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CHAPTER 1 - MARRIAGE
Articles 1. Marriage is a special contract of permanent
union between a man and woman entered into in
accordance with the law for the foundation of the
family and the inviolable social institution whose
nature, consequences, and incidents are governed by
the 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.
DEFINITION
-Marriage as an inviolable soical institution, is the foundation
of the family and shall be protected by the states (Article 15,
Sec. 2). It creates a social status or relation between
contracting parties, which not only they, but the state as well,
are interested.
Marriage is a special contract , differs from the ordinary
contract in the following aspects:
a. marriage is governed by the family code.
b. marriage is an inviolable social institution while the
latter is not;
c. marriage is not subject to stipulations between the
parties except to marriage settlement while an
ordinary contract is primarily governed by the
stipulation of the parties.
d. In marriage, there a only two parties, and one must
be male and the other is female. In the Ornidary
contract, there could be many parties and gender of
the parties is immaterial.
e. Marriage is terminated by death or annulment due to
legal causes while the ordinary contract is
terminated upon expiration of the term of the
contract, upon fulfilment of the conditions for which
it entered into, rescission, or upon mutual agreement
of the parties.
Conjugal property
Community property
Complete separation of property.
ILLUSTRATIVE CASES
REPUBLIC VS. CAGANDAHAN 565 SCRA 72
Jennifer had sex organs of both male and female.
(intersex)
When Jennifer grew, he decided to correct his birth
certificate.
SC ruled that a person who is intersex is determined
by the person upon the age of majority and not at
birth.
Take Note: Cases during the Marcos Regime
SILVERIO VS. REPUBLIC G.R. NO. 174689
Sex reassignment surgery does not change gender.
In the case of silverio there was no typographic error
in the entries of the birth certificate thus there was
no legal basis.
STAR PAPER CORP. VS. SIMBOL G.R. NO. 164774
stipulation of company policy, prohibiting employees
from marrying each other is an invalid exercise of
management.
SC ruled in favour of the employee.
DUNCAN VS. GLAXO G.R. NO. 162994
prohibition to marry an employee of a competing
company stipulated in the employment contract is
valid because under the reasonable circumstances of
relationship of employees may prejudice the interest
of the company.
- Duncan was reassigned to Mindanao which tantamount
to constructive dismissal.
SC ruled in favour of the Glaxo because of valid and
bonafide reason.
Articles 2. No Marriage shall be valid, unless these
requisites are present:
1.
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2.
Exception :
In cases of articulo mortis:(exceptional circumstances)
The solemnizing officer must endeavour to ascertain
the ages, relationship of the contracting parties, and the
absence of legal impediments to marry except from the
requirements of a marriage license. (art. 34)
NOTES
2 ESSENTIAL REQUISITES:
1. legal capacity to marry
2. consent freely & voluntarily given
3 FORMAL REQUISITES:
1. Authority of solemnizing officer (Art. 7)
2. Valid marriage license
3. Marraige ceremony
-legal capacity for mAan and woman is 18 years old and
above (age of majority under under R.A. 6809)
-must be of opposite sex and does not have legal
impediments mentioned in Article 37 and 38 of the family
code.
-consent must be free & voluntary and if consent is vitiated,
the marriage is voidable under Article 45 of the Family Code.
-the consent must be done by personal appearance in the
presence of the solemnizing officer.
Take Note:
Proxy is not valid in marriage.
Articles 3. The Formal requisites of marriage are:
1.
2.
3.
THE
NOTES
-marriage by proxy in the Phils. Is not valid because of
absence of consent.
-only duly authorized persons by the Family Code (art. 7) can
be allowed to solemnized marriages. It is not the duty of the
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or defect in the consent to the marriage. This is governed by
Articles 45 and 46 of the Family Code.
-Irregularities in the formal requisites do not affect the validity
of the marriage but the person responsible for such
irregularity can be held civilly, criminally or administratively.
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Art. 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
Chapter 2 of this Title.
Art. 10 Marriages between Filipino citizens abroad
may be solemnized by a consul-general, consul or viceconsul of the Republic of the Philippines. The issuance
of the marriage license and the duties of the local civil
registrar and of the solemnizing officer with regard to
the celebration of marriage shall be performed by said
consular official. (75a)
-
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administer oaths. The personal manifestation shall be
recorded in both applications for the marriage license,
and the affidavit, if one is executed instead, shall be
attached to said application. (61a)
Philippines (Art. 21 ).
NOTES
longer needed in the following instances: (1.) if the parents of
the party concerned will personally appear before the local
civil registrar and attest to the fact that said party is already
of legal age; (2.) When the local civil registrar shall, by merely
looking at the personal appearance of the party, be convinced
that he/she is already of legal age; (3.) When the party has
been previously married;
4. When the party is between the ages of eighteen and twenty
one, parental consent is required. Absence of parental consent
renders the marriage voidable, meaning it is valid until
annulled (Art. 45 par. 1). Preference is given to the father to
give consent, otherwise, the mother, surviving parent or
guardian or persons having legal charge of them in the order
mentioned shall give the consent.
