THE FAMILY CODE OF THE PHILIPPINES

EXECUTIVE ORDER NO. 209. On July 6, 1987, President Corazon C.

Aquino signed into law Executive Order No. 209, otherwise known as
the “Family Code of the Philippines.” The reason and objective of the
code are clearly set out in its whereas clauses, to wit:

WHEREAS, almost four decades have passed since the adoption of the Civil
Code of the Philippines;

WHEREAS, experience under said Code as well as pervasive changes and

developments have necessitated revision of its provisions on marriage and
family relations to bring them closer to Filipino customs, values and ideals
and reflect contemporary trends and conditions;

WHEREAS, there is a need to implement policies embodied in the new

Constitution that strengthen marriage and the family as basic social
institutions and ensure equality between men and women.

The committee which drafted the Family Code included three well-renowned
civilists, namely: Justice Jose B.L. Reyes, Justice Eduardo P. Caguioa and
Justice Ricardo C. Puno.

Subsequently, Executive Order No. 277 was signed by President Aquino on

July 17, 1987. This particular executive order was subjected to further
amendments and modifications specifically referring to Articles 26, 36 and
39.

On August 3, 1988, the Family Code of the Philippines finally took

effect.

Thereafter, Republic Act No. 6809 was passed by Congress on October

20, 1989 and approved by President Aquino. It took effect on December
18, 1989. It amended Title X of the Family Code dealing with
emancipation and the age of majority.

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
the 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)

MAIL-ORDER BRIDE. Marriage is vested with public interest such

that the legislature has even enacted a law making it a criminal offense
for any person, natural or juridical, association, club or any entity to
commit, directly or indirectly, any of the following acts:

(1) 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;

(2) 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
subparagraph;

(3) To solicit, enlist or in any manner attract or induce any Filipino woman 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
personal introduction for a fee;

(4) To use the postal service to promote the prohibited acts in subparagraph 1
(Republic Act No. 6955, Section 2, June 13, 1990).

It is unlawful for the manager or officer-in-charge or advertising

manager of any newspaper, magazine, television or radio station, or
other media, or of an advertising agency, print company or other
similar entities, to knowingly allow, or consent, to the acts prohibited
above (Republic Act No. 6955, Section 2, June 13, 1990).

TRAFFICKING IN WOMEN. Under Republic Act No. 9208, the Anti

Trafficking in Persons Act of 2003, the following acts are considered
trafficking:

Section 4. Acts of Trafficking in Persons. — It shall be unlawful for any

person, natural or juridical, to commit any of the following acts:

xxx xxx xxx

(b) To introduce or match for money, profit, or material, economic or other

consideration, any person or, as provided for under Republic Act No. 6955,
any Filipino woman to a foreign national, for marriage for the purpose of
acquiring, buying, offering, selling or trading him/her to engage in
prostitution, pornography, sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;

(c) To offer or contract marriage, real or simulated, for the purpose of

acquiring, buying, offering, selling, or trading them to engage in prostitution,
pornography, sexual exploitation, forced labor or slavery, involuntary
servitude or debt bondage.

MARRIAGE BETWEEN RAPIST AND RAPED VICTIM. As a special

contract, a subsequent valid marriage of the offender and the offended
party in the crime of rape likewise extinguishes the criminal action or
the penalty imposed for rape. In case the victim is already married and
it is the legal husband who is the offender, the subsequent forgiveness
by the wife as the offended party shall extinguish the criminal action or
the penalty, provided that the crime shall not be extinguished or the
penalty shall not be abated if the marriage is void ab initio (Article 266-
C of the Revised Penal Code, as amended by Republic Act No. 8353).

MARRIAGE AS A STATUS. Marriage creates a social status or relation

between the contracting parties (State v. Tatty, 7 LEA 50; Greek vs.
State, 58 Ala. 190), in which not only they but the State as well are
interested (Magee v. Young, 40 Miss. 164; Trammell v. Voughman, 158
Mo. 214), and involves a personal union of those participating in it of a
character unknown to any other human relations, and having more to
do with the morals and civilization of a people than any other
institution (State v. Dukit, 70 Wis. 272, 63 NW 83). Indeed, marriage is
one of the cases of double status, in that the status therein involves and
affects two persons. One is married, never in abstract or a vacuum, but,
always, to somebody else. Hence, a judicial decree on the marriage
status of a person necessarily reflects upon the status of another and
the relation between them (Rayray v. Chae Kyung Lee, 18 SCRA 450).

CONSTITUTIONAL PROTECTION. The 1987 Philippine Constitution

provides that “the State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic social institution” (Section
12, Article II). Marriage is a relationship of the highest importance.
(Manuel v. People, G.R. No. 165842, November 29, 2005, 476 SCRA
461). As a matter of fact, to highlight the importance of the family and
of marriage, the Constitution further provides a separate Article 15
exclusively dealing with the family. Among others, it provides that the
State recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively promote its
total development (Section 1, Article 15). Marriage, according to the
Constitution, is an inviolable social institution and the foundation of
the family and shall be protected by the State (Section 2, Article 15). It
has likewise been authoritatively stated that the “right to marry,
establish a home and bring up children is a central part of the liberty
protected by the Due Process Clause” (Zablocki v. Redhail, 434 U.S.
374, 54 L. Ed. 618). The right to enter into a marriage has also been
regarded as within the ambit of the constitutional right of association.
And, once married, a couple has a right to privacy which is protected
against all undue and unwarranted government intrusion.

The constitutional provisions on marriage, however, do not imply that

the legislature cannot enact a law allowing absolute

divorce. While it is fundamental that marriage must be protected, it is

likewise to be acknowledged that there may be certain cases where the
parties might have undergone a marriage ceremony to bind themselves
together but, subsequently, no functional marital life would exist.
Hence, there is no marriage to preserve at all. The legislature has the
plenary power to decide what sort of situations allowing absolute
divorce may be recognized within the limits allowed by the
Constitution.

While a lawful marriage seeks to create a permanent union between

man and woman, it does not shed the spouses’ integrity or their privacy
as individuals. Thus, in Zulueta v. Court of Appeals, 68 SCAD 440, 253
SCRA 699 where a wife, to get evidence of infidelity in a case for legal
separation she filed against her husband, ransacked his office and
forcibly took documents and letters of the husband addressed to his
paramour, the Supreme Court ruled that the wife cannot use the said
documents and letters as evidence because they were obtained in
violation of the husband’s constitutional right to privacy. Pertinently,
the Supreme Court ruled:

Indeed, the documents and papers in question are inad- missible in evidence.
The constitutional injunction declaring “the privacy of communication and
correspondence (to be) in- violable” is no less applicable simply because it is
the wife (who thinks herself aggrieved by her husband’s infidelity) who is the
party against whom the constitutional provision is to be en- forced. The only
exception to the prohibition in the Constitution is if there is a “lawful order
(from a) court or when public safety or order requires otherwise, as prescribed
by law.” Any violation of this provision renders the evidence obtained
inadmissible “for any purpose in any proceeding.”

The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity. A person, by contracting marriage,
does not shed his/ her integrity or his/her right to privacy as an individual
and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between spouses by

making it privileged. Neither the husband nor wife may testify for or against
the other without the consent of the affected spouse while the marriage
subsists. Neither may be examined without the consent of the other as to any
communication received in confidence by one from the other during the
marriage, save for specified exceptions. But one thing is freedom of
communication; quite another is a compulsion for each one to share what one
knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.

In the case of Duncan v. Glaxo, 438 SCRA 343, an employment contract

requiring an employee to disclose to management any existing or future
relationship by consanguinity or affinity with co- employees or
employees of competing drug companies and requiring such employee
to resign should management find that such relationship poses a
possible conflict of interest was not held to be in violation of the equal
protection clause of the constitution considering that the said
stipulation is reasonable under the circumstances because such
relationship might compromise the interest of the company and the
requirement was shown to be aimed against the possibility that a
competitor company will gain access to its secrets and procedures. The
Supreme Court said that the provision does not impose an absolute
prohibition against relationships between the company’s employees and
those of competitor company.

In the subsequent case of Star Paper Corporation v. Simbol, 487 SCRA

228, where a company policy provided that, in case two of their
employees decide to get married to each other , one of them should
resign from the company, the Supreme Court held that the act of the
company in enforcing such policy is illegal as it failed to prove a
legitimate business concern in imposing the questioned policy
especially so when the asserted policy is premised on the mere fear that
employees married to each other will be less efficient. Thus, it was not
shown how the marriage between a sheeting machine operator of the
company married to an employee in the repacking section in the same
company, or a production helper to a cutter- machine helper, can be
detrimental to the business operations of the company.

LEGISLATIVE CONTROL OF MARRIAGE. The Constitution itself

however does not establish the parameters of state protection to
marriage and the family, as it remains the province of the legislature to
define all legal aspects of marriage and prescribe the strategy and the
modalities to protect it and put into operation the constitutional
provisions that protect the same. With the enactment of the Family
Code, this has been accomplished as it defines marriage and the family,
spells out the corresponding legal effects, imposes the limitations that
affect married and family life, as well as prescribes the grounds for
declaration of nullity and those for legal separation (Ong v. Ong, G.R.
No. 153206, October 23, 2006,

505 SCRA 76). Marriage, as creating the most important relation in

life, as having more to do with the morals and civilization of a people
than any other institution, has always been subject to the control of the
legislature (Maynard v. Hill, 125 US 190, 8 S. Ct. 723, 31 L. Ed. 654).
In a real sense, there are three parties to every civil marriage; two
willing spouses and an approving State. On marriage, the parties
assume new relations to each other and the State touching nearly on
every aspect of life and death. In a real sense, there are three parties to
every civil marriage; two willing spouses and an approving State
(Manuel v. People, G.R. No. 165842, November 29, 2005, 476 SCRA
461).

The relations, duties, obligations, and consequences flowing from the

marriage contract are so important to the peace and welfare of society
as to have placed it under the control of special municipal regulations,
independent of the will of the parties, and it has always been the
subject of legislative control (Maynard v. Hill, 125 US 190, 8 S. Ct. 723,
31 L. Ed. 654). Indeed, not only is the state concerned with the validity
of marriage per se but also with the sustainability and maintenance of
a harmonious and healthy family life brought about by such marriage.
It is a generally accepted doctrine that the legislature may impose such
restrictions upon marital relation as the laws of God and the laws of
propriety and morality and social order demand, provided, such
regulations are not prohibitory (State v. Walker, 36 Kan. 297).

