration of nullity.

Legal Impediment.
The rule that if there is an existing marriage, there can be no
subsequent valid marriage is not an absolute rule. For under Article
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

41 of the Family Code, if one of the spouses has been absent from the
conjugal dwelling for two (2) or four (4) years, depending upon the
circumstances of the absence, the present spouse may marry again, but he has
to file a summary action for the declaration of presumptive death of the
absent spouse. If there is a judgment declaring the absent spouse
presumptively dead, the present spouse can marry again. The present spouse
must not know the whereabouts of the absent spouse. After the declaration of
presumptive death, the present spouse becomes capacitated to remarry, but
the first marriage is still existing, unless it has been declared void or annulled
in a previous proceeding.
In the above-cited situation, while there was a prior marriage, the
present spouse can remarry under peculiar cicumstances, that is, were it not
for the absence of the spouse and the declaration of presumptive death, the
present spouse could not have been capacitated to contract a valid subsequent
marriage. But what the law recognizes as a valid marriage is the marriage of
the present spouse who does not know the whereabouts of the absent spouse,
for if he/she knows, then the marriage is void and bigamous.

Consent of the parties.

The consent referred to by law as a pre-requisite of a valid marriage is
the consent of the parties, not their parents. For, if there is no consent at all,
the marriage is void. If there is vitiation of consent by fraud, intimidation,
etc., then the marriage is only voidable; it is valid but it can be annulled. If
there is no consent of the parents, the marriage is only voidable until it is
annulled.

Authority of Solemnizing Officer.

The law (Art. 7, Family Code) enumerates the authorities who can
solemnize marriages. Justices of the Supreme Court, the Court of Appeals,
the Sandiganbayan can solemnize marriages all over the Philippines because
their jurisdiction covers the whole country. But a judge of the Regional Trial
Court and Municipal or Metropolitan Trial Court judges can only solemnize
marriages within their territorial jurisdiction. That is, if we have to look into
the literal provisions of the law. But the Supreme Court has liberalized the
law, saying that if a judge solemnized a marriage in a place other than his
official station, still it would be valid. The reason that, such solemnization is
only a formal requisite. A defect in a formal requisite of marriage does not go
into the validity of the marriage. But it affects
 PERSONS AND FAMILY RELATIONS Arts. 2-4

the three-fold responsibility of the solemnizing officer, like criminal, civil

and administrative responsibility.

Marriage ceremonious in character.

But let us say that A and B were legally married in 1946 in Dingras,
Ilocos Norte. In 1996, they celebrated their golden wedding anniversary in
Manila, with Mayor Wilfredo Parado, the Mayor of Dingras, solemnizing the
same at the Manila Hotel. Can we consider it valid considering that the
mayor has no authority to solemnize the marriage in Manila? The marriage is
still valid considering that it is only a marriage ceremonious in character
which does not have to comply with the requisites of a valid marriage. It is
only a renewal of their marriage vows; a mere ceremony. The rule laid down
in Navarro vs. Domagtoy does not apply. He cannot even be held liable
administratively, civilly and criminally. In this kind of marriage, license is
not even necessary.

Marriage license should be existing at the time of the marriage.

One of the requisites of a valid marriage is license. Without license, the

marriage is void. It must be exhibited at the time of the celebration of the
marriage. If it is issued thereafter, the marriage is void. This is one of the
means by which the State intervenes in the formation of the family. It must be
recalled that the Constitution recognizes the family as a Basic social
institution which is the basis of the society.

The case of Cosca, et al. vs. Hon. Lucio Palaypayon, Jr., et al., A.M.
No. MTJ-92-721, September 30, 1994, 55 SCAD 759, arose out of an
administrative case filed against the judge (Mun. Court of Tinmabac,
Camarines Sur) for solemnizing marriages without marriage licenses. The
license numbers were not reflected in the contracts and the judge did not sign
the marriage certificates for he allegedly had to wait for the marriage licenses
to be submitted by
 PERSONS AND FAMILY RELATIONS Arts. 2-4

the parties; hence, the marriage contracts were not filed with the local civil
registrar.
In fining the judge for P20,000.00, the Supreme Court said:

“On the charge regarding illegal marriages, the Family

Code pertinently provides that the formal requisites of marriage
are, inter alia, a valid marriage license except in cases provided
for therein. (Art. 3[2], Family Code). Complementarily, it
declares that the absence of any of the essential or formal
requisites shall generally render the marriage void ab initio and
that, while an irregularity in the formal requisites shall not affect
the validity of the marriage, the party or parties responsible for
the irregularity shall be civilly, criminally and administratively
liable.” (Art. 4, Family Code).