5. Parental advice is required if a party is between the ages of
twenty one and twenty five. Absence of parental advice does
not affect the validity of marriage. Its only effect is that the
local civil registrar may withhold the issuance of the marriage
license till after three months following the completion of the
publication of the application (Art. 15).
6. In cases where parental consent or parental advice is
required, the parties must first undergo marriage counselling
and attach to their application for marriage license a
certification that they have already undergone marriage
counselling. This certificate shall be issued by the persons
authorized to solemnize marriage or by any marriage
counsellor duly accredited by the proper government agency.
Failure to attach said certificate shall cause the suspension of
the issuance of the marriage license for a period of three
months. Issuance of the license in violation of this provision
does not affect the validity of the marriage, but, the local civil
registrar may be held administratively liable (Art. 16).
Duty of the Local Civil Registrar:
Art. 17- The local civil registrar shall prepare a notice
which shall contain the full names and residences of
the applicants for a marriage license and other data
given in the applications. The notice shall be posted
for ten consecutive days on a bulletin board outside
the office of the local civil registrar located in a
conspicuous place within the building and accessible to
the general public. This notice shall request all persons
having knowledge of any impediment to the marriage
to advise the local civil registrar thereof. The marriage
license shall be issued after the completion of the
period of publication. (63a)
Art. 18- In case of any impediment known to the local
civil registrar or brought to his attention, he shall note
down the particulars thereof and his findings thereon
in the application for a marriage license, but shall
nonetheless issue said license after the completion of
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the period of publication, unless ordered otherwise by
a competent court at his own instance or that of any
interested party. No filing fee shall be charged for the
petition nor a corresponding bond required for the
issuance of the order. (64a)
Art. 19- The local civil registrar shall require the
payment of the fees prescribed by law or regulations
before the issuance of the marriage license. No other
sum shall be collected in the nature of a fee or a tax of
any kind for the issuance of said license. It shall,
however, be issued free of charge to indigent parties,
that is, those who have no visible means of income or
whose income is insufficient for their subsistence, a
fact established by their affidavit, or by their oath
before the local civil registrar. (65a)
1. Upon receipt of the application for marriage license, it is the
duty of the local civil registrar to immediately post a notice to
inform the public of the impending marriage. The notice shall
be posted in the bulletin board outside the office of the local
civil registrar for ten consecutive days. The notice shall
request all persons having knowledge of any impediment to
the marriage to inform the local civil registrar about it. The
marriage license shall be issued only after the lapse of the ten
day period of publication. Should the local civil registrar issue
the license before the lapse of the ten day period, he can be
held administratively liable but the marriage will remain valid.
2. If the local civil registrar is informed of any legal
impediment of a party applying for a marriage license he shall
note down the particulars thereof, but he could no longer
refuse the issuance of the license. Even if he is made aware of
the impediments he must still issue the license except if he is
restrained by the court at his own instance or of any
interested party.
3. The local civil registrar shall collect payment of fees for the
issuance of the marriage license in the amount of P300.00.
However, it shall be issued free of charge to indigent parties.
Life of the Marriage License:
Art. 20- The license shall be valid in any part of the
Philippines for a period of one hundred twenty days
from the date of issue, and shall be deemed
automatically cancelled at the expiration of said period
if the contracting parties have not made use of it. The
expiry date shall be stamped in bold characters at the
face of every license issued. (65a)
Certificate of Legal Capacity to Marry:
Art. 21- When either or both of the contracting parties
are citizens of a foreign country, it shall be necessary
for them before a marriage license can be obtained, to
submit a certificate of legal capacity to contract
marriage, issued by their respective diplomatic or
consular officials.
Stateless persons or refugees from other countries
shall, in lieu of the certificate of legal capacity herein
required, submit an affidavit stating the circumstances
showing such capacity to contract marriage. (66a)
NOTES
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prepare the documents required by this Title, and to
administer oaths to all interested parties without any
charge in both cases. The documents and affidavits
filed in connection with the applications for marriage
licenses shall be exempt from documentary stamp tax.
(n)
Art. 25- The local civil registrar concerned shall enter
all applications for marriage licenses filed with him in a
registry book strictly in the order in which the same
are received. He shall record in the said book the
names of the applicants, the date on which the
marriage license was issued, and such other data as
may be necessary. (n)
NOTES
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was solemnized, can never be considered as valid in the
Philippines, to wit:
Art. 41;
declared judicial
a.) If the party who is a Filipino is below 18 years old;b.) If the
marriage is bigamous or polygamous not falling under
c.) If contracted through mistake of identity of the other party;
d.) If the party whose previous marriage has been annulled or
void, contracts a second marriage but failed to record the
71
and 53);
36);
decree with the LCR, to partition their conjugal properties,
deliver the presumptive legitime of their children (Art.
e.) Where one of the party is psychologically incapacitated
(Art.