Legislative regulation of marriage must, however, not con- travene the

mandates of the Constitution. It must not violate for instance the
“equal protection clause” by forbidding certain types of marriages on
the basis of race or political inclinations (Loving v. Virginia, 388 US 1,
18 L. Ed. 2d 1010).

By legislation, marriage can be made a statutory basis for limiting

one’s capacity to act or for affecting one’s right to acquire property. For
example, if a person attests the execution of a last will and testament,
to whose spouse a devise or legacy is given by such will, such devise or
legacy shall, so far only as concerns such spouse or anyone claiming
under such spouse, be void, unless there are three other competent
witnesses to such will (Article 823 of the Civil Code). In this case, the
fact of marriage of the witness in a will to the devisee or legatee shall
render void the gratuitous disposition of a real property in favor of the
devisee-spouse or a personal property in favor of the legatee-spouse,
unless there are three other witnesses.

Also, according to Article 874 of the Civil Code, an absolute condition

not to contract a first or subsequent marriage made in a last will and
testament on an instituted voluntary heir, legatee, or devisee shall be
considered as not written unless such condition has been imposed on
the widow or widower by the deceased spouse, or by the latter’s
ascendants or descendants. It must be pointed out that, in case the
heir, legatee, or devisee falls under the exception, the contravention of
such a condition in a will imposed on them will nevertheless not make
the marriage void but will only make ineffective the grant, devise or
legacy.

PROPERTY RELATIONS. Under the New Family Code, except for

property relations which may be fixed in a marriage settlement
executed prior to the marriage ceremony, the nature, consequence and
incidents of marriage as a social institution are governed by law and
not subject to stipulations. However, marriage settlements must not
contravene the mandatory provisions of the new Family Code. As the
law mandates, marriage settlements must be within the limits
provided by the Family Code. For instance, while persons who intend to
marry can stipulate in their marriage settlement that the property
regime that will govern their marriage shall be the conjugal
partnership property arrangement, they cannot provide any
stipulation, whether express or implied, that the commencement of
such property regime shall be at anytime other than at the precise
moment that the marriage was celebrated. If they do so, Article 107 of
the Family Code in relation to Article 88 statutorily makes such
stipulation void. Also, Article 77 of the Family Code provides that the
marriage settlement and any modification thereof shall be in writing,
signed by the parties and executed before the celebration of the
marriage. Any modification after the marriage must be approved by the
courts and must be made only in accordance and in the instances
provided for in Article 76. Other limitations are set out in the Family
Code.

LAW GOVERNING VALIDITY OF MARRIAGE. To create the relation

of husband and wife, and give rise to the mutual rights, duties, and
liabilities arising out of that relation, there must be a valid marriage.
The requisites for a valid marriage are provided for by law. In
determining the validity of marriage, it is to be tested by the law in
force at the time the marriage was contracted (Social Security System
v. Jarque Vda. de Bailon, 485 SCRA 376; Stewart v. Vandervort, 34 W.
Va. 524, 12 SE 736, 12 LRA 50; Ninal v. Bayadog, 328 SCRA 122).

The principle that the validity of a marriage is determined by the law

effective at the time of the celebration of the marriage is further
highlighted by the fact that, as a general rule, the nature of the
marriage already celebrated cannot be changed by a subsequent
amendment to the law.

Under the Civil Code of 1950, a marriage between stepbrother and

stepsister was void. Such a marriage is not anymore prohibited under
the new Family Code. However, the effectivity of the new Family Code
does not affect the void nature of a marriage between stepbrother and
stepsister solemnized during the effectivity of the 1950 Civil Code. It
remains void or nullifiable considering that the validity of a marriage is
governed by the law enforced at the time of the marriage ceremony.

Also, in the Family Code, there is now a new provision, specifically

Article 53, which considers a subsequent marriage void if, before
contracting the same, the former spouses, in violation of Article 52,
failed, among others, to liquidate their property of the previous
marriage after the finality of a nullity or annulment decree and to
deliver the presumptive legitime of their children. This ground to
nullify a marriage or to declare it as void did not exist in the 1950 Civil
Code and, therefore, cannot be availed of by a person who, after
obtaining a decree nullifying or annulling his previous marriage, wants
to again nullify his subsequent marriage on the basis that such
subsequent marriage which has been entered into prior to the
effectivity of the Family Code does not comply with the requirement
relative to the delivery of the presumptive legitime of his children in
the first marriage.

In the same vein, “mistake in identity” was an instance of fraud which

constituted a ground to make a marriage annullable (valid until
terminated) under the Civil Code. In the Family Code, such a “mistake
in identity” is a ground to declare a marriage void from the beginning.
The effectivity of the Family Code does not affect the annullable nature
of those marriages contracted prior to the effectivity of the Family Code
where “mistake in identity” is

involved. In short, the annullable nature of such a marriage is not ipso

jure converted into a marriage which is void ab initio upon the
implementation of the Family Code. The new Family Code does not
likewise expressly provide that marriages such as those contracted as a
result of “mistake in identity” become automatically void upon the
effectivity of the new Family Code just because the same amended the
Civil Code by making “mistake of identity” a ground to declare a
marriage void from the beginning and not anymore a legal basis for
annulment. An express validation or invalidation provision is
important because any ambiguity or doubt in the law should follow the
general rule that marriages are governed by the law enforced at the
time of their celebration and any interpretation of the law must always
be made upholding the validity of a marriage.

While Article 256 of the Family Code provides that the law shall have a
retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code and other laws, this
retroactivity clause is a general one and does not expressly and directly
validate a previously void marriage under the Civil Code. Moreover,
void marriages can never be ratified. Also, though a marriage is void,
vested rights can be acquired from such a relationship like those which
may refer to property relationships and, therefore, a clear and direct
legislative mandate to validate a void marriage must expressly be
enacted if the legislature really intends such a curative measure.

There is one clear case where the Family Code allows the filing of a
petition to declare a marriage void even if the ground was not
statutorily provided as a basis for a void marriage under the Civil Code.
Prior to its amendment, Article 39 of the Family Code clearly provides
that in cases of marriages celebrated before the effectivity of the Family
Code and falling under the said Code’s Article 36, which makes a
marriage void because either or both of the contracting spouses are
psychologically incapacitated to perform the essential marital
obligation, an action or a defense to declare the marriage void shall
prescribe in ten years after the effectivity of the Family Code. This
means that a spouse who, prior to the effectivity of the Family Code on
August 3, 1988, got married to an individual who is psychologically
incapacitated under Article 36, may file a case to declare such marriage
void under the said article of the New Family Code despite the fact that
such ground did not exist as a legal basis for nullity of marriage at the
time his or her marriage was celebrated when the Civil Code was in
effect. Later, Republic Act Number 8533 amended Article 39 by
deleting the prescriptive period of 10 years. Hence, if the ground for
nullity is Article 36, there is no more prescriptive period whether or not
the marriage has been celebrated before or after August 3, 1988.

Article 2. 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. (53a)

Article 3. The formal requisites of marriage are:

. 1) Authority of the solemnizing officer; 


. 2) A valid marriage license except in the 


cases provided for in Chapter 2 of this Title; 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. (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)

Article 5. 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. (54a)

Article 6. No prescribed form or religious rite for the

solemnization of the marriage is required. It shall be necessary,
however, for the contracting parties to appear personally
before the solemnizing 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 said party, which fact shall be attested by the
solemnizing officer. (55a)

LEGAL CAPACITY. Under the New Family Code, the marrying age is
18 years old and above. This is likewise the age of majority. If any of
the parties is below 18 years of age, the marriage is void even if the
consent of the parents has been previously obtained. Also, the
contracting parties must not be related to each other in the manner
provided for in Article 37, which refers to incestuous marriages, and
Article 38 which refers to void marriages for reasons of public policy.
Legal capacity to marry must likewise have reference to Article 39 of
the Civil Code stating that capacity to act is, among others, limited by
family relations. Hence, an already married person cannot marry again
unless his or her previous marriage has been nullified or annulled or
his or her case falls under the “valid bigamous marriage” provided for
in Article 41 of the Family Code.
EFFECT OF SEX-CHANGE. Although gay marriages are definitely not
covered within the purview of the Article 2 of the Family Code, the
emerging issue of transsexuals and intersexuals’ gender identities have
called the attention of the Supreme Court in the cases of Silverio v.
Republic, G.R. No. 174689, October 22, 2007 and Republic v.
Cagandahan, G.R. No. 166676, September 12, 2008, respectively. Thus,
the question which needs to be addressed is when should the gender
identity of a contracting party to a marriage be determined: at the time
of his or her birth or at the time when he or she decides to enter into
marriage? From a human rights perspective which espouses a non-
discriminatory and more inclusive interpretation, it would seem that a
man or a woman should be considered as such at the time of the
marriage when the parties themselves assert their own gender
identities.

In Silverio v. Republic, G.R. No. 174689, October 19, 2007, 537 SCRA
373, where the petitioner who had a biological sex change from male to
female through sex-reassignment-surgery and where he sought the
amendment of his birth certificate to reflect the change in sex as a
preliminary step to get married to his partner, the Supreme Court
rejected the said petition and ruled that the sex determined by visually
looking at the genitals of a baby at the time of birth is immutable and
that there is no law legally recognizing sex reassignment.

However in Republic v. Cagandahan, G.R. No. 166676, September 12,

2008, 565 SCRA 72 where the respondent was found out to have
Congenital Adrenal Hyperplasia (CAH) which is a condition where the
person afflicted has both male and female characteristics and organs
and where, through expert evidence, it was shown that the respondent,
though genetically a female, secreted male hormones and not female
hormones, had no breast, and did not have any monthly menstrual
period and where the respondent, in his mind and emotion, felt like a
male person and did not want to have surgery, the Supreme Court
considered the person as an “intersex individual” and granted the
preference of the person to be considered as a male person, thereby
allowing the amendment of the birth certificate of the person from
female to male. The Supreme Court said:

Intersex individuals are treated in different ways by different cultures. In

most societies, intersex individuals have been expected to conform to either a
male or female gender role. Since the rise of modern medical science in
Western societies, some intersex people with ambiguous external genitalia
have had their genitalia surgically modified to resemble either male or
female genitals. More commonly, an intersex individual is considered as
suffering from a “disorder” which is almost always recommended to be
treated, whether by surgery and/or by taking lifetime medication in order to
mold the individual as neatly as possible into the category of either male or
female.

