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The Legal Aspect of Marriage (http://tanjutcolaw.

com/practice-areas/annulment-familylaw/legal-aspect-marriage/)
How does the Family Code define marriage?
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.
Who are authorized to solemnize marriages?
(1) Any incumbent member of the judiciary within the courts jurisdiction;
(2) 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 by his church or religious sect and provided
that at least one of the contracting parties belongs to the solemnizing officers church or
religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31 of the
Family Code;
(4) 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
of the Family Code;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10 of the
Family Code.
What are the essential requisites of marriage?
No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
What are the formal requisites of marriage?
The formal requisites of marriage are:
(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases where the same is exempted; and
(3) 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.
How old must I be to get validly married?
Any male or female of the age of eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38, may contract marriage.
My American husband was granted a divorce, can I now validly remarry?
Yes. Under the 2nd paragraph of Article 26 of the Family code, where a marriage
between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to
remarry, the Filipino spouse shall have capacity to remarry under Philippine law.
What kind of marriages are exempted from marriage license?
1. In case either or both of the contracting parties are at the point of death, the marriage
may be solemnized without necessity of a marriage license and shall remain valid even
if the ailing party subsequently survives.
2. If the residence of either party is so located that there is no means of transportation to
enable such party to appear personally before the local civil registrar, the marriage may
be solemnized without necessity of a marriage license.
3. A marriage in articulo mortis as defined in the Family Code.
4. Marriages among Muslims or among members of the ethnic cultural communities
may be performed validly without the necessity of marriage license, provided they are
solemnized in accordance with their customs, rites or practices.
5. No license shall be necessary for the marriage of a man and a woman who have
lived together as husband and wife for at least five years and without any legal
impediment to marry each other. The contracting parties shall state the foregoing facts
in an affidavit before any person authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the qualifications of the
contracting parties are found no legal impediment to the marriage.
Which marriages does the law consider void from the beginning?
(1) Those contracted by any party below eighteen years of age even with the consent of
parents or guardians;

(2) Those solemnized by any person not legally authorized to perform marriages unless
such marriages were contracted with either or both parties believing in good faith that
the solemnizing officer had the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing under Article 41;
(5) Those contracted through mistake of one contracting party as to the identity of the
other; and
(6) Those subsequent marriages that are void under Article 53.
(7) A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization.
(8) Between ascendants and descendants of any degree; and
(9) Between brothers and sisters, whether of the full or half blood.
(10) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth
civil degree;
(11) Between step-parents and step-children;
(12) Between parents-in-law and children-in-law;
(13) Between the adopting parent and the adopted child;
(14) Between the surviving spouse of the adopting parent and the adopted child;
(15) Between the surviving spouse of the adopted child and the adopter;
(16) Between an adopted child and a legitimate child of the adopter;
(17) Between adopted children of the same adopter; and
(18) Between parties where one, with the intention to marry the other, killed that other
persons spouse, or his or her own spouse.
Are marriages celebrated overseas between foreigners recognized in the Philippines?
In accordance with the principle of lex loci celebrationis, marriages celebrated abroad
between foreigners are also valid in the Philippines. However, if such marriage is highly
immoral, such as when it is bigamous, polygamous or universally considered as

incestuous, it cannot be given recognition here. The term universally considered


incestuous covers marriages between ascendants and descendants or those between
brothers and sisters, whether they be illegitimate or legitimate. Thus, marriages
between two French first cousins celebrated in Paris, will be recognized as valid here
not only because of lex loci celebrationis, but also because such marriage is not
considered to be universally incestuous.
What law shall govern marriages of foreigners in the Philippines?
Whenever foreigners are to be married in the Philippines, their capacity to marry shall
be governed bytheir national law, as can be gleaned from Article 21 of the family Code
which states that:
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.
FAQs Annulment, Divorce and Legal Separation in the Philippines: Questions and
Answers
Is divorce allowed under Philippine laws?
(http://jlp-law.com/blog/annulment-divorce-legal-separation-in-the-philippines-questionsand-answers/)