f.) Marriages considered incestuous (Art. 37);g.) Marriages
that are against public policy (Art. 38);
3. A marriage validly solemnized abroad shall always be
considered as valid here for as long as it does not fall under
the exceptions mentioned in Article 26 par. 1 of the Family
Code. Thus, a marriage without a license, a marriage
solemnized by a person not authorized to solemnize marriage
under Art. 7 of the Family Code, or a marriage by proxy, if
considered valid in the country where it was celebrated, shall
also be considered as valid here in the Philippines. This is so
because these marriages are not among the void marriages
mentioned in the exceptions to the lex loci celebraciones rule;
4. Some countries recognize common law marriages as valid.
This kind of marriage between Filipinos, however, cannot be
considered as valid here because Article 26 speaks of
marriages
solemnized
abroad.
The
word
solemnize
presupposes the performance of a marriage ceremony which
is wanting in a common law marriage.
5. As a general rule, absolute divorce obtained by a Filipino
spouse abroad is not recognized as valid here because we
adhere to the nationality theory under Article 15 of the Civil
Code. A person is governed by his national law wherever he
may go when it comes to family rights and duties, status,
conditions and legal capacity is concerned. This is true even if
the other spouse is not a Filipino;
6. In case of marriage between a Filipino and a foreigner
(mixed marriage), and it is the foreigner spouse who obtained
a divorce abroad against the Filipino spouse, capacitating him
to remarry, the said divorce will be recognized here to
capacitate the Filipino spouse to remarry (see: Article 26 par.
2 as amended). The recognition of the divorce obtained by the
foreigner spouse was intended to correct the very unfair
situation created by the former law wherein even if the alien
spouse has already divorced his Filipino spouse and is already
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solemnized without the presence of witnesses who are of legal
age and such marriage is considered null and void in the
country where it was celebrated, then it is also considered
void here and a case to declare the marriage void may be
filed in our court. This is true even if the said kind of marriage
would have been valid here.
11. A divorce decree obtained by a former Filipina citizen who
has now acquired American citizenship is recognized as valid
here in the Philippines if sufficiently proven or established as a
fact. Her filing an action to declare the nullity of her marriage
to her husband on the ground of the latters psychological
incapacity under Article 36 of the Family Code is no longer
tenable. Given the validity and efficacy of divorce secured by
her, the same shall be given a res judicata effect in this
jurisdiction. As an obvious result of the divorce decree
obtained, the marital vinculum between Rebecca and Vicente
is considered severed and they are both freed from the bond
of matrimony. Therefore, the petition under Article 36 is
dismissible for lack of cause of action (Bayot vs. Court of
Appeals, G.R. No. 155635/163979, November 7, 2008).
Chapter
2MARRIAGES
REQUIREMENT
EXEMPT
FROM
A.
B.
Art. 27- In
contracting
case
either
or
both
LICENSE
of
the
or
members
of
ethnic
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1. The Code of Muslim Personal Laws of the Philippines which
was signed into law on February 4, 1977 is the governing law
on persons and family relations among Muslims. Under the
said law, marriage license is not required for the validity of the
marriage among Muslims. However, the Family Code qualified
it by saying that marriages among Muslims do not need a
marriage license provided it is done in accordance with their
customs, rites or practices. This rule also applies to marriages
among members of the ethnic cultural communities. It is
necessary, however, that the parties to the marriage must be
both Muslims or both members of the ethnic cultural
communities because of the use of the word among. If it is a
mixed marriage, then the requirement of a marriage license
cannot be dispensed with.
marriages
not
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6) Those subsequent marriages that are void under
Article 53.
NOTES
1. There are two kinds of defective marriages, and these are
the Void and the Voidable Marriages. The basic distinction
between these two types of defective marriages are the
following: (1.) Void marriages are defective from the very
beginning and cannot be ratified unlike Voidable marriages
which are ratifiable; (2.) A void marriage can be attacked
collaterally while a voidable marriage can only be attacked
directly. This means that the nullity of a void marriage can be
raised even after the death of the parties while a voidable
marriage can only be questioned during the lifetime of the
parties; (3.) The action to declare the nullity of a void
marriage is imprescriptible while the action to annul a
voidable marriage prescribes; and (4.) As a general rule, a
void marriage can only be assailed by the parties to the
marriage ( See: A.M. No. 02-11-10 S.C., Sec. 2(a)) while a
voidable marriage can be questioned by other persons like the
parents of a party as in the case of a marriage without
parental consent.
2. Void marriages under Article 35 are those marriages which
are defective because they fail to comply with the essential
and formal requisites of marriage under Articles 2 and 3. A
marriage contracted by a party below 18 years of age is void
because of the absence of legal capacity which is one of the
essential requisites for the validity of the marriage. Those
solemnized by a person not authorized to solemnize marriage
and those marriages solemnized without a license are also
st
nd
void because of the absence of the 1 and the 2
formal
requisites of marriage. Likewise, bigamous and polygamous
marriages, those contracted by mistake, and subsequent
marriages under Article 53 are considered void.