Marriage without license void.

The marriage between Angelina M. Castro and Edwin Cardenas was
without the knowledge of their parents. They called it a “secret marriage,” a
phrase unknown in law. They did not live together immediately after the
marriage, but later on lived for four (4) months; then a child was born.

Problem arose when Angelina wanted to go to the USA. As she was

trying to put in order her marital status, it was discovered that there was no
marriage license issued prior to the celebration of their marriage. This was
supported by a certification by the Local Civil Registrar of Pasig, Metro
Manila, that the alleged license cannot be located. The petition for judicial
declaration of nullity was denied on the ground that the inability of the
certifying official to locate the marriage license is not conclusive to show that
there was no marriage license issued.” The Court of Appeals reversed the
decision, hence, this petition.

In affirming the Court of Appeals decision, the Supreme Court

held:
The Civil Code (now the Family Code) provides that no
marriage shall be solemnized without a marriage license first
issued by the local civil registrar. Being one of the essential
(should be formal) requisites of a valid marriage, absence of a
license would render the marriage void ab initio. The
presentation of the certification of “due search
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

and inability to find” issued by the Registrar enjoys pro-bative

value, he being the officer charged under the law to keep a record
of all data relative to the issuance of a marriage license. The
subject matter is one of those com-monly known as “secret
marriages” a legally non-existent phrase but ordinarily used to
refer to a civil marriage celebrated without the knowledge of the
relatives and/or friends of either or both of the contracting
parties.’’ (Re-public vs. CA, et al., G.R. No. 103047, September
2, 1994, 55 SCAD 157).

Issuance of a marriage license an act of State’s intervention.

The law declares as void a marriage contracted without a mar-riage
license. One authority says that the issuance of the marriage license is the
most important, perhaps the only act whereby the State intervenes in the
formation of families. It is in the issuance of the license that the State
determines whether there are impediments in the marriage. Hence, the
marriage license should be an important requisite of marriage such that
without it, the marriage should be considered void. Another purpose of the
marriage license is to prevent hasty marriages which in some cases are
bigamous and marriages between minors without parental consent. This
purpose is difficult to attain, unless a marriage license is made an essential
requisite of marriage. (Capistrano, Civil Code of the Philippines, 1950 ed., p.
80; Niñal vs. Bayadog, supra.).

In the case of an application for a marriage license, the law requires its
publication for a period of ten (10) days in conspicuous places in the locality
before the issuance of the marriage license. The purpose here is to give notice
to the public, so that if there are interested parties who are aware of any
impediment to the prospective marriage of the applicants for a license, they
can manifest the same to the local civil registrar who shall note the same in
the application that there is an impediment to the marriage. It is also for this
purpose that the law requires an open ceremony so that, if during the
marriage ceremony, anyone may object to its proceedings if he knows of an
impediment to the marriage.

Void marriage for lack of license.

One of the basic requirements for the validity of a marriage is the
existence of a license at the time of its celebration. This is so
 PERSONS AND FAMILY RELATIONS Arts. 2-4

because the requirement and issuance of marriage license is the state’s

demonstration of its involvement and participation in every marriage, in the
maintenance of which the general public is interested. (Engrace Niñal, et al.
vs. Norma Bayadog, G.R. No. 133778, March 14, 2000, citing Perido vs.
Perido, 63 SCRA 97 [1975]). There are, however exceptions to the rule as
when a man and a woman have been living together as husband and wife
without the benefit of marriage but without legal impediment to marry each
other for a period of five (5) years prior to the day of the celebration of the
marriage. But if there was a legal impediment to marry each other during the
period of cohabitation, no matter how long it may be, the marriage, if
celebrated without a license is void. It is not enough that they have no legal
impediment to marry at the time of the celebration of the marriage, it is
necessary that during the 5-year period of cohabitation, they did not have any
legal impediment to marry. To say otherwise would be to sanction
immorality. Let us say for example, that a man lived with a woman but both
of them are legally married. The wife of the man died and immediately
thereafter, they got married without any license. During their coverture for 5
years, there was legal impediment to marry. But at the time of the celebration
of their marriage, there was impediment. To rule that their marriage is valid
without license is to sanction immorality. This is not the contemplation of the
law. The law never intends to sanction immorality.

