TERM PAPER IN LEGAL TECHNIQUE AND LOGIC

“MARRIAGE”

Submitted by: Balili, Jai Noreena B.

Submitted to: Atty. Phoebeth Peras

 What is marriage? Marriage is a special contract of permanent union between a
man and a woman entered into in accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during the marriage within
the limits provided by The Family Code of the Philippines. 1It is the union of one man with
one woman for the reciprocal blessings of a domestic home life, and for the birth, rearing
and education of children. It is also a new relation in the maintenance of which the general
public is interested.2 There are two aspects of marriage. First, it is a special contract and
second, it is a status or a relation or an institution. As a status, the principle in contracts
that the parties may, by mutual agreement, put an end to it, cannot certainly apply, for the
consequences of the marriage as a rule are fixed by law. Marriage is different from an
ordinary contract. An ordinary contract is merely a contract, its stipulations are generally
governed by both parties and can be ended by mutual agreement and by other legal
causes while in marriage, both a contract and a social institution, it is generally,
stipulations are fixed by law – not by the parties except in marriage settlement provisions,
and can be dissolved only by death or annulment, not by mutual agreement.

When can we say that a marriage is valid? A marriage is valid when the essential
requisites are present. First, a legal capacity of the contracting parties who must be a
male and a female. This means that the parties must have the necessary age or the
necessary consent of parents in certain cases. There must be no impediment caused by
a prior existing marriage or by certain relationships by affinity (law) or consanguinity
(blood). Any male or female of the age of eighteen years or upwards not under any
impediments may contract marriage. Second, consent freely given in the presence of the
solemnizing officer. Consent refers to the consent of the contracting parties, not parental
consent. Parental consent is in connection with the first requisite referring to legal
capacity. Consent is required because marriage is a contract, a voluntary act. If there is
consent, but it is vitiated by error, fraud, intimidation, force, etc., the marriage is not void;
it is merely voidable, valid until annulled. There are also formal requisites of marriage.
First formal requisite, the authority of the solemnizing officer, second, a valid marriage
license except in the cases either or both of the contracting parties are at the point of
death and shall remain valid even if the ailing party subsequently survives, third, if the
residence of either party is so located that there is no means of transportation to enable
such party to appear personally in the local civil registrar, the solemnizing officer shall
state in an affidavit executed before the local civil registrar or any other person legally
authorized to administer oaths that the marriage was performed in articulo mortis or that
the residence of either party, specifying the barrio or barangay, is so located that there is
no means of transportation to enable such party to appear personally before the local civil
registrar and that the officer took the necessary steps to ascertain the ages and

1
Article 1 of the Family Code of the Philippines
2
Perido v. Perido, 63 SCRA 97
relationship of the contracting parties and the absence of a legal impediment to the
marriage. And third formal requisite, 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. The original of the affidavit, together with a legible copy
of the marriage contract, shall be sent by the person solemnizing the marriage to the local
civil registrar of the municipality where it was performed within the period of thirty days
after the performance of the marriage.

A marriage may be solemnized by any incumbent member of the judiciary within

the court’s jurisdiction; any priest, rabbi, imam, or minister of any church or religious sect
duly authorized by his church or religious sect and registered with the civil registrar
general, acting within the limits of the written authority granted him by his church or
religious sect and provided that at least one of the contracting parties belongs to the
solemnizing officer’s church or religious sect. it 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 counsel general, consul or vice-consul as the case may be and not elsewhere.

A marriage also in articulo mortis between passengers or crew members may also
be solemnized by a ship captain or by an airplane pilot not only while the ship is at the
sea or the plane is in flight, but also during the stopovers at ports of call. A military
commander of a unit who is a commissioned officer, shall likewise have authority to
solemnize marriages in articulo mortis between persons within the zone of military
operations, whether members of the armed forces or civilians. Marriages also among
Muslims or among the ethnic cultural communities may be performed validly without the
necessity of a marriage license, provided that they are solemnized in accordance with
their customs, rites or practices. And lastly, no license shall be necessary for the marriage
of a man and a woman who have lived together as husband and wife for at least five
years and without any legal impediment to marry each other. There is necessity for a
ceremony or celebration. A ceremony is required although no particular form for it is
needed. And it must be before a duly authorized person, it need not to be written; signs
would be sufficient.3

If a man and a woman deport themselves as if they were husband and wife, they
presumed to be validly and legally married to each other and this presumption is not
rebutted by a mere denial by a man or woman. 4 It can be deduced that to be considered
void on the ground of absence of a marriage license, the law requires that the absence
of such marriage license must be apparent on the marriage contract, or at the very least,
supported by a certification from the local civil registrar that no such marriage license was
issued to the parties.5

3
Family Code of the Philippines
4
Rep v Cagandahan Gr. No 166676
5
Alcantara v Alcantara Gr. No 167746
 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 place allowed by his
Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the
entire Philippines to solemnize marriages, regardless of the venue, as long as the
requisites of the law are complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and not beyond. Where a
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.