3. Collateral attack of a void marriage simply means that
the nullity of the marriage is not the principal or main issue of
the case but it is necessary to the resolution of the main case.
For example, in a case for the settlement of the estate of a
deceased person where there are several claimants and one
claimant claims that the other group of claimants are not
legitimate children because the marriage of their mother to
the deceased is not valid, the court may pass upon the issue
of nullity of the marriage to determine whether or not said
claimants are really illegitimate. This is necessary because if
the court finds that these claimants are illegitimate because
the marriage of their mother to the deceased is void, then,
they will receive less than the legitimate children. There is no
need here to produce proof of a prior judicial declaration of
nullity of marriage because evidence other than judicial
decision of nullity of marriage can be presented to establish
the illegitimacy of some claimants (Domingo vs. Court of
Appeals, 226 SCRA 572).
4. The validity of a void marriage may be collaterally attacked
in an action for support. Thus, the alleged father of the child
demanding support may raise the issue that there is no valid
marriage between the defendant and the mother of the child,
and that the child is not his to avoid giving support to the
child. Other than for purposes of remarriage, no judicial action
is necessary to declare a marriage an absolute nullity. In the
case of Ninal vs. Bayadog, the Court ruled that for other
purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that
matter, the Court may pass upon the validity of marriage
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absence of definition was deliberately done because the
situations contemplated by the law vary from one case to
another. In the words of Justice Caguioa, the code should not
have so many definitions, because a definition straight-jackets
the concept and, therefore, many cases that should go under
it are excluded by the definition.
2. Psychological incapacity is not insanity or mental illness. It
refers to the inability of a party to the marriage to comply with
the essential marital obligations because of psychological
reason. It is neither a physical defect because a person who is
psychologically incapacitated is one who cannot perform the
essential marital obligations as he/she simply refuses to
perform these obligations although physically capable of
doing so due to psychological causes. It refers to lack of
appreciation of ones marital obligation and has nothing to
do with consent. An insane person does not know what he is
doing while a psychologically incapacitated person is aware of
what he is doing but he simply cannot perform his/her
essential marital obligations because of psychological
reasons. Psychological incapacity simply refers to the lack of
appreciation of ones marital obligation.
3. Psychological Incapacity has three essential characteristics
and they are: (1.) Juridical antecedent, (2.) Gravity, and (3.)
Incurability. For the defect of a party to the marriage to be
considered a form of psychological incapacity, it must already
be existing at the time of the celebration of the marriage
(Juridical antecedent). It must be a very serious defect
(Gravity), and it is not curable (Incurability). Thus, from the
foregoing elements it is quite clear that the intendment 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.
4. This provision was lifted from Canon 1095 of the Canon
Law. Thus, the decisions of the matrimonial tribunal of the
Catholic Church involving psychological incapacity as a
ground to annul the marriage is greatly helpful and persuasive
to our civil courts. Although our courts are not bound by the
decisions of the matrimonial tribunal, said decision can be
used by our civil courts as a guide in the determination of the
existence of psychological incapacity.
5. A wife who turns out to be a nymphomaniac or a husband
who is homosexual is a good example of psychological
incapacity. Any form of inability of a party to perform the
essential marital obligations because of some psychological
causes is a ground to nullify the marriage under Article 36.
6. The action to declare the marriage void on the ground of
psychological incapacity can be filed even by the
incapacitated party. The law does not prohibit the guilty party
from bringing the action in court as a void marriage is not
ratifiable and the pari delicto rule will not apply here.
Moreover, a party who is declared psychologically
incapacitated by the court may still contract a second
marriage as this ground is a very personal and limited one. It
does not mean that just because a person is psychologically
incapacitated to perform his or her marital obligations with his
or her present spouse, he/she will also be psychologically
incapacitated with any other partner. This rule is best
illustrated in the case of Halili vs. Halili and Republic, G.R. No.
165424, June 9, 2009, where it was the petitioner who claims
that he is the one who is psychologically incapacitated. The
trial court granted the petition on the ground that petitioner is
suffering from a mixed personality disorder, particularly
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- The first case was decided by the Supreme Court involving
Article 36, the case of Santos vs. Court of Appeals, G.R. No.
112019, Jan. 4, 1995, where the Supreme Court ruled that
failure of the wife to return home and communicate does not
constitute psychological incapacity.
- A mere showing of irreconcilable differences and
conflicting
personalities
in
no wise constitute
psychological incapacity. (Choa vs. Choa, G.R. No. 143376,
November 26, 2002) .
- Disordered personality is not a ground for declaring a
marriage void. Sexual Infidelity or perversion and
abandonment do not constitute psychological incapacity
(Dedel vs. Court of Appeals, G.R. No. 151867, January 29,
2004).
- An unsatisfactory marriage is not a null and void
marriage. Whether or not psychological incapacity exists
depends crucially on the facts of the case (Siayngco vs.