In deciding this case, we consider the compassionate calls for recognition of

the various degrees of intersex as variations which should not be subject to
outright denial. “It has been suggested that there is some middle ground
between the sexes, a ‘no-man’s land’ for those individuals who are neither
truly ‘male’ nor truly ‘female’’’. The current state of Philippine statutes
apparently compels that a person be classified either as a male or as a
female, but this Court is not controlled by mere appearances when nature
itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a female, then there is

no basis for a change in the birth certificate entry for gender. But if we
determine, based on medical testimony and scientific development showing
the respondent to be other than female, then a change in the subject’s birth
certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently

and categorically female nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However, respondent’s body
system naturally produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the phenotypic features of a
male.

Ultimately, we are of the view that where the person is biologically or

naturally intersex the determining factor in

his gender classification would be what the individual, like respondent,

having reached the age of majority, with good reason thinks of his/her sex.
Respondent here thinks of himself as a male and considering that his body
produces high levels of male hormones (androgen) there is preponderant
biological support for considering him as being male. Sexual development in
cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like
respondent, is fixed.

Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent
could have undergone treatment and taken steps, like taking lifelong
medication, to force his body into the categorical mold of a female but he did
not. He chose not to do so. Nature has instead taken its due course in
respondent’s development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on
respondent concerning a matter so innately private as one’s sexuality and
lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to undergo treatment in
order to become or remain as a female. Neither will the Court force
respondent to undergo treatment and to take medication in order to fit the
mold of a female, as society commonly currently knows this gender of the
human species. Respondent is the one who has to live with his intersex
anatomy. To him belongs the human right to the pursuit of happiness and of
health. Thus, to him should belong the primordial choice of what courses of
action to take along the path of his sexual development and maturation. In
the absence of evidence that respondent is an “incompetent” in the absence of
evidence to show that classifying respondent as a male will harm other
members of society who are equally entitled to protection under the law, the
Court affirms as valid and justified the respondent’s position and his
personal judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature;

and (2) how an individual deals with what nature has handed out. In other
words, we respect respondent’s congenital condition and his mature decision
to be a male. Life is already difficult for the ordinary person. We cannot but
respect how respondent deals with his unordinary state and thus help make
his life easier, considering the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has held that
a change of name is not a matter of right but of judicial discretion, to be
exercised in the light of the reasons adduced and the consequences that will
follow. The trial court’s grant of respondent’s change of name from Jennifer to
Jeff implies a change of a feminine name to a masculine name. Considering
the consequence that respondent’s change of name merely recognizes his
preferred gender, we find merit in respondent’s change of name. Such a
change will conform with the change of the entry in his birth certificate from
female to male.

CONSENT. The requirements of consent are that it must be: (a) freely
given and (b) the same must be made in the presence of the
solemnizing officer. The child shall have the prerogative of choosing his
or her future spouse. Parents should not force or unduly influence him
or her to marry a person he or she has not freely chosen (Article 57, PD
603).
The total absence of consent makes the marriage void ab initio.
However, consent in marriage obtained through fraud, force,
intimidation, or undue influence makes such marriage merely
annullable or voidable (valid until annulled). The vitiated manner by
which such consent is obtained merely renders defective such consent.

Free consent connotes that the contracting parties willingly and

deliberately entered into the marriage. It signifies that, at the time of
the marriage ceremony, they were capable of intelligently
understanding the nature and consequences of the act. The consent
requisite to the marriage relation need not, however, be expressed in
any special manner, or any particular form (Teter v. Teter, 101 Ind.
129) so long as there is a manifestation that the contracting parties
take each other as husband and wife.

The free consent must be given in the presence of the solemnizing

officer “in order that it may have due publication, before a third person
or persons, for the sake of notoriety and the certainty of its being made’’
(Dyer v. Brannock, 66 Mo. 391, 27 Ann Rep. 359). Together with the
mandatory requirement under Article 6 of the Family Code that the
contracting parties must be personally present during the
solemnization of marriage, this requirement prohibits proxy-marriages
in the Philippines.

AUTHORITY OF THE SOLEMNIZING OFFICER. The solemnizing

officer may be any one of those enumerated in Article 7 of the New
Family Code. It must be observed that it is not the presence or absence
of the solemnizing officer which constitutes the formal requirement but
it is the absence or presence of the authority of such solemnizing
officer. Article 7 also provides the limits of their authority and the
elements or requirements for such authority to fully vest on the
solemnizer.

Under the new Local Government Code which took effect on January 1,
1992, the mayor of a city or municipality is empowered to solemnize a
marriage, any provision of law to the contrary notwithstanding
(Chapter 3, Article 1, Section 444 [xviii] of the 1991 Local Government
Code).

The authority of the officer or clergyman shown to have per- formed a

marriage ceremony will be presumed in the absence of any showing to
the contrary (Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121). This
is in accordance with the rule that where a marriage ceremony is
shown, every presumption will be indulged that it was legally
performed (Gaines v. New Orleans, 18 US 950). Moreover, the
solemnizing officer is not duty bound to investigate whether or not a
marriage license has been duly and regularly issued by the local civil
registrar. All the solemnizing officer needs to know is that the license
has been issued by the competent official, and it may be presumed from
the issuance of the license that said official has fulfilled the duty to
ascertain whether the contracting parties had fulfilled the
requirements of law (People v. Janssen, 54 Phil. 176).

However, under Article 29 in relation to Articles 27 and 28 of the

Family Code providing the cases where the contracting parties are
legally excused from obtaining a marriage license because one of them
is in the point of death or there is no means of transportation to go to
the local civil registrar as their places of residence are far, the
solemnizing officer must undertake the necessary steps to ascertain the
ages and relationship of the contracting parties and the absence of legal
impediment to marry. Similarly, under Article 34 of the Family Code,
providing that persons living together as husband and wife for at least
five years without the benefit of marriage may contract a valid
marriage even in the absence of a marriage license, the solemnizing
officer, in such situation, is duty bound to ascertain the qualifications of
the contracting parties.

Considering that the consent of the State is given through a

solemnizing officer duly authorized by the law, his or her very position
as a marriage solemnizer is affected by public interest that criminal
penalties are even imposable against a person who solemnizes a
marriage without authority. Thus, Section 38 of the Marriage Law of
1929 (Act No. 3613) which has not yet been repealed provides that:

Any priest or minister solemnizing marriage without being authorized by the

Director of the Philippine National Library (now Director of National Library
who is concurrently the Civil Registrar General under the Civil Register Law,
Act No. 3753), or who, upon solemnizing marriage, refuses to exhibit his
authorization in force when called upon to do so by the parties or parents,
grandparents, guardians, or persons having charge; and any bishop or officer,
priest, or minister of any church, religion or sect the regulations and
practices whereof require banns or publications previous to the solemnization
of a marriage in accordance with Section 10 (now Article 12 of the Family
Code), who authorizes the immediate authorization of the marriage that is
subsequently declared illegal; or any officer, priest or minister solemnizing
marriage in violation of the provisions of this Act (now the Family Code),
shall be punished by imprisonment for not less than one month nor more
than two years, or by a fine of not less than two hundred pesos nor more than
two thousand pesos (See also Revised Penal Code, Article 352).

VALID MARRIAGE LICENSE. A valid marriage license must be

issued by the local civil registrar of the place where the marriage
application was filed. Once issued, it has only a lifetime of 120 days
from the date of issue and is effective in any part of the Philippines.
The date of issue is the date of the signing of the marriage license by
the local civil registrar (Minutes of the 145th meeting of the Civil Code
and Family Law Committee, June 28, 1986, page 15). A marriage
license is not effective if it will be used as the marriage license to be
able to solemnize a marriage abroad. It is deemed automatically
canceled at the expiration of the 120-day period if the contracting
parties have not made use of it. The other requirements for the
issuance of a marriage license are merely directory in the sense that
their non-observance is a mere irregularity which will not render a
marriage null and void or even annullable. Hence, if the marriage
license is issued in a place wherein the contracting parties do not reside
and a marriage is performed on the basis of such marriage license, such
marriage is still valid (People v. Janssen, 54 Phil. 176).

Likewise, the fact that a party to whom a license is issued is

represented therein by a name other than his true name or had his
name spelled wrongly will not invalidate a marriage solemnized on the
authority of such license (Validity of Solemnized Marriage as Affected
by Absence of License Required by Statute authored by F.M. English,
61 ALR 2d 841, citing Matturo v. Matturo, 111 NYS 2d 533).

There are also authorities to the effect that a marriage license procured
by one of the contracting parties by false representation as to her or his
age, which was however above the marrying age, in order to avoid the
statutory requirement of parental consent did not result in the
invalidity of the marriage in the absence of a statutory declaration
expressly nullifying a marriage contracted without the required
parental consent and considering further that the requirement of
parental consent was applicable only to the issuance of the marriage
license, and simply directory to the clerk who issued the license (Teagae
v. Allred, 173 P2d 117, 119 Mont. 193). Under the Family Code, while a
marriage where one of the contracting parties is at least 18 years of age
and below 21 years of age is not void from the beginning, it is
nevertheless annullable which means that it is valid up to the time it is
terminated (Article 45 of the Family Code). The commission of perjury
or deception on the part of the contracting parties as to their age in
order to avoid the statutory requirement of parental consent is not a
cause to invalidate the marriage obtained through such marriage
license (Payne v. Payne, 298 F. 970).

In the same vein, the fact that one of the contracting parties did not
disclose his or her prior marriage and divorce in the application as
required by statute; or falsely stated that he or she had not been
previously married (Lea v. Galbraith, 137 P2d 320); or misrepresented
his or her residence (Boysen v. Boysen, 23 NE2d 231); or falsely swore
that he or she was not under guardianship (Johnson v. Johnson, 214
Minn. 462); or forged her or his mother’s consent to the marriage (Ex
Parte Hollopeter, 52 Wass 41, 100 P 159), will not justify a judicial
declaration that marriages performed on the basis of marriage licenses
procured through such acts are nullities.

However, it has been ruled that:

“a license to enter into a status or a relationship which the parties are

incapable of achieving is a nullity. If the appellants had concealed from the
clerk the fact that they are of the same sex and he had issued a license to
them and a ceremony had been performed, the resulting relationship would
not constitute a marriage (Jones v. Hallahan, 63 ALR 3d 1195).’’

The Family Code does not generally prescribe any particular form of a
marriage ceremony. However, the minimum requirement imposed by
law is that the contracting parties appear personally before the
solemnizing officer and declare that they take each other as husband
and wife in the presence of at least two witnesses of legal age.

An exchange of vows can be presumed to have been made from the

testimonies of the witnesses who state that a wedding took place, since the
very purpose for having a wedding is to exchange vows of marital
commitment. It would indeed be unusual to have a wedding without an
exchange of vows and quite unnatural for people not to notice its absence
(Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD 229).