No, divorce is not allowed in the Philippines. However, there are certain
instances wherein the divorce secured abroad by the foreigner-spouse, and even
by former Filipinos, are recognized under Philippine laws. More discussionhere (Judicial
Recognition of a Foreign Divorce Decree).
Would it make any difference if I marry abroad where divorce is allowed?
No. Filipinos are covered by this prohibition based on the nationality principle,
regardless of wherever they get married (and regardless where they get a decree of
divorce). Discussions relating to Overseas Filipinos or OFWs are transferred in Part V.
Is annulment different from a declaration of nullity of marriage?
Yes. In essence, annulment applies to a marriage that is considered valid, but there
are grounds to nullify it. A declaration of nullity of marriage, on the other hand, applies

to marriages that are void or invalid from the very beginning. In other words, it was
never valid in the first place.
Also, an action for annulment of voidable marriages may prescribe, while an action for
declaration of nullity of marriage does not prescribe.
So, if a marriage is void from the very beginning (void ab initio), theres no need
to file anything in court?
For purposes of remarriage, there must be a court order declaring the marriage as null
and void. Entering into a subsequent marriage without such court declaration means
that: (a) the subsequent marriage is void; and (b) the parties open themselves to a
possible charge of bigamy.
What if no marriage certificate could be found?
Justice Sempio-Dy, in the Handbook of on the Family Code of the Philippines (p. 26,
1997 reprint), says: The marriage certificate is not an essential or formal requisite of
marriage without which the marriage will be void. An oral marriage is, therefore, valid,
and failure of a party to sign the marriage certificate or the omission of the solemnizing
officer to send a copy of the marriage certificate to the proper local civil registrar, does
not invalidate the marriage. Also the mere fact that no record of marriage can be found,
does not invalidate the marriage provided all the requisites for its validity are present.
(Citations omitted)
Can I file a petition (annulment or declaration of absolute nullity of marriage) even
if I am in a foreign country?
Yes, the rules recognize and allow the filing of the petition by Filipinos who are
overseas.
What are the grounds for annulment?
1. Lack of parental consent in certain cases. If a party is 18 years or over, but below 21,
and the marriage was solemnized without the consent of the parents/guardian.
However, the marriage is validated if, upon reaching 21, the spouses freely cohabited
with the other and both lived together as husband and wife.
2. Insanity. A marriage may be annulled if, at the time of marriage, either party was of
unsound mind, unless such party after coming to reason, freely cohabited with the other
as husband and wife.

3. Fraud. The consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with
the other as husband and wife. Fraud includes: (i) non-disclosure of a previous
conviction by final judgment of the other party of a crime involving moral turpitude; (ii)
concealment by the wife of the fact that at the time of the marriage, she was pregnant
by a man other than her husband; (iii) concealment of sexually transmissible disease or
STD, regardless of its nature, existing at the time of the marriage; or (iv) concealment of
drug addiction, habitual alcoholism or homosexuality or lesbianism existing at the time
of the marriage. However, no other misrepresentation or deceit as to character, health,
rank, fortune or chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage.
4. Force, intimidation or undue influence. If the consent of either party was obtained by
any of these means, except in cases wherein the force, intimidation or undue influence
having disappeared or ceased, the complaining party thereafter freely cohabited with
the other as husband and wife.
5. Impotence. At the time of marriage, either party was physically incapable of
consummating the marriage with the other, and such incapacity continues and appears
to be incurable. Impotence is different from being infertile.
6. STD. If, at the time of marriage, either party was afflicted with a sexuallytransmissible disease found to be serious and appears to be incurable. If the STD is not
serious or is curable, it may still constitute fraud (see No. 3 above).
What if a spouse discovers that his/her spouse is a homosexual or is violent, can
he/she ask for annulment?
Homosexuality or physical violence, by themselves, are not sufficient to nullify a
marriage. At the very least, however, these grounds may be used as basis for legal
separation.
How is legal separation different from annulment?
The basic difference is this in legal separation, the spouses are still considered
married to each other, and, thus, may not remarry.
Is legal separation faster than annulment?
Not necessarily. The petitioner in a legal separation, just like in an annulment, is still
required to prove the allegations contained in the petition. More important is the
mandatory 6-month cooling off period in legal separation cases. This is not required in