Siayngco, G.R. No. 158896, October 27, 2004).
- The rule on psychological incapacity applies even if
the spouse is a foreigner. The foreigner husbands act of
abandonment is doubtlessly irresponsible but it was never
alleged nor proven to be due to some kind of psychological
illness (Republic vs. Lolita Quintero-Hamano, G.R. No. 149498,
May 20, 2004).
12. The jurisprudential guidelines in determining the existence
of psychological incapacity was laid down by the Supreme
Court in the case of Republic vs. CA and Molina, G.R. No.
108763, Feb. 13, 1997, and they are as follows:
a.) The burden of proof to show the nullity of marriage
belongs to the plaintiff.
b.) The root cause of psychological incapacity must be
medically or clinically identified, alleged in the complaint,
sufficiently proven by experts, clearly explained in the
decision.
c.) The incapacity must be proven to be existing at the time of
the celebration of the marriage, although it becomes manifest
only after the celebration ofmarriage.
d.) The incapacity must be shown to be medically or clinically
permanent or incurable.
e.) The illness must also be grave enough to prevent the party
from assuming the essential marital obligations.
f.) The essential marital obligations must be those mentioned
in Title III (Articles 68 to 71) of the Family Code, as well as
Articles 220, 221 and 225.
g.) The interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the Philippines,
while not controlling or decisive should be given great respect
by our courts.
h.) The trial court must order the prosecuting attorney or
fiscal and the solicitor General to appear as counsel for the
State. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement
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a.) Hypersexuality-Nymphomania
b.) Hypersexuality-Satyriasis
c.) Homosexuality
d.) Lesbianism
f.) Schizophrenia
g.) Affective Immaturity
h.) Anti-Social Personality Disorder
i.) Dependent Personality Disorder
j.) Vaginismus or Psychic impotence
k.) Sexual Disorder
l.) Psychoneurosis
m.) Lack of Interpersonal Integration
n.) Immature Personality
o.) Obsessive-Compulsive Personality
p.) Frigidity
q.) Alcoholism and Gambling
r.) Liar, cheat and swindler
s.) Sexual Neurosis
t.) Hysterical Personality
u.) Psychic Immaturity
17. The Court in Te vs. Te clarified, thus, no case is on all
fours with another case as far as psychological incapacity as
a ground for declaring the nullity of marriage is concerned.
Lest it be misunderstood, we are not suggesting the
abandonment of Molina in this case. We simply declare that,
as aptly stated by Justice Dante O. Tinga in Antonio vs. Reyes ,
there is need to emphasize other perspectives as well which
should govern the disposition of petitions for declaration of
nullity of marriage under Article 36. At the risk of being
redundant, we reiterate once more the principle that each
case must be judged, not on the basis of a priori assumptions,
predilictions or generalizations but according to its own facts.
And, to repeat for emphasis, court should interpret the
provision on a case-to-case basis; guided by experience, the
findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals.
18. Although in Marcos vs. Marcos, G.R. No. 136490, Oct. 19,
2000, the Supreme Court ruled that it is not necessary to
present an expert witness, the Court ruled in Te vs. Te that the
presentation of an expert testimony is very important. It
added that, by the very nature of cases involving the
application of Article 36, it is logical and understandable to
give weight to the expert opinions furnished by psychologists
regarding the psychological temperament of parties in order
to determine the root cause, juridical antecedence, gravity
and incurability of the psychological incapacity. Courts must
not discount but, instead, must consider as decisive evidence
the expert opinion on the psychological and mental
temperaments of the parties. The Supreme Court even finds it
fitting to suggest the inclusion in the Rule on Declaration of
Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages, an option for the trial judge to refer the case to a
court-appointed psychologist/expert for an independent
assessment and evaluation of the psychological state of the
parties. This will assist the courts, who are no experts in the
field of psychology, to arrive at an intelligent and judicious
determination of the case.
19. The application of the Molina Doctrine to cases that were
filed before the said doctrine was promulgated by the
Supreme Court in 1997 is not contrary to the principle of stare
decisis. Citing the cases of Pesca vs. Pesca and Antonio vs.
Reyes, the Court ruled that the interpretation or construction
of a law by courts constitutes a part of the law as of the date
the statute is enacted. It is only when a prior ruling of this
court is overruled, and a different view is adopted, that the
new doctrine may have to be applied prospectively in favor of
parties who have relied on the old doctrine and have acted in
good faith, in accordance therewith under the familiar rule of
lex prospicit, non respicit. The Court clarified that the Molina
doctrine was not abandoned by the Ting vs. Ting case as it
merely declared in the said case that, in hindsight, it is
inappropriate for the Court to impose a rigid set of rules, as
the one in Molina, in resolving all cases of psychological
incapacity. We said that instead of serving as a guideline,
Molina unintentionally became a straightjacket, forcing all
cases involving psychological incapacity to fit into and be
bound by it, which is not only contrary to the intention of the
law but unrealistic as well, because with respect to
psychological incapacity, no case can be considered as on all
fours with another. Coming now to the main issue, the Court
finds the totality of evidence adduced by respondent
insufficient to prove that petitioner is psychologically unfit to
discharge the duties expected of him as a husband. In this
case, respondent failed to prove that petitioners defects were
present at the time of the celebration of their marriage.