The declaration of consent need not be vocally expressed. It can be

shown by other manifestations or signs of approval and consent.

Indeed, they may signify it by whatever ceremony their whim, their

taste, or their religious belief may select. It is the agreement itself, and
not the form in which it is couched, which constitutes the contract. The
words used and the manner by which the ceremony was performed are
mere evidence of a present intention and agreement to marry of the
parties.

Thus, the failure of the solemnizing officer to ask the parties whether they
take each other as husband and wife cannot be regarded as a fatal omission,
and is not a cause for annulment, it being sufficient that they declared in and
signed the marriage contract that they were taking each other as husband
and wife. A declaration by word of mouth of what the parties had already
stated in writing would be a mere repetition, so that its omission should not
be regarded as a fatal defect (Annotation on Annulment of Marriage by Judge
Domingo Luciano, 22 SCRA 525, citing Karganilla v. Familiar, 1 O.G. 345,
and Infante v. Arenas, CA-G.R. No. 5278-R, June 29, 1957).

Also, it has been held that a marriage is valid where a man and a
woman appeared before a justice of the peace and there signed a
statement setting forth that they had agreed to marry each other and
asked the justice of the peace to solemnize the marriage and thereafter
another document was signed by them, by the justice, and by two
witnesses, stating that the man and woman appeared before the justice
and ratified all that was contained in the preceding instrument and
insisted upon the marriage and, after the signing of these documents,
the justice announced to the man and the woman that they were
married (Martinez v. Tan, 12 Phil. 731).

While the law provides that the declaration shall be contained in the
marriage certificate, the marriage certificate itself is not an essential
nor formal requirement of marriage. Failure to sign a marriage
certificate or absence of the marriage certificate itself does not render
the marriage void nor annullable (Madridejo v. De Leon, 55 Phil. 1;
Loria v. Felix, 5 O.G. 8114).

WITNESSES IN A MARRIAGE CEREMONY. Article 3(3) expressly

provides that, as part of the marriage ceremony which is a formal
requirement, there must be no less than two witnesses of legal age in
attendance. From the provision itself, it appears that there can be no
marriage ceremony to speak of if the two witnesses of legal age are
absent. The requirement of the presence of the two witnesses of legal
age has been given further emphasis in Article 6 which provides that,
while there is no prescribed form as to the solemnization of a marriage,
it shall be necessary, however, for the contracting parties to appear
before the solemnizing officer and declare in the presence of not less
than two witnesses of legal age that they take each other as husband
and wife. Furthermore, tracing the legislative history of this
requirement, under the Civil Code which was repealed by the Family
Code, the presence of the two witnesses was not provided for under
Article 53 thereof, which enumerated the requirements when a
marriage can be solemnized. In the Family Code, the presence of the
two witnesses of legal age is now included in Article 3 enumerating the
formal requirements of a marriage, the absence of any of them, as a
general rule, will make the marriage void. Also, such requirement as to
the two witnesses of legal age under the Civil Code was contained only
in Article 55 thereof which is the counterpart provision of Article 6 of
the Family Code. Hence, the significant amendments in the Family
Code making a double reference to the requirement of two witnesses of
legal age in the marriage ceremony in two significant articles seem to
indicate an intention to make the presence of two witnesses of legal age
determinative of the presence of a marriage ceremony.

It can, however, be justifiably argued that the absence of two witnesses

of legal age in a marriage ceremony is merely an irregularity in the
said formal requirement which, according to Article 4, shall not affect
the validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally, and administratively liable. It
can be validly explained that while there were no witnesses of legal age
or there was only one witness of legal age or there were witnesses but
not of legal age, there was still a marriage ceremony that was
performed where the principal contracting parties and the solemnizing
officer were present but only that it was deficient by the absence of the
required witnesses of legal age. In short, a marriage ceremony, though
inadequate, was not strictly absent so as to consider the marriage void
under Article 4 of the Family Code. Besides, in marriage, it is the
agreement itself of the principal contracting parties in the presence of
the representative of the state, namely the solemnizing officer, which
constitutes the contract. At the most, such inadequacy as to the
witnesses, is merely an irregularity not enough to invalidate a
marriage. This is the better view with respect to the interpretation and
implementation of the Family Code. The law and public policy favor
matrimony. Consequently, every intendment of the law leans toward
legalizing matrimony, as it is the basis of human society throughout
the civilized world (Perido v. Perido, 63 SCRA 97).
Significantly, the Supreme Court appears to lean in favor of the view
that absence of witnesses is merely an irregularity which will not
render a marriage void. In Balogbog v. Court of Appeals, G.R. No.
83598, March 7, 1997, 80 SCAD 229, where it was contended that the
existence of a marriage cannot be presumed because there was no
evidence that the parties, in the presence of two witnesses, declared
that they take each other as husband and wife, the Supreme Court
stated that an exchange of vows can already “be presumed to have been
made from the testimonies of the witnesses who state that a wedding
took place, since the very purpose for having a wedding is to exchange
vows of marital commitment.” Significantly, the Supreme Court did not
say that a presumption of the presence of witnesses to the marriage
ceremony is created by the said testimonies of the court witnesses. In
this case, the issue of the absence of the witnesses during the marriage
ceremony was not even taken up by the Supreme Court. In other words,
to prove the validity of the marriage, it was enough that there was
proof that a wedding took place where an exchange of vows can be
presumed though the presence of witnesses will not necessarily be
presumed. The absence of witnesses, therefore, was not such a serious
flaw and would therefore only constitute an irregularity.

COMMON-LAW MARRIAGES NOT RECOGNIZED IN THE

PHILIPPINES. A common-law marriage may be defined as a non-
ceremonial or informal marriage by agreement, entered into by a man
and a woman having capacity to marry, ordinarily without compliance
with such statutory formalities as those pertaining to marriage licenses
(Re Zemmick, 76 NE2d 902). Such agreement must be coupled by
consummation, which includes at least cohabitation as husband and
wife, and reputation in such a way that the public will recognize the
marital status (Huard v. Mcteigh, 39 ALR 528; Drewy v. State, 208 Ga.
239).

This is so because the Civil Code and the New Family Code expressly
and mandatorily provide that the intervention in a valid marriage
ceremony of an ecclesiastical or civil functionary authorized by the
state to solemnize marriage constitutes one of the indispensable
requisites for a valid marriage in the Philippines. Moreover, the
contracting parties must appear before the said authorized solemnizer
and personally declare in his presence that they take each other as
husband and wife. Accordingly, only ceremonial marriage, where
solemnization is an inherent aspect, is recognized in the Philippines.
Thus, the use of the word “spouses” in the Civil Code as well as the
Family Code refers only to husband and wife lawfully married
according to Philippine laws and not to common-law marriages, unless
the law otherwise provides (Enriquez, Sr. v. Velez, 185 SCRA 425). In
the same vein, the phrase “husband and wife” refers to parties who are
lawfully married unless the law provides otherwise, as in the cases of
Articles 34 and 147 of the Family Code.

ABSENCE, DEFECT, IRREGULARITIES IN ESSENTIAL AND

FORMAL REQUIREMENTS. Generally, absence of any of the essential
or formal requirements of a marriage renders such marriage null and
void. Hence, a marriage license which has already automatically
expired is not a valid marriage license, thereby making any marriage
undertaken on the basis of such alleged license void. In such a case,
there is absence of a valid marriage license.

Marriage by way of a jest is likewise void because there is absolutely no

genuine consent on the part of both contracting parties.

Marriage by proxy solemnized here in the Philippines is likewise void

because of the absence of the essential requisite that consent freely
given must be made in the presence of the solemnizing officer and the
absence of the formal requisite that the contracting parties must
personally declare before the solemnizing officer that they take each
other as husband and wife.

Exceptions, however, are provided by law. Thus, absence of a marriage

license does not affect the validity of a marriage if the situation falls
under Chapter 2, Title I of the Family Code. These situations are
marriages in articulo mortis, marriages of two contracting parties
living in places where there are no means of transportation to enable
them to appear personally before the local civil registrar, marriages
among Muslims and among other ethnic cultural minorities performed
in accordance with their practices, and marriages of couples without
any impediment to get married living together as husband and wife for
at least five years.

Another exception is a marriage solemnized by a person without

authority to solemnize a marriage provided that either one of the
parties believed in good faith that such solemnizer had the proper
authority (Article 35[2]).
Defects in the essential requirements of marriage make the marriage
merely annullable or voidable. Specifically, these defects are
enumerated in Articles 45 and 46 of the New Family Code.

Irregularities in the formal requisites do not affect the validity of the

marriage. Except when the contracting parties eighteen years or over
but below twenty-one did not obtain the consent of their parents as
provided for in Article 14 of the Family Code, any irregularity in the
formal requisites does not even render the marriage voidable or
annullable.

A judge who solemnizes a marriage without having been shown a valid

marriage license and merely requires the submission of the marriage
license after the marriage ceremony acts improperly (Cosca v.
Palaypayon, 55 SCAD 759, 237 SCRA 249). If, in such case, the parties
really have a valid marriage license and they just forgot to bring it, the
marriage will still be valid. It is just an irregularity. However, if the
parties really do not have a marriage license and the judge requires
them to apply and procure a marriage license after the marriage
ceremony, the marriage is void. A judge who did not sign and date the
marriage contract, did not furnish the parties, and did not forward the
marriage contract to the local civil registrar, may be held
administratively liable (Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA
249).

The practice of a judge of requiring the parties to sign the marriage

contract first before solemnization of the marriage is

highly improper and irregular, if not illegal, because the contracting parties
are supposed to be first asked by the solemnizing officer and declare that
they take each other as husband and wife before the solemnizing officer in
the presence of two witnesses before they are supposed to sign the marriage
contract (Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249).

Such a marriage solemnized by the judge in such an irregular manner,

however, does not invalidate the marriage because a marriage contract
is not a formal requirement of a valid marriage.