Case:

Engrace Niñal, et al. vs. Norma Bayadog

G.R. No. 133778, March 14, 2000

Facts:
Pepito Niñal was married to Teodulfa Bellones on September 26, 1974.
Out of their marriage were born herein petitioners. Teodulfa was shot by
Pepito resulting in her death on April 24, 1985. One year and 8 months
thereafter or on December 11, 1986, Pepito and respondent Norma Badayog
got married without any marriage license. In lieu thereof, Pepito and Norma
executed an affidavit dated December 11, 1986 stating that they had lived
together as husband and wife for at least five years and were thus exempt
from securing a marriage license. On February 19, 1997, Pepito died in a car
accident. After their father’s death, petitioners filed a petition for
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

declaration of nullity of the marriage of Pepito to Norma alleging that the

said marriage was void for lack of a marriage license. The case was filed
under the assumption that the validity or invalidity of the second marriage
would affect petitioner’s successional rights. Norma filed a motion to dismiss
on the ground that petitioners have no cause of action since they are not
among the persons who could file an action for annulment of marriage under
Article 47 of the Family Code. The lower court dismissed the action on the
ground that petitioners should have filed the action to declare their father’s
marriage to respondent before his death applying by analogy Article 47 of the
Family Code which enumerates the time and the persons who could initiate
an action for annulment of marriage.

Not contented with such ruling, petitioners filed a petition for review
with the Supreme Court on a pure question of law. But to have a clear view
of the case, let us consider the following issues:
What law should govern the disposition of the case?
What is the significance of the requirement of a marriage license?

What is the length and nature of the cohabitation of the spouses

who got married without a marriage license?
Do the children in the first marriage have the personality to
question the validity of their father’s second marriage even after
his death and what for?
The Supreme Court resolved the foregoing issues and said:

“The two marriages involved herein having been

solemnized prior to the effectivity of the Family Code, the
applicable law to determine their validity is the Civil Code which
was the law in effect at the time of their celebration. (Tamano vs.
Ortiz, 95 SCAD 436, 291 SCRA 584 [1998]). A valid marriage
license is a requisite of marriage under Article 53 of the Civil
Code (Now Article 3, Family Code), the absence of which
renders the marriage void ab initio pursuant to Article 80(3)
(Now Article 4, Family Code) in relation to Article 58. The
requirement and issuance of marriage license is the State’s
demonstration of its involvement and participation in every
marriage in the maintenance of which the general public is
interested. (Perido vs. Perido, 63 SCRA 97 [1975]). This interest
proceeds from the constitutional mandate that the State
 PERSONS AND FAMILY RELATIONS Arts. 2-4

recognizes the sanctity of family life and affording protec-tion to

the family as a basic ‘autonomous social institu-tion.’ (Sec. 12,
Article II, Constitution; Hernandez vs. CA, G.R. No. 126010,
December 8, 1999, 116 SCAD 815; Tuazon vs. CA, 70 SCAD
132, 256 SCRA 158 [1996]). Specifically, the Constitution
considers marriage as an ‘inviolable so-cial institution,’ and is the
foundation of family life which shall be protected by the State.
(Sec. 2, Art. XV, Constitu-tion). This is why the Family Code
considers marriage as ‘a special contract of permanent union’
(Art. 1, Family Code) and case law considers it ‘not just an
adventure but a lifetime commitment.’” (Santos vs. CA, 58
SCAD 17, 310 Phil. 21).

However, there are several instances recognized by the Civil Code

(now the Family Code) wherein a marriage license is dispensed with, one of
which is that provided in Article 76 (now Article 34, Family Code), referring
to the marriage of a man and a woman who have lived together and
exclusively with each other as husband and wife for a continuous and
unbroken period of at least five years be-fore the marriage. The rationale why
no license is required in such case is to avoid exposing the parties to
humiliation, shame and embarrassment concomitant with the scandalous
cohabitation of persons outside a valid marriage due to the publication of
every applicant’s name for a marriage license. The publicity attending the
marriage license may discourage such persons from legitimizing their status.
(Report of the Code Commission, p. 80). To preserve peace in the family,
avoid the peeping and suspicious eye of public exposure and contain the
source of gossip arising from the publication of their names, the law deemed
it wise to preserve their privacy and exempt them from that requirement.