(Benjamin Ting vs. Carmen Velez-Ting, G.R. No. 166562, March
31, 2009).
20. In the case of Azcueta vs. Republic and C.A., G.R. No.
180668, May 26, 2009, the Supreme Court declared the
respondent husband psychologically incapacitated because of
his Dependent Personality Disorder. The Court reinstated
the ruling of the RTC finding the respondent psychologically
incapacitated considering the totality of evidence presented
clearly show that respondent failed to comply with his marital
obligation. Citing the case of Te vs Te, the Court reiterated its
pronouncement that: in dissolving marital bonds on account
of either partys psychological incapacity, the Court is not
demolishing the foundation of families, but it is actually
protecting the sanctity of marriage, because it refuses to
allow a person afflicted with a psychological disorder, who
cannot comply with or assume essential marital obligations,
from remaining in that sacred bond. Xxx. Let it be noted that
in Article 36, there is no marriage to speak of in the first
place, as the same is void from the very beginning. To indulge
in imagery, the declaration of nullity under Article 36 will
simply provide a decent burial to a stillborn marriage.
(emphasis ours)
21. In Renato Reyes So vs. Valera, G.R. No. 150667, June 5,
2009, the Court denied the petition and stated that: Our own
examination of the psychologists testimony and conclusions
leads us to conclude that they are not sufficiently in-depth
and comprehensive to warrant the conclusion that a
psychological incapacity existed that prevented the
respondent from complying with the essential marital
obligations of marriage. The facts on which the psychologist
based her conclusions were all derived from statements by
the petitioner whose bias in favor of his cause cannot be
doubted.
22. In the following recent decisions, the Supreme Court did
not consider the presence of psychological incapacity, to wit:
The testimony of the psychologist that one of the parties was
suffering from borderline personality disorder as manifested
by his being a Mamas Boy did not constitute sufficient
evidence of that partys condition. The diagnosis was only
based on interviews with petitioning spouse and that the
psychologist did not actually hear, see and evaluate the
respondent. Her testimony constituted hearsay. Furthermore,
the psychologist failed to explain how such a personality
disorder made Jordan psychologically incapacitated and to
prove that the same is so grave and permanent. In any case,
the alleged incapacity was not shown to be so grave and
permanent (Jordan Chan Paz vs. Jeanice Paz, G.R. No. 166579,
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(Feb.18, 2010).The witness global conclusion was not
supported by psychological tests properly administered by
clinical psychologists specifically trained in the tests use and
interpretation. The supposed personality disorders of the
parties, considering that such diagnosis were made, could
have been fully established by psychometric and neurological
tests which are designed to measure specific aspects of
peoples intelligence, thinking, or personality (Edward Lim vs.
Ma. Cheryl Lim, G.R. No. 176464, (Feb. 24, 2010).
Respondents alleged sexual infidelity, emotional immaturity
and irresponsibility do not constitute psychological incapacity
within the contemplation of the Family Code as the
psychologist failed to identify and prove the root cause
thereof or that the incapacity was medically or clinically
permanent or incurable (Ligeralde vs. Patalinghug, G.R. No.
168796, April 15, 2010). Failure to manage the familys
finances resulting in the loss of the house and lot intended to
be their family residences is not psychological incapacity. It is
still essential although from sources other than the
respondent spouse to show his or her personality profile, or
its approximation, at the time of marriage; the root cause of
the inability to appreciate the essential obligations of
marriage; and the gravity, permanence and incurability of the
condition (Ricardo Toring vs.Teresita Toring, G.R. No. 165321,
August 3, 2010).
23. However, in the case of Ma. Socorro C. Reyes vs. Ramon
Reyes, G.R. No. 185286, August 18, 2010, the Supreme Court
ruled that lack of personal examination and interview of the
respondent, or any person diagnosed with personality
disorder, does not per se invalidate the testimonies of the
doctors. Neither do their findings automatically constitute
hearsay that would result in their exclusion as evidence. The
two clinical psychologists and a psychiatrists assessment
were not based solely on the narration or personal interview
of the petitioner but also on other informants such as
respondents own son, siblings and in-laws, and sister-in-law
who all testified on their own observations of respondents
behavior and interactions with them. In the instant case,
respondents pattern of behavior manifests an inability, nay, a
psychological incapacity to perform the essential marital
obligations as shown by his: (1.) sporadic financial support;
(2.) extra-marital affairs; (3.) substance abuse; (4.) failed
business attempts; (5.) unpaid money obligations; (6.)
inability to keep a job that is not connected with the family
business; and (7.) criminal charges of estafa. In fine, we find
ample basis to conclude that respondent was psychologically
incapacitated to perform the essential marital obligations at
the time of his marriage to petitioner.