The following are some of the irregularities which do not affect the
validity of a marriage: 1) absence of two witnesses of legal age during
the marriage ceremony (Meister v. Moore, 96 US 76, 24 US L. Ed. 826);

2) absence of a marriage certificate (People v. Janssen, 54 Phil. 176);

3) marriage solemnized in a place other than publicly in the chambers
of the judge or in open court, in church, chapel, or temple, or in the
office of the consul-general, consul, or vice-consul;

4) issuance of marriage license in city or municipality not the residence

of either of the contracting parties (Alcantara v. Alcantara, G.R. No.
167746, August 28, 2007, 531 SCRA 446);

5) unsworn application for a marriage license;

6) failure of the contracting parties to present original birth certificate

or baptismal certificate to the local civil registrar who likewise failed to
ask for the same;

7) failure of the contracting parties between the ages of eighteen and

twenty-one to exhibit consent of parents or persons having legal charge
of them to the local civil registrar;

8) failure of the contracting parties between the ages of twenty-one to

twenty-five to exhibit advice of parents to local civil registrar;

9) failure to undergo marriage counseling;

10) failure of the local civil registrar to post the required notices;

11) issuance of marriage license despite absence of publication or prior

to the completion of the 10-day period for publication (Alcantara v.
Alcantara, G.R. No. 167746, August 28, 2007, 531 SCRA 446);

12) failure of the contracting parties to pay the prescribed fees for the
marriage license;

13) failure of the person solemnizing the marriage to send copies of the
marriage certificate to the local civil registrar (Madridejos v. De Leon,
55 Phil. 1); and

14) failure of the local civil registrar to enter the applications for
marriage licenses filed with him in the registry book in the order in
which they were received.

BREACH OF PROMISE TO MARRY. Mere breach of a promise to

marry is not an actionable wrong (Hermosisima v. CA, L-14628,
September 30, 1960; Estopa v. Biansay, L-14733, September 30, 1960).
Hence, the aggrieved party in this case cannot file a case to compel the
person who has breached such promise to enter into the marriage
contract.

However, in Wassmer v. Velez, As stated, mere breach of promise to marry

is not an actionable wrong. But to formally set a wedding and go through all
the above-described preparation and publicity, only to walk out of it when the
matrimony is about to be solemnized, is quite different. This is palpably and
unjustifiably contrary to good customs for which the defendant must be made
answerable for damages in accordance with Article 21 aforesaid.

In the Wassmer case, actual damages were also awarded to the plaintiff
for the expenses incurred relative to the preparation for the wedding.

Article 7. Marriage may be solemnized by:

1) Any incumbent member of the judiciary within the court’s

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 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;

3) Any ship captain or airplane chief only in cases mentioned in

Article 31;

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; or

5) Any consul-general, consul or vice-consul in the case

provided in Article 10. (56a)

AUTHORIZED SOLEMNIZERS OF MARRIAGE. Marriage contracts

have always been considered as involving questions of public policy and
the interests of other than those of the contracting parties, and should
therefore be construed in accordance with such policy (Cunningham v.
Cunningham, 43 LRA [N.SS] 355). In this regard, there is a need to
limit the persons who could solemnize marriage. Moreover, the state
being an interested party, its consent is essential to every marriage
(Eaton v. Eaton, 66 Neb. 676, 60 LRA 605). This state consent is
manifested or granted vicariously by the people granted by the state
the privileged authority to solemnize marriage, such that any
annulment case which, in effect, seeks to invalidate such state consent
must pass through the courts and cannot be made merely by agreement
of parties. The institution of marriage is so directly concerned with the
public welfare that the state is a third party thereto (Trammell v.
Vaugham, 158 Mo. 214).

Inasmuch as the State officiates in the celebration of marriage through

the person solemnizing the same, it is logical that such person must
have the authority from the Government at that time. Such authority is
the foundation of marriage (Civil Code by Dean Francisco Capistrano,
Volume I, page 80). The authority given to specified people to solemnize
marriages is provided for in Article 7. It is very important to note that
Article 7 defines the limits and scope of the authority granted to the
solemnizers. Hence, if they fail to comply with any of the requisites
mandated by law for them to

validly solemnize a marriage, such a marriage is generally void on the

ground of absence of a formal requirement which is authority of the
solemnizing officer.

JUDGES. Judges can solemnize marriage only within their courts’

jurisdiction. Moreover, they must be incumbent and not retired judges.
Needless to state, the jurisdiction of the Court of Tax Appeals,
Sandiganbayan, the Court of Appeals and the Supreme Court is
national in scope. Judges who are appointed to specific jurisdictions
may officiate in weddings only within said areas and not beyond
(Navarro v. Domagtoy, A.M. No. MTJ 96-1088, July 19, 1996, 72 SCAD
328). If a marriage is solemnized by a judge of the Regional Trial Court,
Metropolitan Trial Court, or Municipal Court beyond his jurisdiction,
there is absence of a formal requisite in such a marriage, namely, the
authority of the solemnizing officer. Hence, the marriage is void unless
either of the parties believed in good faith that such solemnizing officer
has authority to conduct such marriage.

It is very interesting to note that in Navarro v. Domagtoy, A.M. No.

MTJ 06-1088, July 19, 1996, 72 SCAD 328, involving an administrative
case filed against a judge who committed several irregularities in
solemnizing a marriage, the Supreme Court said that “where judge
solemnizes a marriage outside his court’s jurisdiction, there is a
resultant irregularity in the formal requisite laid down in Article 3,
which, while it may not affect the validity of the marriage, may subject
the officiating official to administrative liability.” This statement is
erroneous because the law clearly provides that a judge has authority
only if he or she solemnizes within his or her jurisdiction. Non-
observance of this rule is not a mere irregularity because it generally
makes the marriage null and void. It is submitted, however, that since
the principal issue in the Domagtoy case involves the liability of a judge
and not the validity of a marriage, the said statement of the Supreme
Court is merely an obiter dictum and, therefore, does not create a
precedent.

After solemnizing a marriage, it is highly irregular for a judge to collect

fees for the ceremony. It is reprehensible. By such act, a judge cheapens
his or her noble office as well as the entire judiciary in the eyes of the
public (Dysico v. Dacumos, 74 SCAD 625, 262 SCRA 274).

PRIEST, RABBI, IMAM, OR MINISTER OF ANY CHURCH OR

RELIGIOUS SECT. A priest, according to lexicographers, means one
especially consecrated to the service of a divinity and considered as the
medium through whom worship, prayer, sacrifice, or other service is to
be offered to the one being worshipped, and pardon, blessing, and
deliverance, obtained by the worshiper, as a priest of Baal or of
Jehovah, or a Buddhist priest (Adong v. Cheong Seng Gee, 43 Phil. 43).

For a priest, rabbi, imam, or minister of any church or religious sect to

be able to validly solemnize a marriage, the following four essential
requisites must concur: he or she 1) must be duly authorized by his or
her church or religious sect; 2) must act within the limits of the written
authority granted to him or her by the church or religious sect; 3) must
be registered with the civil registrar general; and 4) at least one of the
contracting parties whose marriage he or she is to solemnize belongs to
his or her church or religious sect. The written authority granted to a
priest by his sect may impose a limitation as to the place where he
could solemnize a marriage. For instance, a priest who is commissioned
and allowed by his local ordinary to marry the faithful, is authorized to
do so only within the area of the diocese or the place allowed by his
Bishop (Navarro v. Domagtoy, A.M. No. MTJ 06-1088, July 19, 1996, 72
SCAD 328).

SHIP CAPTAIN AND AIRPLANE CHIEF. For a ship captain or

airplane chief to be able to validly solemnize a marriage, the following
requisites must concur: 1) the marriage must be in articulo mortis (at
least one of the parties is at the point of death); 2) the marriage must
be between passengers or crew members; and 3) generally, the ship
must be at sea or the plane must be in flight. Hence, an assistant pilot
has no authority to solemnize a marriage. If the airplane chief dies
during the trip, the assistant pilot who assumes command of the
airplane cannot solemnize a marriage as there is no law allowing such
assumption of authority for the purpose of solemnizing a marriage.

Such marriages can be solemnized during stopovers at ports of call.

MILITARY COMMANDER. For a military commander to be able to

solemnize a marriage, the following requisites must concur: 1) he or she
must be a military commander of a unit; 2) he or she must be a
commissioned officer; 3) a chaplain must be assigned to such unit; 4)
the said chaplain must be absent at the time of the marriage; 5) the
marriage must be one in articulo mortis; 6) the contracting parties,
whether members of the armed forces or civilians, must be within the
zone of military operation. If the chaplain is present, he must be the
one who should solemnize the marriage. The chaplain’s authority to
solemnize proceeds from Article 7(2). Hence, if the chaplain cannot
comply with Article 7(2), then it is as if he is absent as he cannot
solemnize a marriage, in which case, the military commander can
solemnize the marriage.

The military commander must be a commissioned officer which means

that his rank should start from a second lieutenant, ensign and above
(Webster Dictionary, 1991 edition).

During the committee meetings of the drafters of the Family Code,

Justice Caguioa insisted that the phrase “who should be a
commissioned officer” qualifying a military commander be empha- sized
in the law to show the mandatory character of the said qualification
(Minutes of the 148th joint Civil Code and Family Law committees held
on July 26, 1986, page 2).

The word “unit,” according to the deliberations of the Civil Code

Revision Committee, refers to a battalion under the present table of
organization and not to a mere company (Minutes of the Civil Code
Revision Committee held on May 23, 1983, page 4). A military
commander may solemnize a marriage even if the contracting parties
do not belong to his or her unit (Minutes of the 147th joint Civil Code
and Family Law committees held on July 19, 1986, page 10).

The phrase “within the zone of military operation” implies a

widespread military activity over an area and does not refer to a
simulated exercise because it requires absence of civilian authorities

CONSUL-GENERAL, CONSUL, OR VICE CONSUL. Heads of

consular posts are divided into four classes, namely: 1) consul- general;
2) consul; 3) vice-consul; 4) consul agents (Article 9, Vienna Convention
of 1963). Only the first three are expressly authorized by the Family
Code to solemnize marriage. They can solemnize marriage abroad only
when the contracting parties are both Filipino citizens. They act not
only as the solemnizer of a marriage but also perform the duties of the
local civil registrar, such as the issuance of a marriage license. When
the marriage, which in itself is a special type of contract, is to be
solemnized by the consul-general, consul, or vice-consul abroad or,
specifically in his place of assignment, the solemnities established by
Philippine laws shall be observed in their execution (Article 17 of the
Civil Code). Thus, the contracting parties shall personally appear
before the consul-general, consul, or vice-consul in the latter’s office
abroad 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. If the contracting parties desire to have their
marriage solemnize in a place other than the office of the consul-
general, consul, or vice- consul, they shall request the said official 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.