There is no dispute that the marriage of petitioners’ father to respondent

Norma was celebrated without any marriage license. In lieu thereof, they
executed an affidavit stating that “they have attained the age of majority, and,
being unmarried, have lived together as husband and wife for at least five
years, and that we now desire to marry each other.” The only issue that needs
to be resolved pertains to what nature of cohabitation is contemplated under
Article 76 of the Civil Code (now Article 34, Family Code) to warrant the
counting of the five-year period in order to exempt the future spouses from
securing a marriage license. Should it be a cohabitation wherein both parties
are capacitated to marry each other during the entire
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

five-year continuous period or should it be a cohabitation wherein both

parties have lived together and exclusively with each other as husband and
wife during the entire five-year continuous period regardless of whether there
is a legal impediment to their being law-fully married, which impediment
may have either disappeared or intervened sometime during the cohabitation
period?
Working on the assumption that Pepito and Norma have lived together
as husband and wife for five years without the benefit of a cohabitation as
“husband and wife” where the only missing factor is the special contract of
marriage to validate the union, in other words, the five-year common-law
cohabitation period, which is counted back from the date of celebration of
marriage, should be a period of legal union had it not been for the absence of
the marriage. This five-year period should be the years immediately before
the day of the marriage and it should be a period of cohabitation
characterized by exclusivity — meaning no third party was involved at any
time within the five years and continuity — that is unbroken. Otherwise, if
that continuous five-year cohabitation is computed without any distinction as
to whether the parties were capacitated to marry each other during the entire
five years, then the law would be sanctioning immorality and encouraging
parties to have common-law relationships and placing them on the same
footing with those who lived faithfully with their spouse. Marriage being a
special relationship must be respected as such and its requirements must be
strictly observed. The presumption that a man and a woman deporting
themselves as husband and wife is based on the approximation of the
requirements of the law. The parties should not be afforded any excuse to not
comply with every single requirement and later use the same missing element
as a pre-conceived escape ground to nullify their marriage. There should be
no exemption from securing a marriage license unless the circum-stances
clearly fall within the ambit of the exception. It should be noted that a license
is required in order to notify the public that two persons are about to be
united in matrimony and that anyone who is aware or has knowledge of any
impediment to the union of the two shall make it known to the local civil
registrar. The Civil Code provides:

“Article 63: x x x. This notice shall request all persons

having knowledge of any impediment to the marriage to advise
the local civil registrar thereof. x x x.
Article 64: Upon being advised of any alleged impediment
to the marriage, the local civil registrar shall forth-
 PERSONS AND FAMILY RELATIONS Arts. 2-4

with make an investigation, examining persons under oath. x x x”

This is reiterated in the Family Code thus:

“Article 17 provides in part: x x x. This notice shall request

all persons having knowledge of any impediment to the marriage
to advise the local civil registrar thereof. x x x”

Article 18 reads in part: x x x. In case of any impedi-ment

known to the local civil registrar or brought to his attention, he
shall note down the particulars thereof and his finding thereon in
the application for a marriage li-cense. x x x.”

This is the same reason why our civil law, past or present, absolutely
prohibited the concurrence of multiple marriages by the same person during
the same period. Thus, any marriage subsequently contracted during the
lifetime of the first spouse shall be illegal and void (Article 83, New Civil
Code; Art. 41, Family Code), subject only to the exception in cases of
absence or where the prior marriage was dissolved or annulled. The Revised
Penal Code complements the civil law in that the contracting of two or more
marriages and having of extramarital affairs are considered felonies, i.e.,
bigamy and concubinage and adultery. The law sanctions monogamy.

In this case, at the time of Pepito and respondent’s marriage, it cannot

be said that they have lived with each other as husband and wife for at least
five years prior to their wedding day. From the time Pepito’s first marriage
was dissolved to the time of his marriage with respondent, only about twenty
months had elapsed. Even assuming that Pepito and his first wife had
separated in fact, and thereafter both Pepito and respondent had started living
with each other that has already lasted for five years, the fact remains that
their five-year period of cohabitation was not the cohabitation contemplated
by law. It 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 contract. Pepito
had a subsisting marriage at the time when he started cohabiting with
respondent. It is immaterial that when they lived with each other, Pepito had
already been separated in fact from his lawful spouse. The subsistence of the
marriage even where there was actual severance of the filial companionship
between the
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

spouses cannot make any cohabitation by either spouse with any third party
as being one as “husband and wife.”
Having determined that the second marriage involved in this case is not
covered by the exception to the requirement of a marriage license, it is void
ab initio because of the absence of such element.

Mere non-recording of the marriage would not make it void.

The law requires that a license must first be issued before the
celebration of the marriage. Its recording is not a requisite for its validity. In
fact, a marriage is valid even without the marriage contract. What is
important is that, it was celebrated. The parties need not even have the
marriage contract, yet the marriage is still valid. The only purpose of the
recording of the marriage is for expediency. Its recording is not a requisite of
marriage.
In Geronimo vs. CA, et al., G.R. No. 105540, July 5, 1993, 43 SCAD
311, it was the contention of the petitioner that there was no marriage license
obtained by the spouses Esman because the copies of the marriage contract
did not state the marriage license number. Is the contention correct?