24. Quarrels, financial difficulties, womanizing of petitioner are
not psychological incapacities. The testimony of the
psychiatrist is found to be general, not in-depth, does not
establish link between actions of party and his supposed
psychological incapacity (Rosalino Marable vs. Myrna Marable,
G.R. No. 178741, January 17, 2011). Also, sexual infidelity of
the wife does not per se constitute psychological incapacity if
it is not shown that it already existed before the marriage
(Jose Ochoa vs. Bona Alano, G.R. No.167459, January 26,
2011).
25. For psychological incapacity of a spouse to serve as a
ground for annulling a marriage, the incapacity must consist
of the following: (a.) a true inability to commit oneself to the
essentials of marriage; (b.) this inability to commit oneself
must refer to the essential obligations of marriage: the
conjugal act, the community of life and love, the rendering of
mutual help, the procreation and education of offspring; and
(c.) the inability must be tantamount to a psychological
ascendants
and
descendants
of
any
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the adopter;
7) Between the adopted children of the same adopter;
8) Between parties where one, with the intention to
marry the other, killed that other person s spouse, or
his or her own spouse.
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contract another marriage has been swinging like a
pendulum. At one time the Supreme Court ruled that there is
no need but in another time the Court said there is a need. In
the case of People vs. Mendoza and the case of People vs.
Aragon decided in 1954 and 1957 respectively, the Supreme
Court ruled that there was no need for a judicial declaration of
nullity of a void marriage. Later on, in the case of Gomez vs.
Lipana (33 SCRA 614) and Consuegra vs. GSIS (37 SCRA 315)
decided in 1970 and 1971 respectively, the Court changed its
stand and ruled that judicial declaration of nullity of marriage
is necessary before one can contract a subsequent marriage.
However, in the case of Odayat vs. Amante (77 SCRA 338)
decided in 1977, the Supreme Court returned to the old rule
enunciated in the Mendoza and Aragon cases that judicial
declaration of nullity is not necessary. But, in the case of
Wiegel vs. Sempio Diy (143 SCRA 499) decided in August 19,
1986, the Court went back to the rule in Gomez vs. Lipana
and Consuegra vs. GSIS, only to be abandoned later by the
case of Yap vs. Court of Appeals ( 145 SCRA 229) decided on
October 28, 1986. This flip- flopping of the Supreme Court has
prompted the framers of the Family Code to incorporate
Article 40 in order to put to rest the controversy brought
about by the conflicting decisions of the Supreme Court. So,
now it is settled that if the marriage is void, the only way that
the parties to that void marriage can marry again is to have it
declared void by the court first.
3. Article 40 of the Family Code restated the rule that even if
the marriage is void, there is a need to have it declared void
by the court, for it is solely on the basis of that final judgment
that a party can remarry. In the case of Roberto Domingo vs.
Court of Appeals, et al., G.R. No. 104818, September 17,
1993, the Supreme Court clarified the meaning of Article 40
by saying that the judicial declaration of nullity of marriage is
not solely for the purpose of remarriage as it can also be
invoked for other purposes such as in case of an action for
liquidation, partition, distribution and separation of property
between the spouses, as well as an action for the custody and
support of their common children and the delivery of the
latters presumptive legitime. The word solely qualifies the
term judgment. Thus, it means that for purposes of
remarriage, the nullity of a previous marriage can only or
solely be established by a final judgment of the court
declaring such marriage void.
4. When the first marriage is void and a party to that marriage
contracted a second marriage without obtaining a judicial
declaration of nullity of the first marriage, there is no doubt
that the second marriage is null and void under Article 40.
But, is the said party guilty of bigamy? The Court of Appeals in
the case of People vs. Cobar, CA-G.R. No. 19344, November
10, 1997, answered this question in the negative. According to
the Court of Appeals, there is no bigamy because of the
absence of the first and fourth element of bigamy, which are
that the first marriage must be valid and that the second
marriage must have all the essential requisites for validity. A
void bigamous marriage therefore contemplates of a situation
where the second marriage was contracted at the time when
the first marriage , which is valid in all respects, was still
subsisting. Hence, the first marriage must not be void but
valid or at least annulable.
5. However, in the case of Vincent Paul Mercado vs. Consuelo
Tan, G.R. No. 137110, August 1, 2000 , and Nicdao Carino vs.
Carino, G.R. No. 132529, February 2, 2001, the Supreme Court
ruled that a person who contracts a subsequent marriage
without having his first marriage judicially declared void is
guilty of bigamy. This ruling is consistent with the
pronouncement in Terre vs. Terre, 211 SCRA 6, where the
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contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the
absent spouse was already dead. In case of
disappearance where there is danger of death under
the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purposes of contracting the subsequent
marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as
provided for in this Code for the declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent spouse.