A marriage between a Filipino and a foreigner abroad solem- nized by a

Philippine consul appears to be void. This is so because the very
authority of the consul-general, consul, or vice-consul to solemnize
marriage is limited to Filipino citizens. This is gleaned from the
provision in Art. 7 which provides that, among others, “marriage may
be solemnized by . . . any consul-general, consul, or vice-consul in the
case provided in Article 10.” The latter article, in turn, provides that
marriages between Filipino citizens abroad may be solemnized by a
consul-general, consul, or vice-consul of the Republic of the Philippines.
The law therefore specifically limits their authority to solemnize
marriages only in one particular case, namely, the marriage between
Filipino citizens. Clearly, they do not have any authority or there is
absence on their part of any author- ity to solemnize marriage between
a foreigner and a Filipino. Such marriage, therefore, is wanting of one
of the formal requirements of a valid marriage provided in Article 3(1),
which is the authority of the solemnizing officer. Hence, in accordance
with Article 4, such absence makes the marriage void ab initio.
However, by way of exception, if the marriage between the foreigner
and the Filipino citizen abroad solemnized by a Philippine consul
assigned in that country is recognized as valid in the host country, then
such marriage shall be considered valid in the Philippines. This
exception is pursuant to Article 26 of the Family Code.

Also, Article 10 clearly refers to marriages “abroad.” Hence, a consul-

general, consul, and vice-consul have no authority to solemnize a
marriage within the territory of the Philippines.

MAYOR. Pursuant to the Local Government Code which took effect on

January 1, 1992, the mayor of a city or municipality is now empowered
to solemnize a marriage, any provision of law to the contrary
notwithstanding (Chapter 3, Article 1, Section 444[xviii] of the Local
Government Code). When the mayor is temporarily incapacitated to
perform his duties for physical or legal reasons such as, but not limited
to, leave of absence, travel abroad, and suspension from office, the vice
mayor or the highest ranking sangguniang bayan member shall
automatically exercise the powers and perform the duties of the local
chief executive concerned, except the power to appoint, suspend,
dismiss employees which can only be exercised if the period of
temporary incapacity exceeds thirty days (Section 46 in relation to
Section 445[4] of the 1991 Local Government Code). Relevantly, it has
been held that the vice mayor of a municipality acting as Acting Mayor
has the authority to solemnize marriages, because if the vice mayor
assumes the powers and duties of the office of the mayor, when proper,
it is immaterial whether he is the Acting Mayor or merely acting as
mayor, for in both cases, he discharges all the duties and wields the
powers appurtenant to said office (People v. Bustamante, 105 Phil. 64,
citing Laxamana v. Baltazar, 92 Phil. 32).

GOOD FAITH OF PARTIES. Under Article 35(2), if the marriage was

solemnized by a person not legally authorized to solemnize a marriage
and either of the contracting parties believed in good faith that such
solemnizing officer had such authority, then the marriage shall be
considered as valid. This will be discussed in more detail under Article
35(2).
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-
consul, as the case may be, and not elsewhere, except in the
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)

VENUE. Article 8 is directory in nature. Its non-observance will not

invalidate a marriage but can subject the person or persons who cause
the violation to civil, criminal, or administrative liability. Exceptions to
the rule on venue are provided by law, namely: marriages contracted in
articulo mortis or in a remote place in accordance with Article 29 of the
Family Code, and marriages where both of the parties request a
solemnizing officer in writing (Navarro v. Domagtoy, July 19, 1996,
A.M. No. MTJ 96-1088, 72 SCAD 328) in which case the marriage may
be solemnized at a house or place designated by the parties at a house
or place designated by them in a sworn statement to that effect.

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)

PLACE OF ISSUE. The contracting parties should get a mar- riage

license from the local civil registrar of the city or municipal- ity where
either of them resides. If the contracting parties obtain a marriage
license in a place other than the place where either of them reside, it is
merely an irregularity which will not render null and void the marriage
celebrated on the basis of such license (People v. Janssen, 54 Phil. 176).

Article 10. Marriages between Filipino citizens abroad may be

solemnized by a consul-general, consul or vice-consul 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)

CONSULAR OFFICIALS. The duties of the local civil registrar and the
solemnizing officer are performed by the consul-general, consul, or vice
consul of the Republic of the Philippines abroad. Hence, he or she
issues the marriage license and likewise solemnizes the marriage of the
contracting parties, which must be both Filipinos. The marriage
ceremony shall be in accordance with the laws of the Philippines
because Article 17 of the Civil Code pertinently provides that when
contracts, among others, are executed before the diplomatic or consular
officials of the Republic of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be observed in their
execution.

Article 11. Where a marriage license is re- quired, each of the

contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall
specify the following:

. 1) Full name of the contracting parties; 


. 2) Place of birth; 


. 3) Age and date of birth; 


. 4) Civil status; 


. 5) If previously married, how, when and 


where the previous marriage was dissolved or annulled;

. 6) Present residence and citizenship; 


. 7) Degree of relationship of the contracting 


parties;

8) Full name, residence and citizenship of the father;

9) Full name, residence and citizenship of the mother; and

10) Full name, residence and citizenship of the guardian or

person having charge, in case the contracting parties has
neither father nor mother and is under the age of twenty-one
years.

The applicants, their parents or guardians shall not be

required to exhibit their residence certificate in any formality
in connection with the securing of the marriage license. (59a)

PURPOSE OF DOCUMENTARY REQUIREMENTS. It is the concern

of the state to make marriages the secure and stable institution they
should be (Kilburn v. Kilburn, 89 Cal. 46). In this regard, proper
documents must be maintained to serve as proofs for their existence.
Mainly, the task of seeing to it that these documentary proofs are
accomplished is addressed to the local civil registrar to secure publicity
(State v. Walker, 36 Kan. 297, 59 Am. Rep. 556), and to require a record
to be made of marriages contracted (State v. Walker, 36 Kan. 297, 59
Am. Rep. 556). It is also the purpose of these statutes to discourage
deception and seduction, prevent illicit intercourse under the guise of
matrimony, and relieve from doubt the status of parties who live
together as man and wife (State v. Walker, 36 Kan. 297, 59 Am. Rep.
556), by providing competent evidence of the marriage (Reeves v.
Reeves, 15 Okla. 240). The record required to be made also furnishes
evidence of the status and legitimacy of the offspring of the marriage
(State v. Walker, 36 Kan 297, 59 Am. Rep. 556).

MARRIAGE APPLICATION. A marriage application can be obtained

by anybody. Once it is signed and sworn to by the parties and
thereafter filed, the local civil registrar has no choice but to accept the
application and process the same up to the time of the issuance of the
marriage license. If the local civil registrar has knowledge of some legal
impediment, he or she cannot discontinue processing the application.
He must only note down the legal impediments in the application and
thereafter issue the marriage license unless otherwise stopped by the
court (Article 18).

Article 12. The local civil registrar, upon re- ceiving such
application, shall require the presen- tation of the original
birth certificates or, in default thereof, the baptismal
certificates of the contract- ing parties or copies of such
document duly attest- ed by the persons having custody of the
original. These certificates or certified copies of the docu-
ments required by this article need not be sworn to and shall be
exempt from the documentary stamp tax. The signature and
official title of the person is- suing the certificate shall be
sufficient proof of its authenticity.

If either of the contracting parties is unable to produce his

birth or baptismal certificate or a cer- tified copy of either
because of the destruction or loss of the original, or if it is
shown by an affidavit of such party or of any other person that
such birth or baptismal certificate has not yet been received
though the same has been required of the person having
custody thereof at least fifteen days prior to the date of the
application, such party may furnish in lieu thereof his current
residence certificate or an instrument drawn up and sworn to
before the local civil registrar concerned or any public offi- cial
authorized to administer oaths. Such instru- ment shall contain
the sworn declaration of two witnesses of lawful age, setting
forth the full name, residence and citizenship of such
contracting par- ty and of his or her parents, if known, and the
place and date of birth of such party. The nearest of kin of the
contracting parties shall be preferred as wit- nesses, or, in their
default, persons of good reputa- tion in the province or the
locality.

The presentation of the birth or baptismal certificate shall not

be required if the parents of the contracting parties appear
personally before the local civil registrar concerned and swear
to the correctness of the lawful age of said parties, as stated in
the application, or when the local civil registrar shall, by
merely looking at the applicants upon their personally
appearing before him, be convinced that either or both of them
have the required age. (60a)

Article 13. In case either of the contracting parties has been

previously married, the applicant shall be required to furnish,
instead of the birth or baptismal certificate required in the last
preceding article, the death certificate of the deceased spouse
or the judicial decree of the absolute divorce, or the judicial
decree of annulment or declaration of nullity of his or her
previous marriage. In case the death certificate cannot be
secured, the party shall make an affidavit setting forth this
circumstance and his or her actual status and the name and
date of death of the deceased spouse. (61a)

Article 14. In case either or both of the con- tracting parties, not
having been emancipated by a previous marriage, are between
the ages of eigh- teen and twenty-one, they shall, in addition to
the requirements of the preceding articles, exhibit to the local
civil registrar, the consent to their mar- riage of their father,
mother, surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. Such consent shall be
manifested in writing by the interested party who personally
appears before the proper local civil registrar, or in the form of
an affidavit made in the presence of two witnesses and attested
before any official authorized by law to administer oaths. The
personal manifestation shall be recorded in both applications
for marriage license, and the affidavit, if one is executed
instead, shall be attached to said application. (61a)

NO EMANCIPATION BY MARRIAGE. There is no more emancipation

by marriage under the Family Code. Emancipation is attained if the
child reaches the age of 18 years (Article 234, as amended by Republic
Act No. 6809).

PARENTAL CONSENT. The law requires also that if any of the

contracting parties, not being emancipated by a previous marriage, is
at least 18 years old but above and below 21 years of age, the consent of
the father, mother, surviving parent, or guardian, or persons having
legal charge of them, in the order mentioned, must be obtained before a
marriage license can be issued to the contracting parties. However,
considering that Article 236 of the Family Code, as amended by
Republic Act No. 6809, provides that emancipation takes place when a
person reaches the age of majority which is 18 years, a person under
the present law who wishes to get married must necessarily be 18 years
of age and emancipated. This is so because the marrying age and the
age of majority are both 18 years. The reference, therefore, in Article 14
of the Family Code to contracting parties “not having been emancipated
by a previous marriage” has been accordingly repealed and is now of no
legal consequence. Nevertheless, the contracting parties between 18
years old and above but below 21 years of age must still obtain the
consent of the parents as this is required under the second paragraph
of Article 236 of the Family Code. Non-compliance with this
requirement, however, does not make the marriage invalid or void but
merely annullable which means that the marriage is valid until
annulled. It is well-settled that the effect of statutes forbidding the
issuance of marriage licenses without such consent is not to render
such marriages void when solemnized without the required consent,
the statute being regarded as directory only, in the absence of any
provision declaring such marriages absolutely void (18 RCL 442, citing
Browning vs. Browning, 89 Kan. 98).
Parental consent required of parties between the ages of 18 and above
but below 21 does not add anything to the legal capacity of the said
contracting parties as the law itself declares that people 18 years and
above can legally and validly contract marriage. The required parental
consent provision simply means that the said contracting parties “may
not be licensed to marry upon their own consent alone, but that the
consent of their parents must be added thereto; lack of such consent,
however, does not affect the validity of a marriage, but only subjects
those who have neglected to acquire it to the penalties of the law’’
(Cushman v. Cushman, 80 Was. 615).