No. The flaw in such reasoning is all too obvious. This was refuted
when respondent presented a copy of the marriage contract on file with the
National Archives and Records Section where the marriage license number
does appear. The evidence adduced by the petitioner could only serve to
prove the non-recording of the marriage license number but certainly not the
non-issuance of the license itself.

If the marriage license came after the solemnization of the marriage,

the same is void. (People vs. Lara, [CA] L-12588-R, February 15, 1955).

However, even if illegally obtained, if there is a marriage license, it is

still valid. (People vs. Babu, 4506, Supp. No. 5, p. 88).

Marriages of exceptional character.

Not all marriages without marriage licenses are void. The law
recognizes the validity of certain marriages even without marriage
Arts. 2-4 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

license, like, those in Articles 27, 28, 31, 32, 33, 34 of the Family Code.

Defect in essential requisites.

The law makes a cross-reference to Article 45 which enumerates the
voidable marriages. If there is any vitiation of the consent of a party, like
fraud, violence, intimidation, undue influence, physical incapacity or
affliction with a sexually-transmissible disease or that one has not obtained
the consent of the parents, the marriage is voidable. Such defects however
may be cured if the parties freely cohabit or if the action has already
prescribed because Article 47 of the Family Code prescribes the period of
five (5) years as a rule within which the aggrieved party must move for the
annulment.

If there is irregularity in the formal requisites, that would only make the
party or parties liable criminally, civilly or administratively. An illustration of
this situation is where a party connived with the Local Civil Registrar in the
issuance of a marriage license without compliance with the 10-day
publication requirement of the application for marriage license. While this is
an irregularity, the same does not go into the validity of the marriage. If the
license was issued one
day after it was applied for, the marriage is still valid. The irregularity does
not go into the heart of the marriage, or it does not affect its validity, but it
can subject the party or even the Local Civil Registrar to criminal,
administrative liability, or civil responsibility.
Thus, in the case of Navarro vs. Judge Domagtoy, supra, it was ruled
that despite the fact that the judge who solemnized the marriage was a
resident of a municipality different from the place where he was serving as a
judge, and yet solemnized it at his residence, the Supreme Court still upheld
the validity of the marriage because the requirement of authority to solemnize
marriage is only a formal requisite of marriage, not an essential one. Any
defect in any of the formal requisites does not render the marriage void, it is
valid but without prejudice to the three-fold responsibility of the judge who
solemnized the marriage, like criminal, civil and administrative liability. The
judge was fined.

Any act that vitiates consent such as force, intimidation, or fraud does
not make the marriage void, but only voidable. But it must be recalled that an
action for annulment has to be brought within a certain period of time and by
the aggrieved party only. He who used
 PERSONS AND FAMILY RELATIONS Art. 5

the act that vitiated the consent of the other cannot later on file an action for
annulment of marriage. (People vs. Aragon, 90 Phil. 257).
While a marriage ceremony is required (Art. 6, FC), the law does not
prescribe a specific form of ceremony. What the law requires is the personal
appearance of the contracting parties before the solemnizing officer where
they have to declare that they are taking each other as husband and wife. This
is a requirement that affects the validity of the marriage if celebrated in the
Philippines because it is not possible to have a “marriage by proxy.” But if a
“marriage by proxy” is celebrated abroad and valid there as such it is valid in
the Philippines because of the doctrine of lex loci celebrationis.

In case of a marriage in articulo mortis, when the party at the point of

death is unable to sign the marriage certificate, it shall be sufficient for one of
the witnesses to the marriage to write the name of said party, which fact shall
be attested by the solemnizing officer.
Furthermore, Article 8 of the Family Code requires that the marriage
shall be solemnized publicly in the chamber of the judge or in open court, in
the church, chapel or temple, or in the office of the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in remote places
in accordance with Article 29 of this Code, or where both of the parties
request the solemnizing officer in writing in which case the marriage may be
solemnized at a house or place designated by them in a sworn statement to
that effect.
Public ceremony is necessary because the state takes active interest in
the marriage, it being an inviolable social institution. The public celebration
likewise notifies people who may know of any impediment of the parties to
marry, for the protection of the innocent party as well as the State.

Article 5. Any male or female of the age of eighteen years

(18) or upwards not under any of the impediments mentioned in
Articles 37 and 38, may contract marriage. (54a)

Rules on validity of marriage.