(83a)
Art. 42- The subsequent marriage referred to in the
preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of
reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent
marriage at the instance of any interested person, with
due notice to the spouses of the subsequent marriage
and without prejudice to the fact of reappearance
being judicially determined in case such fact is
disputed. (n)
Art. 43- The termination of the subsequent marriage
referred to in the preceding Article shall produce the
following effects:
1) The children of the subsequent marriage conceived
prior to its termination shall be considered legitimate
and their custody and support in case of dispute shall
be decided by the court in a proper proceeding;
2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and
liquidated, but if either spouse contracted said
marriage in bad faith, his or her share of the net
profits of the community property shall be forfeited in
favour of the common children or, if there are none,
the children of the guilty spouse by a previous
marriage or in default of children, the innocent spouse;
3) Donations by reason of marriage shall remain valid,
except that if the donee contracted the marriage in
bad faith, such donations made to said donee are
revoked by operation of law;
4) The innocent spouse may revoke the designation of
the other spouse who acted in bad faith as a
beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable; and
5) The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to inherit
from the innocent spouse by testate and intestate
succession. (n)
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when a person has been absent for seven years, it being
unknown whether or not the absentee still lives. The said
absentee shall be presumed dead for all purposes except for
those of succession, in which case, the absentee shall not be
presumed dead till after an absence of ten years. The period
is shortened to four years (now two years in the Family Code)
if the disappearance is in danger of death as stated in Article
391; or to five years if the disappearing spouse is already 75
years of age. The judicial declaration of presumptive death
under Article 41 of this Code is mandatorily required by law
only for the purpose of capacitating the present spouse to
remarry. Thus, the judicial declaration of presumptive death
will protect the spouse from being charged of bigamy in case
the absent spouse will reappear.
5. The requirement that a petition for judicial declaration of
presumptive death of a spouse must be anchored on a well
founded belief that the absence spouse must have already
been dead will apply only if the marriage took place after the
effectivity of the Family Code on August 3, 1988. When the
marriage of the present and disappearing spouse was
celebrated before the effectivity of the Family Code and the
disappearance also happened before 1988, the Civil Code will
apply. Under Article 390 of the Civil Code, judicial declaration
of presumptive death is not required for purposes of
remarriage. The declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose to
enable the taking of the necessary precautions for the
administration of the estate of the absentee. For celebration
of civil marriage, however, the law only requires that the
former spouse has been absent for seven consecutive years
at the time of the second marriage, that the spouse present
does not know his or her former spouse to be living, that such
former spouse is generally reputed to be dead and the spouse
present so believes at the time of the celebration of the
marriage.
6. When the husband and the wife were married in 1971,
then, the husband disappeared in 1975, and the wife did not
anymore hear any news from him, the subsequent marriage of
the wife with another man in 1985 is valid. In fact, there is no
more need for the wife to file a petition to declare her first
husband presumptively dead before contracting the second
marriage as that is not required under the Civil Code. The
validity of the subsequent marriage is determined by the law
prevailing at the time of the marriage. The Family Code,
particularly Article 41 thereof, cannot be applied retroactively
by requiring the spouse to first obtain a judicial declaration of
presumptive death before contracting the subsequent
marriage. To do so would be to impair a vested right already
acquired by a party under the former law. Considering that it
is the Civil Code and not the Family Code that will apply here,
proof of well founded belief is not required (Angelita Valdez
vs. Republic, G.R. No. 180863, Sept. 8, 2009).
7. The decision of the court declaring a spouse presumptively
dead under Article 41 of the Family Code is unappealable and
immediately executory as it falls under the Summary Judicial
Proceedings in the Family Law (Republic vs. Bermudez-Lorino,
G.R. No. 160258, Jan. 19, 2005). There is no reglementary
period to perfect an appeal, precisely because judgment
rendered thereunder, by express provision of the law (Art.
247), are immediately final and executory. As a matter of
course, it follows that no appeal can be had of the trial courts
judgment in a summary proceeding for the declaration of
presumptive death of an absent spouse under Article 41 of
the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question
abuse of discretion amounting to lack of jurisdiction. Such
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Art. 45- A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
NOTES
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spouse from the other. This is because the concealment of the
STD here becomes fraud.
8. Drug addiction, habitual alcoholism, homosexuality and
lesbianism can be a ground to annul the marriage only when it
already exist at the time of the marriage and it was concealed
by said party from the other. If it occurred only after the
marriage, it is not a ground for annulment but it could be a
ground for legal separation.
9. Physical incapacity to consummate the marriage refers to
impotency and not sterility. The impotency must already be
existing at the time of the marriage and such incapacity
continues and appears to be incurable. If the impotency
happened only after the marriage it is not a ground for the
annulment of the marriage. Potency is always presumed, thus,
whoever claims that his/her spouse is impotent has the
burden of proving. However, the presumption of potency is
rebutted if the wife remains a virgin after three years from the
time of their cohabitation. This is called the Doctrine of
triennial cohabitation.
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