Preference is given to the father to give consent. If he cannot give

consent, the mother, surviving parent or guardian or persons having
legal charge of them in the order mentioned shall give the consent. It
must be remembered, however, that if any of the contracting parties is
below 18 years of age, the marriage is void regardless of the existence
or non-existence of the consent of the parents. The age of consent of the
contracting parties is the age at which persons are considered in law to
be capable of entering into the marriage relation. It is to be
distinguished from the age below 18 in which the consent of the parents
or guardian may be required by marriage. In this respect, parental
consent may be considered as one of the statutory requirements for
marriage, not owing to the capacity of the parties, but only to the
formalities of a lawful marriage under the statute (52 Am. Jur. 2d
footnote 18, citing Needam v. Needam, 183 Va. 681, 33 SE 2d 268;
Cushman v. Cushman, 80 Was. 615, 142 P 26). It must be noted,
however, that in the Family Code, parental consent is needed in
relation to the procurement of a formal requisite, namely, a valid
marriage license (Article 14) and, therefore, the absence of such
parental consent should only be considered as an irregularity in a
formal requirement which, pursuant to Article 4 of the Family Code,
should not affect the validity of a marriage. However, under Article
45(1) of the Family Code, absence of the required parental consent
makes the marriage annullable which means that it is valid up to the
time it is judicially terminated. In this sense, the legal effect of the non-
procurement of parental consent, though dealing with a formal
requisite of a valid marriage license, is the same as in the case where
there is a defect in an essential requirement. In both instances, the
marriage shall be voidable or annullable under Article 45 of the Family
Code.
Article 15. Any contracting party between the ages 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 guardian refuse to give any
advice, this fact shall be stated in the sworn statement. (62a)

Article 16. In the cases where parental consent or parental

advice is needed, the party or parties concerned shall, in
addition to the requirements of the preceding articles, attach a
certificate issued by a priest, imam or minister authorized to
solemnize marriage under Article 7 of this Code or a marriage
counselor duly accredited by the proper government agency to
the effect that the contracting parties have undergone
marriage counselling. Failure to attach said certificate of
marriage counselling shall suspend the issuance of the
marriage license for a period of three months from the
completion of the publication of the application. Issuance of the
marriage license within the prohibited period shall subject the
issuing officer to administrative sanctions but shall not affect
the validity of the marriage.

Should only one of the contracting parties need parental

consent or parental advice, the other party must be present at
the counselling referred to in the preceding paragraph. (n)

PARENTAL ADVICE. Absence of parental advice does not affect the

marriage. It does not even make the marriage annullable, as non-
advise is not a ground for annulment provided for in Article 45 of the
Family Code. While it is not an essential nor a formal requirement
under Articles 2 and 3,

prescribing parental advice for those 21-25 years of age is in keeping with
Philippine tradition and it does not bar marriage totally. It is just a vehicle to
induce further and more mature deliberation over the decision to get married
(Minutes of the 185th Meeting of the Civil Code and Family Law committees,
June 27, 1987, page 6).
Article 17. The local civil registrar shall pre- pare 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)

DUTY OF THE LOCAL CIVIL REGISTRAR. After the mar- riage

application has been properly filled up and submitted to the local civil
registrar, the latter shall post a notice to inform everybody of the
impending marriage. This notice shall be posted for ten con- secutive
days on a bulletin board outside the office of the local civil registrar
located in a conspicuous place within the building and ac- cessible to
the general public.

The 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. However, if the contracting parties between the ages of
twenty-one and twenty-five do not obtain the advice of the parents or if
such advice is unfavorable, the local civil registrar shall not issue the
marriage license till after three months following the completion of the
publication of the application therefor. If, however, the marriage license
is issued within the said three months and the contracting parties were
able to get married on the basis of such marriage license, the said
marriage is completely valid. It is not even annullable.

Also, in case where parental consent (contracting parties between the

ages of eighteen and above but below twenty-one) or parental advice is
needed, the failure of the parties to attach to the marriage application a
certification that they have undergone marriage counseling provided
for in Article 16 of the Family Code shall suspend the issuance of the
marriage license for a period of three months from the completion of
the publication of the application. Issuance of the marriage license
within the prohibited period shall subject the issuing officer to
administrative sanctions but shall not affect the validity of the
marriage.

Article 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 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)

Article 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)

INVESTIGATIVE POWER OF LOCAL CIVIL REGISTRAR AND

COURT INTERVENTION. It is very important to note, however, that
in case of any impediment known to the local civil registrar or brought
to his attention, he shall merely note down the particulars thereof and
his findings thereon in the application for a marriage license. He is
nonetheless duty bound to issue said license after payment of the
necessary fees unless exempted due to indigence, after the completion
of the period of publication, or after a period of three months from the
completion of such publication in cases where parental advice is
necessary and the same was not obtained as well as in cases where
undergoing marriage counseling is required and a certificate to that
effect was not attached to the marriage application.

the purpose of Article 18, as agreed upon by the committee members, is

“to eliminate any opportunity for extortion” and considering the
observations obtained from the National Census and Statistics Office
by the Civil Code and Family Laws committees that giving much
leeway to the local civil registrar “could be a source of graft” .

Only court intervention directing the non-issuance of the marriage

license can empower the local civil registrar to validly refuse to issue
said license. The court action may be brought by the local civil registrar
himself or by any interested party. Included in the phrase “interested
party” are the contracting parties’ parents, brothers, sisters, existing
spouse, if any, or those which may be prejudiced by the marriage. No
filing fee shall be charged for the petition nor a corresponding bond
required for the issuance of the order.

If, despite an injunction order from the court, the local civil registrar
nevertheless issues a marriage license and a marriage is solemnized on
the basis of such marriage license, the marriage will still be valid
because the validity of the marriage license is not affected by the
violation of the injunction. The issuance of the license despite the
restraining order can be considered only as an irregularity in the
formal requisite of a valid marriage license which shall not affect the
validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.

CRIMINAL LIABILITY OF LOCAL CIVIL REGISTRAR. Inte- estingly,

two of the few provisions of the Marriage Law of 1929 which have not
yet been repealed provide the following:

SEC. 37. Influencing parties in religious respects. — Any municipal secretary

or clerk of the Municipal Court (now the local civil registrar) of Manila who
directly or indirectly attempts to influence any contracting party to marry or
refrain from marrying in any church, sect, or religion or before any civil
authority, shall be guilty of a misdemeanor and shall, upon conviction
thereof, be punished by imprisonment for not more than one month and a
fine of not more than two hundred pesos.

SEC. 38. Illegal issuance or refusal of license. — Any municipal secretary

(now local civil registrar) who issues a marriage license unlawfully or who
maliciously refuses to issue a license to a person entitled thereto or fails to
issue the same within twenty-four hours after the time when, according to
law, it was proper to issue the same, shall be punished by imprisonment for
not less than one month nor more than two years, or by a fine of not less than
two hundred pesos nor more than two thousand pesos.

Article 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)

MARRIAGE LICENSE AND DATE OF ISSUE. The marriage license is

valid only within the Philippines and not abroad. It is good for 120 days
from the date of issue. The date of the signing of the local civil registrar
of the marriage license is the date of the issue. From the date of issue,
it should be claimed by the parties. If it is not claimed and therefore not
used within 120 days, it shall automatically become ineffective.

Article 21. When either or both of the contract- ing 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 ca- pacity to contract marriage, issued by
their respec- tive diplomatic or consular officials.

Stateless persons or refugees from other coun- tries shall, in

lieu of the certificate of legal capac- ity herein required, submit
an affidavit stating the circumstances showing such capacity to
contract marriage. (66a)

CERTIFICATE OR AFFIDAVIT OF LEGAL CAPACITY. Citi- zens of

any foreign country may contract marriage in the Philippines. If both
contracting parties are foreigners and they intend to have their
marriage solemnized by a judge, priest, imam, rabbi, or any minister of
any church or religious sect as provided for in Article 7 of the Family
Code, or the mayor pursuant to the Local Government Code, then they
have to secure a marriage license in the Philippines. Before such
license is issued, they have to submit a certificate of legal capacity. A
certificate of legal capacity is necessary because the Philippines, in so
far as marriage is concerned, adheres to the national law of the
contracting parties with respect to their legal capacity to contract
marriage. Hence, if a sixteen-year-old United States citizen is legally
capacitated to marry in the United States and wants to marry a
Filipino here or another foreigner for that matter, he can do so by
obtaining a certificate of legal capacity stating that in the United
States, persons sixteen years of age can be validly married. He can
thereafter show this to the proper local civil registrar where he is
residing in the Philippines and a marriage license will subsequently be
issued. Without this certification of legal capacity, the local civil
registrar will not issue the marriage license. The law clearly provides
that, as to the foreigner, this is a necessary requisite before a marriage
license can be obtained by him or her. This is an exception to the rule
that the local civil registrar, even if he finds an impediment in the
impending marriage, must nevertheless issue the marriage license
unless, at his own instance or that of an interested party, he is
judicially restrained from issuing the marriage license. If without the
certificate of legal capacity the marriage license was nevertheless
issued, the marriage celebrated on the basis of such marriage license
will still be considered valid as this is merely an irregularity in
complying with a formal requirement of the law in procuring a
marriage license which, according to Article 4, will not affect the
validity of the marriage (Garcia v. Recio, G.R. No. 138322, October 2,
2001).

If they are stateless persons or refugees, they shall be required to file

an affidavit stating the circumstances showing such capacity to
contract marriage in lieu of the certificate of legal capacity.

However, if the contracting parties who are citizens of a foreign country

desire to have their marriage solemnized by their country’s consul-
general officially assigned here in the Philippines, they can get married
before such consul-general without procuring a marriage license here in
the Philippines if their country’s laws allow the same. Such marriage
shall be recognized here in the Philippines.