The marriage is valid if there is consent of the parents. Without the
consent of the parents, the marriage would only be voidable. If it is without
the consent of the parties, the marriage is void.
If the parties to a marriage are below the ages of eighteen (18), even
with the consent of their parents, the marriage would still be void. This is
because they lack the legal capacity to marry.
Art. 5 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

Note that the impediment referred to in Article 37 of the Family Code

pertains to blood relationship between the contracting parties, whether
legitimate or illegitimate.
If a grandfather marries a granddaughter, the marriage is void because
it is incestuous. This is true even if the relationship is legitimate or
illegitimate and no matter how far the relationship is. As long as the
relationship is in the direct line, the marriage is void.
The impediments in Article 38 of the Family Code also make the
marriage void by reason of public policy.
Filipinos related within the fourth civil degree of consanguinity cannot
marry in the Philippines. The marriage is void. Even if they get married
outside the Philippines where the marriage is valid there as such, the same is
void because of Articles 26 (par. 1) and 38(1) of the Family Code. What
determines the capacity to marry is the national law of the Filipino and not
the law of the place where the marriage was celebrated. Under Article 15 of
the Civil Code, laws relating to family rights and duties and to the status,
condition and legal capacity of persons shall be binding upon them even if
they are living abroad.

Reason for invalidity if below 18 of age.

The basic reason why the law requires that the parties to a marriage
must have attained the age of 18 years is that extreme youth may not lend
stability to the marriage and the family. Solidarity of the family is a concern
of the State as expressed in the Constitution making it a policy of the State to
preserve the family as a basic social institution. Marriages have failed,
families have been broken because of extreme irresponsibility of the spouses
due to age. So, the law requires some degree of maturity. In fact, the
requirement that they must be at least 18 years is a departure from the Civil
Code provisions requiring that the woman then must be at least 14 years of
age and the man 16 years of age at the time of the marriage. The framers of
the Family Code felt that the 14-16 year requirement was too low as the
parties were too young.

Illustration:

A and B, both 17 years of age, Filipino citizens, got

married. The marriage is void because of lack of capacity to
marry. This is true even if the marriage was celebrated abroad
where the marriage was valid there as such. The
 PERSONS AND FAMILY RELATIONS Art. 5

reason is that, the capacity of Filipino citizens to marry is

determined by Philippine law and not the law of the place where
the marriage was celebrated. (See Art. 15, New Civil Code).

Suppose A in the problem above was 27 years old and B

was only 17 years of age, the marriage would still be void
because the law requires that both contracting parties must have
legal capacity to contract marriage.

Gender requirement.
The law requires that the parties to a marriage must be a male and a
female. This reason is obvious, for two males or two females cannot
reproduce. It must be remembered that no less than the law itself says that
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. (Art. 1, Family Code).
When we speak of “conjugal” and “family life,” we refer to
reproduction of children as one of the purposes of marriage. In fact, Bishop,
in his commentaries on Marriage, Divorce and Separation said that marriage
is for the establishment of families, the multiplication and education of
species.
It must be recalled that one of the ends of marriage is the reproduction
or rearing of children, that is why, marriage is for the establishment of
conjugal and family life. This rule must therefore be considered with Article
68 of the Family Code which mandates among other things that the husband
and wife shall “live together.” Living together is not limited to the literal act
of living together under one roof. It is not enough that they stay together or
sleep together on one bed. Living together must be construed with the end of
marriage, that is for the establishment of conjugal and family life. The
reproduction of children and rearing the same is basic in marriage. But how
can there be reproduction of children as a rule, if there is no consented sex,
for marriage is the license to have sex with one’s spouse. Thus, if one spouse
refuses to provide sex to the other, such refusal being constant and senseless,
it can be said that he/she is refusing to perform his/her essential marital
obligation. Senseless and protracted refusal is equivalent to “psychological
incapacity,” hence, in Tsoi vs. CA, G.R. No. 119190, January 16, 1997, 78
SCAD 57, the Supreme Court declared as void the marriage of a man and a
woman when the man refused to provide sex to his wife for a period of ten
(10) months despite the marriage.
Art. 6 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

Article 6. No prescribed form or religious rite for the solemni-

zation of the marriage is required. It shall be necessary, however, for
the contracting parties to appear personally before the solem-nizing
officer and declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which shall
be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at
the point of death is unable to sign the marriage certificate, it
shall be sufficient for one of the witnesses to the marriage to
write the name of the said party, which fact shall be attested by
the solemnizing officer. (55a)

Ceremony in marriage.
The law provides that there are no prescribed forms of ceremony in a
marriage. The solemnizing officer may do it as he pleases depending upon
how he would perform it. But it is required that the parties must personally
appear before him and declare that they take each other as husband and wife.
They cannot send somebody else to declare for them that they take each other
as husband and wife. It is for this reason that one of the parties cannot
execute a special power of attorney for a friend, for the latter to appear for
him during the celebration of the marriage.