annulment or declaration of nullity cases. The court is required to schedule the pre-trial
conference not earlier than six (6) months from the filing of the petition. This period is
meant to give the spouses an opportunity for reconciliation.
What are the grounds for legal separation?
1. Repeated physical violence or grossly abusive conduct directed against the
petitioner, a common child, or a child of the petitioner.
2. Physical violence or moral pressure to compel the petitioner to change religious or
political affiliation.
3. Attempt of respondent to corrupt or induce the petitioner, a common child, or a child
of the petitioner, to engage in prostitution, or connivance in such corruption or
inducement.
4. Final judgment sentencing the respondent to imprisonment of more than six years,
even if pardoned.
5. Drug addiction or habitual alcoholism of the respondent.
6. Lesbianism or homosexuality of the respondent.
7. Contracting by the respondent of a subsequent bigamous marriage, whether in the
Philippines or abroad.
8. Sexual infidelity or perversion.
9. Attempt by the respondent against the life of the petitioner.
10. Abandonment of petitioner by respondent without justifiable cause for more than one
year.
The term child shall include a child by nature or by adoption.
Should I file a petition for legal separation, can I use my own sexual infidelity as a
ground?
It is interesting to note that among the grounds for legal separation, as listed above,
only sexual infidelity or perversion is not qualified by the phrase of the respondent or
by respondent. This may give the impression that the sexual infidelity of the petitioner,
or the one who filed the petition, may be used as a ground in legal separation. We must

consider, however, that legal separation is filed by the innocent spouse or the
aggrieved party against the guilty spouse.
What happens if after learning that your husband (or wife) is unfaithful (No. 8
above), you still co-habitate with him/her?
This may be construed as condonation, which is a defense in actions for legal
separation. In addition to condonation, the following are the defenses in legal
separation:
1.
Consent.
2. Connivance (in the commission of the offense or act constituting the ground for legal
separation).
3. Mutual guilt (both parties have given ground for legal separation).
4.
Collusion
(to
obtain
decree
of
legal
separation).
5. Prescription (5 years from the occurence of the cause for legal separation).
If youre separated from your spouse for 4 years, is that a sufficient ground for
annulment?
No. De facto separation is not a ground for annulment. However, the absence of 2 or 4
years, depending on the circumstances, may be enough to ask the court for a
declaration of presumptive death of the absent spouse, in which case the petitioner
may again re-marry. See Can someone remarry without going to court due to absence
or separation?
What are the grounds for declaration of nullity of marriage?
1. Minority (those contracted by any party below 18 years of age even with the consent
of parents or guardians).
2. Lack of authority of solemnizing officer (those solemnized by any person not legally
authorized to perform marriages, unless such marriages were contracted with either or
both parties believing in good faith that the solemnizing officer had the legal authority to
do so).
3. Absence of marriage license (except in certain cases).
4. Bigamous or polygamous marriages (except in cases where the other spouse is
declared as presumptively dead).

5. Mistake in identity (those contracted through mistake of one contracting party as to


the identity of the other).
6. After securing a judgement of annulment or of asolute nullity of mariage, the parties,
before entering into the subsequent marriage, failed to record with the appropriate
registry the: (i) partition and distribute the properties of the first marriage; and (ii)
delivery of the childrens presumptive legitime.
7. Incestous marriages (between ascendants and descendants of any degree, between
brothers and sisters, whether of the full or half blood).
8. Void by reason of public policy. Marriages between (i) collateral blood relatives
whether legitimate or illegitimate, up to the fourth civil degree; (ii) step-parents and stepchildren; (iii) parents-in-law and children-in-law; (iv) adopting parent and the adopted
child; (v) surviving spouse of the adopting parent and the adopted child; (vi) surviving
spouse of the adopted child and the adopter; (vii) an adopted child and a legitimate child
of the adopter; (viii) adopted children of the same adopter; and (ix) parties where one,
with the intention to marry the other, killed that other persons spouse, or his or her own
spouse.
9. Psychological Incapacity. Psychological incapacity, which a ground for annulment of
marriage, contemplates downright incapacity or inability to take cognizance of and to
assume the basic marital obligations; not a mere refusal, neglect or difficulty, much less,
ill will, on the part of the errant spouse. Irreconcilable differences, conflicting
personalities, emotional immaturity and irresponsibility, physical abuse, habitual
alcoholism, sexual infidelity or perversion, and abandonment, by themselves, also do
not warrant a finding of psychological incapacity. We already discussed the guidelines
and illustrations of psychological incapacity, including a case involving habitual lying, as
well as the steps and procedure in filing a petition.
Please note, however, that there are still other grounds to declare a marriage as null
and void.

Browse through the comments below to check if your questions are similar to that of
others. Other common issues are consolidated in Part II, Part III, Part IV, Part V, Costs
in seeking an Annulment, and other related posts. You can check the Related Posts at
the bottom of each post.