Article 22. The marriage certificate, in which the parties shall

declare that they take each other as husband and wife, shall
also state:

1) The full name, sex and age of each con- tracting party;

2) Their citizenship, religion and habitual residence;

3) The date and precise time of the celebra- tion of the

marriage;

4) That the proper marriage license has been issued according

to law, except in marriages provided for in Chapter 2 of this
Title;

5) That either or both of the contracting par- ties have secured

the parental consent in appropri- ate cases;

6) That either or both of the contracting par- ties have complied

with the legal requirement re- garding parental advice in
appropriate cases; and

7) That the parties have entered into a mar- riage settlement, if

any, attaching a copy thereof. (67a)

Article 23. It shall be the duty of the person solemnizing the

marriage to furnish either of the contracting parties the
original of the marriage certificate referred to in Article 6 and
to send the duplicate and triplicate copies of the certificate not
later than fifteen days after the marriage, to the lo- cal civil
registrar of the place where the marriage was solemnized.
Proper receipt shall be issued by the local civil registrar to the
solemnizing officer transmitting copies of the marriage
certificate. The solemnizing officer shall retain in his file the
quadruplicate copy of the marriage certificate, the original of
the marriage license and, in proper cas- es, the affidavit of the
contracting party regarding the solemnization of the marriage
in a place other than those mentioned in Article 8. (68a)

PRESUMPTION OF MARRIAGE. That a man and a woman deporting

themselves as husband and wife have entered into a lawful contract of
marriage is a presumption which is considered satisfactory if
uncontradicted, but may be contradicted and overcome by evidence
(Rule 131, Section 5[aa], New Rules of Court of the Philippines). The
law and public policy favor matrimony. Consequently, every
intendment of the law leans toward legalizing matrimony as it is the
basis of human society throughout the civilized world (Perido v. Perido,
63 SCRA 97). This presumption of legality is said to be one of the
strongest known to the law (In re Rash, 21 Mont. 170, 53 Pac 312),
especially where the legitimacy of the children is involved, for the law
presumes morality and not immorality; marriage and not concubinage;
legitimacy and not bastardy

Also, when the celebration of the marriage is once shown, the contract
of marriage, the capacity of the parties, and, in fact, everything
necessary to the validity of the marriage, in the absence of proof to the
contrary, will be presumed (Gaines v. New Orleans, 18 US [L. Ed.] 950).
Thus, credible testimony stating that a wedding took place gives rise to
the presumption that an exchange of vows was made between the
parties declaring that they take each other as husband and wife
(Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD
229). Public policy should aid acts intended to validate marriages and
should retard acts intended to invalidate marriages. This is necessary
for the order of society. SEMPER PRESUMITUR PRO MATRIMONIO
(Always presume marriage) (Adong v. Cheong Seng Gee, 43 Phil. 43).

It is settled law that when a marriage has been consum- mated in accordance
with the forms of the law, it is presumed that no legal impediments existed to
the parties entering into such marriage, and the fact, if shown, that either or
both of the parties have been previously married, and that such wife or
husband of the first marriage is still living, does not destroy the prima facie
legality of the last marriage. The presumption in such case is that the former
marriage has been legally dissolved, and the burden of proving that it has not
rests upon the party seeking to impeach the last marriage (Wenning v.
Teeple, 144 In. 189; Son Cui v. Guepangco, 22 Phil. 216).

PROOF OF MARRIAGE. When the question as to whether or not a

marriage has been contracted arises in litigation, said marriage may be
proved by evidence of any kind (Pugeda v. Trias, 4 SCRA 849). But the
primary or best evidence of a marriage is the marriage contract or the
marriage certificate (Lim Tanhu v. Ramolete, 66 SCRA 425). A mere
photostat copy of a marriage certificate is a worthless piece of paper
(Vda. De Chua v. Court of Appeals, G.R. No. 116835, March 5, 1998)
but if such photostat copy emanated from the Office of the Local Civil
Registrar and duly certified by the local civil registrar as an authentic
copy of the records in his office, such certified photostat copy is
admissible as evidence. If the photostat copies, though not certified by
the office of the local civil registrar, are presented in court without
objection from the opposing parties and consequently admitted by the
court, the said photostat copies are deemed sufficient proof of the facts
contained therein and therefore can be proof of marriage (Sy v. Court of
Appeals, G.R. No. 127263, April 12, 2000). Also, baptismal certificates,
birth certificates, judicial decisions, and family bible in which the
names of the spouses have been entered as married are good evidences
of marriage (Trinidad v. Court of Appeals, 289 SCRA 188. See also
Orfila v. Arellano, 482 SCRA 280, February 13, 2006). However,

x x x Transfer Certificates of Title, Residence Certificates, passports and

other similar documents cannot prove marriage especially so when the
petitioner has submitted a certification from the Local Civil Registrar
concerned that the alleged marriage was not registered and a letter from the
judge alleged to have solemnized the marriage that he has not solemnized
said alleged marriage (Vda. De Chua v. Court of Appeals, G.R. No. 116835,
March 5, 1998).
It has been declared that a certificate of marriage made many years
after the marriage is inadmissible, especially where there was no
register of the marriage in the official records (Gaines v. Relf, 13 US [L.
Ed.] 1071). Relevantly, any officer, priest, or minister failing to deliver
to either of the contracting parties one of the copies of the marriage
contract or to forward the other copy to the authorities within the
period fixed by law for said purpose, shall be punished by
imprisonment for not more than one month or by a fine of not more
than three hundred pesos, or both, in the discretion of the court
(Section 41 of the Marriage Law of 1929).

However, failure to present a marriage certificate is not fatal in a case

where a marriage is in dispute, as the parties can still rely on the
presumption of marriage. Thus, in Rivera v. IAC, 182 SCRA 322, it was
held:

It is true that Adelaido could not present his parents’ marriage certificate
because as he explained it, the marriage records for 1942 were burned during
the war. Even so, he could still rely on the presumption of marriage since it is
not denied that Venancio Rivera and Maria Jocson lived together as husband
and wife and for many years, begetting seven children in all during that time.

In Delgado Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. De

Damian, G.R. No. 155733, January 27, 2006, 480 SCRA 334, where the
absence of a record of the contested marriage was asserted to assail the
existence of the marriage, the Supreme Court, after reviewing the
evidence rejected such assertion by stating the following reasons:

First, although a marriage contract is considered a primary evidence of

marriage, its absence is not always proof that no marriage in fact took place.
Once the presumption of marriage arises, other evidence may be presented in
support thereof. The evidence need not necessarily or directly establish the
marriage but must at least be enough to strengthen the presumption of
marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs.
Guillermo Rustia, the passport issued to her as Josefa D. Rustia, the
declaration under oath of no less than Guillermo Rustia that he was married
to Josefa Delgado and the titles to the properties in the name of “Guillermo
Rustia married to Josefa Delgado,” more than adequately support the
presumption of marriage. These are public documents which are prima facie
evidence of the facts stated therein. No clear and convincing evidence
sufficient to overcome the presumption of the truth of the recitals therein was
presented by petitioners.

Second, Elisa Vda. de Anson, petitioners’ own witness whose testimony they
primarily relied upon to support their position, confirmed that Guillermo
Rustia had proposed marriage to Josefa Delgado and that eventually, the two
had “lived together as husband and wife.” This again could not but
strengthen the presumption of marriage.

Third, the baptismal certificate was conclusive proof only of the baptism
administered by the priest who baptized the child. It was no proof of the
veracity of the declarations and statements contained therein, such as the
alleged single or unmarried (“Señorita”) civil status of Josefa Delgado who
had no hand in its preparation.

Petitioners failed to rebut the presumption of marriage of Guillermo Rustia

and Josefa Delgado. In this jurisdiction, every intendment of the law leans
toward legitimizing matrimony. Persons dwelling together apparently in
marriage are presumed to be in fact married. This is the usual order of things
in society and, if the parties are not what they hold themselves out to be, they
would be living in constant violation of the common rules of law and
propriety. Semper praesumitur pro matrimonio. Always presume marriage.

A marriage, like any other contract, may be proved by parol evidence

(Watson v. Lawrence, 134 La. 48). Testimony by one of the parties or
witnesses to the marriage, or by the person who solemnized the same,
is admissible (Pugeda v. Trias, 4 SCRA 849; People v. Velasco, G.R.
Nos. 135231-33, February 28, 2001) and competent to prove marriage
(Balogbog v. Court of Appeals, G.R. No. 83598, March 7, 1997, 80 SCAD
229). The testimonies must themselves be credible and must proceed
from a witness who is likewise credible. In People v. Ignacio, G.R. No.
107801, March 26, 1997, 81 SCAD 138, the fact of marriage of the
accused-appellant to the victim in the crime of parricide was
established by the Supreme Court on the basis of the oral testimonies
of the witnesses, thus:

Here, apellant not only declared in court that the victim was her fourth
husband but she also swore that they were married before a judge in
Montalban, Rizal. The victim’s son testified that his father and appellant
were husband and wife in much the same way that the appellant’s daughter,
Milagros, held the victim to be her mother’s husband. Appellant’s admission
that she was married to the victim was a confirmation of the semper
praesumitur pro matrimonio and the presumption that a man and a woman
had verily entered into a lawful contract of marriage.

In a case where the complainant alleged in an admininstrative case

that the marriage took place on March 15, 1993 but it appears that, in
court records and pleadings in a previous case which was already
terminated, the complainant stated that it was on June 9, 1993, the
Supreme Court ruled that such allegation in the administrative case
cannot be accepted to disprove that the marriage was celebrated on
June 9, 1993. The Supreme Court held that the complainant himself
admitted in his petition in a case for annulment of marriage, which he
previously filed, that his marriage was celebrated on June 9, 1993. He
was bound by such admission. Moreover, all other evidence led to the
conclusion that the marriage could not have occurred on March 15,
1993. Thus,

The allegation of the complainant that the marriage was actually celebrated
on March 15, 1993 is belied by the documents supporting the application for
marriage such as the Affidavit in Lieu of Legal Capacity to Contract
Marriage for American Citizens, issued on May 19, 1993, and Pre-Marriage
Counseling issued on May 25, 1993. In particular, the Affidavit in Lieu of
Legal Capacity to Contract Marriage for American Citizens was subscribed
and sworn to before the Consul of the United States on May 19, 1993 by
complainant himself. It is difficult to see how a marriage could be celebrated
on March 15, 1993 when the documents necessary for its validity were
available only months later. It is well-settled that entries in official records
made in the performance of a duty by a public officer of the Philippines, or by
a person in the performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated (Young v. Mapayo, AM No. RTJ-00-
1552, May 31, 2000).

With respect to a marriage ceremony, the testimony of an eye- witness

to be sufficient should disclose not only the performance of the
ceremony by someone, but that all the circumstances attending it were
such as to constitute it a legal marriage (State v. Hodgskins, 19 Me.
155, 36 Am. Dec. 702). It has been held, however, that the fact that a
marriage has been solemnized gives rise to the presump-