But while the law requires that there be two (2) witnesses while they
declare that they take each other as husband and wife, the absence of such
witnesses does not make the marriage void, because it is merely a formal
requirement that does not go into the validity of the marriage.

Actual marriage ceremony is necessary.

While the form of ceremony is immaterial, what is important is that,
there is actual solemnization of the marriage, otherwise, it would be void
even if it is just a formal requisite of marriage. The law says that its total
absence makes the marriage void. Hence, in Morigo vs. People, G.R. No.
145226, February 6, 2004, it was said that the marriage was void and never
existed in the eyes of the law when the parties merely signed the marriage
contract without ceremony. Their act of signing without the requisite of
marriage ceremony was merely
 PERSONS AND FAMILY RELATIONS Art. 6

a private act. There is not even a necessity to have it declared void before a
party to said marriage can contract a subsequent marriage.

Proxy marriage.
A proxy marriage in the Philippines is void if celebrated here. This is
so because the law requires the personal presence of the parties before the
solemnizing officer. Furthermore, the law requires as one of the requisites of
a valid marriage that a ceremony should take 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. (Art. 3, Family
Code).
But the question is that, if that proxy marriage is celebrated abroad and
valid there as such, is it valid in the Philippines? The answer is yes. A
scrutiny of Article 26, paragraph 1 of the Family Code says that all marriages
solemnized outside of 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 Arts. 35(1), (4), (5), and
(6), 36, 37, 38. So, if the law of the place of celebration/solemnization allows
the validity of a proxy marriage, even if it is void in the Philippines, if valid
where celebrated, it is valid here. This is so because a careful scrutiny of the
law referred to above which enumerates the void marriages even if valid
where they were celebrated, does not reveal that if the marriage abroad
between two Filipinos was by proxy, it is void in here. In that case, Philippine
law recognizes its validity by way of applying the general principle that if
valid where celebrated, it is valid here and the rule of expression unius est
exclusio alterius applies. What the law excludes, it does not include. Finally,
this is a reaffirmation of the principle that in case of doubt, the law leans
towards the validity of the marriage as a means of preserving it due to the
public policy that the State takes interest in the marriage as the foundation of
the family and society.

Declaration in a certificate.
After the solemnization of the marriage, the parties are required to sign
a marriage certificate with the two (2) witnesses. If the marriage was
solemnized under articulo mortis, one is unable to sign the certificate, the law
makes it sufficient for one of the witnesses to write the name of such party,
but such a fact must be attested by the solemnizing officer.
Art. 7 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

Article 7. Marriage may be solemnized by:

Any incumbent member of the judiciary within the
court’s jurisdiction;
Any priest, rabbi, imam, or minister of any church or
religious sect duly authorized by his 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;
Any ship captain or airplane chief only in the cases
mentioned in Article 31;
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 Art. 10. (56a)

Authority of mayors.
Mayors are now authorized to solemnize marriage. They have been
excluded by the Family Code, but they are now authorized by the Local
Government Code to solemnize marriages (Sec. 444 [as to municipal mayors]
and Sec. 455 [as to city mayors], R.A. No. 7160). A mayor of Manila cannot
solemnize a marriage in Pasay City because he has no authority there. His
authority can only be exercised in Manila. If he performs the ceremony
outside of his territorial jurisdiction, the marriage is void for lack of
authority. Even a vice – mayor, acting as mayor; or a member of the
Sangguniang Bayan can solemnize marriage because if he is an acting mayor,
he can exercise the powers of the mayor.

Illustration:
Dr. Robert Castro, the Vice-Mayor of Dingras, Ilocos Norte
was the acting Mayor when Mayor Wilfredo Parado went to
Hawaii. As acting mayor, he can exercise the powers of a mayor,
including the authority to solemnize marriages.

If both the Mayor and Vice-Mayor are abroad and Mrs.

Marjorie Baquiran, the number one member of the Sangguniang
Bayan is the acting Mayor, she can likewise
 PERSONS AND FAMILY RELATIONS Art. 7

solemnize marriages because she is also performing the duties

and functions of a mayor. In all of these cases, the marriages are
perfectly valid, as the solemnizing officer is with authority to do
so.

Marriage contracted in good faith.

A question has been asked as to whether a marriage may be valid if
solemnized by one who has no authority at all. An example is when a man
and a woman, with capacity and no legal impediment to marry, with a
marriage license go to the City Hall of Manila. A fixer approaches them and
since they are really looking for someone to solemnize their marriage, they
are brought to a room where somebody who introduces himself as a judge
solemnized their marriage. They do not know the person but they were made
to believe that he is a judge, but the truth is, he is not a judge and they relied
upon such representation. The question now is, is the marriage valid?

The answer is in the affirmative because it is a marriage contracted in

good faith. This is otherwise known as a putative marriage, one which is
ordinarily void because it lacks one of the requisites of a valid marriage, that
is, the authority of the solemnizing officer, but valid because of the good faith
of the parties of the absence of authority of the solemnizing officer. Neither
of them can question the validity of the marriage; or if one of them was aware
that the solemnizing officer had no authority, he cannot question the validity
of the marriage as he was in bad faith. The law does not allow a person to
benefit out of his own wrongdoing.

Article 8. The marriage shall be solemnized publicly in the

chambers of the judge or in open court, in the church, chapel or
temple, or in the office of the consul-general, consul or vice-con-
sul, as the case may be, and not elsewhere, except in cases of
marriages contracted at the point of death or in remote places in
accordance with Article 29 of this Code, or where both of the
parties request the solemnizing officer in writing in which case
the marriage may be solemnized at a house or place designated
by them in a sworn statement to that effect. (57a)

The law requires a public ceremony of the marriage. This is one way of
intervention by the State in order to ensure that if one knows
Art. 9 FAMILY CODE OF THE PHILIPPINES
TITLE I — MARRIAGE

of a legal impediment to the marriage, then he should manifest it to the

solemnizing officer during the celebration. If there is one who manifests such
legal impediment, the solemnizing officer would stop the ceremony.

There should be publicity of the marriage because it is of inter-est to

society and in order that any impediment to the marriage may be made
known at the very moment of its celebration. However, as publicity is not an
essential requisite, a violation of this provision will not render the marriage
void. (Capistrano, Civil Code of the Philippines, 1950 ed., p. 82).

Even as the law requires that the marriage ceremony be made public as
it must be done publicly in the chambers of the judge, or in open court, in the
church, chapel or temple, yet, if there is a written request of the parties that it
be solemnized elsewhere in a sworn statement, the same can be done. An
example is a situation where the parties requested that it be solemnized at a
function room of the Manila Hotel, then, it can be solemnized therein. Again,
even if there is no such request, or even if it is not in writing or it is not in a
sworn statement, still the marriage is valid as such requisite is not an essential
one. The total absence of the same does not go into the validity of the
marriage.

Let us say for example that the marriage of A and B was solemnized by
the mayor at the town plaza without any request and during the period of the
political campaign, the marriage is valid provided that all the essential
requisites are present. Even if no request was made, it is still valid as the
failure to comply with that formal requirement does not affect the validity of
the marriage.

Article 9. A marriage license shall be issued by the local

civil registrar of the city or municipality where either contracting
party habitually resides, except in marriages where no license is
required in accordance with Chapter 2 of this Title. (58a)

The law requires that the marriage license shall be issued in the place of
habitual residence of the parties. This is a formal requirement that a violation
of the same does not render the marriage void. It is merely an irregularity
which if committed may result in the liability of the Local Civil Registrar
who issued it knowing that the applicants for a marriage license do not reside
in the place where they applied for a license.
 PERSONS AND FAMILY RELATIONS Arts. 10-11

Illustration:

A and B, both residents of San Pedro, Laguna, ap-plied for

and were issued a marriage license in Biñan, Laguna. It appears
to be violative of Article 9 of the Fam-ily Code, but since it is
merely a formal requirement, the marriage would still be valid if
celebrated with the use of that license.

There is however, an exception to the rule, that is, when the

marriage is one of exceptional character where there is no need
for a marriage license.

Article 15. Any contracting party between the age of twenty-one

and twenty-five shall be obliged to ask their parents or guardian for
advice upon the intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage license shall not be
issued till after three months following the completion of the
publication of the application therefor. A sworn statement by the
contracting parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be attached to
the application for marriage license. Should the parents or guard-
ian refuse to give any advice, this fact shall be stated in the
sworn statement. (62a)

Under Article 15 of the Family Code, if the parties are between the
ages of 21 and 25, they need parental advice. It provides too that if not
secured or if unfavorable, the marriage license shall not be issued until after
three (3) months following the publication of the application for marriage
license. They are also required to state those facts in an affidavit.

If the marriage license is issued without waiting for the lapse of the
three-month period, still the marriage is valid, but the party and the public
officer effecting such issuance may be subjected to criminal and
administrative responsibility.
The parties are also required to attach to their application for a marriage
license a certification that they have undergone marriage counseling before a
duly accredited agency. Failure to attach it shall cause the suspension of the
issuance of the marriage license for a period of three (3) months.