A marriage contracted by any person during the subsistence of a previous

marriage shall be null and void, unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive years and the spouse present had
a well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Articles 391 of the Civil Code, an absence of only two years shall be sufficient. For the
purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without prejudice to the effect of
reappearance of the absent spouse. There is nothing ambiguous or difficult to
comprehend in this provision. In fact, the law is clear and simple. Even if the spouse
present has a well-founded belief that the absent spouse was already dead, a summary
proceeding for the declaration of presumptive death is necessary in order to contract a
subsequent marriage, a mandatory requirement which has been precisely incorporated
into the Family Code to discourage subsequent marriages where it is not proven that the
previous marriage has been dissolved or a missing spouse is factually or presumptively
dead, in accordance with pertinent provisions of law.6

A certification from the local civil registrar is adequate to prove the non-issuance
of a marriage license and absent any suspicious circumstance, the certification enjoys
probative value, being issued by the officer charged under the law to keep a record of all
data relative to the issuance of a marriage license. Clearly, if indeed Benjamin and Sally
entered into a marriage contract, the marriage was void from the beginning for lack of a
marriage license. The documentary and testimonial evidence proved that there was no
marriage between Benjamin and Sally. As pointed out by the trial court, the marriage
between Benjamin and Sally "was made only in jest" and "a simulated marriage, at the
instance of Sally, intended to cover her up from expected social humiliation coming from
relatives, friends and the society especially from her parents seen as Chinese
conservatives. In short, it was a fictitious marriage. The fact that Benjamin was the
informant in the birth certificates of Bernice and Bentley was not a proof of the marriage
between Benjamin and Sally. This Court notes that Benjamin was the informant in

6
Navarro v Domagtoy Am No. mtj-06-1088
Bernice’s birth certificate which stated that Benjamin and Sally were married on 8 March
1982 while Sally was the informant in Bentley’s birth certificate which also stated that
Benjamin and Sally were married on 8 March 1982. Benjamin and Sally were supposedly
married on 7 March 1982 which did not match the dates reflected on the birth certificates.
We see no inconsistency in finding the marriage between Benjamin and Sally null and
void ab initio and, at the same time, non-existent. Under Article 35 of the Family Code, a
marriage solemnized without a license, except those covered by Article 34 where no
license is necessary, "shall be void from the beginning." In this case, the marriage
between Benjamin and Sally was solemnized without a license.7

In Ninal v. Bayadog, , where the contracting parties to a marriage solemnized

without a marriage license on the basis of their affidavit that they had attained the age of
majority, that being unmarried, they had lived together for at least five (5) years and that
they desired to marry each other, the Supreme Court ruled as follows:

In other words, the five-year common-law cohabitation period, which is counted

back from the date of celebration of marriage, should be a period of legal union had it
not been for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at any time within the 5
years and continuity that is unbroken. Otherwise, if that continuous 5-year cohabitation is
computed without any distinction as to whether the parties were capacitated to marry
each other during the entire five years, then the law would be sanctioning immorality
and encouraging parties to have common law relationships and placing them on the same
footing with those who lived faithfully with their spouse. Marriage being a special
relationship must be respected as such and its requirements must be strictly observed.
The presumption that a man and a woman deporting themselves as husband and wife is
based on the approximation of the requirements of the law. The parties should not be
afforded any excuse to not comply with every single requirement and later use the same
missing element as a pre-conceived escape ground to nullify their marriage. There should
be no exemption from securing a marriage license unless the circumstances clearly fall
within the ambit of the exception. It should be noted that a license is required in order to
notify the public that two persons are about to be united in matrimony and that anyone
who is aware or has knowledge of any impediment to the union of the two shall make it
known to the local civil registrar.8

In the case of Republic v. Dayot, the case pertains to a ratification of marital

cohabitation under Article 76 of the Civil Code, which provides: ART. 76. No marriage
license shall be necessary when a man and a woman who have attained the age of
majority and who, being unmarried, have lived together as husband and wife for at least
five years, desire to marry each other. The contracting parties shall state the foregoing

7
Go-bangayan v Bangayan Gr. No 201061
8
Niñal v. Bayadog G.R. No. 133778
facts in an affidavit before any person authorized by law to administer oaths. The official,
priest or minister who solemnized the marriage shall also state in an affidavit that he took
steps to ascertain the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage. The reason for the law, as espoused by the
Code Commission, is that the publicity attending a marriage license may discourage such
persons who have lived in a state of cohabitation from legalizing their status. It is not
contested herein that the marriage of Jose and Felisa was performed without a marriage
license. In lieu thereof, they executed an affidavit declaring that they have attained the
age of maturity; that being unmarried, they have lived together as husband and wife for
at least five years; and that because of this union, they desire to marry each other. One
of the central issues in the Petition at bar is thus: whether the falsity of an affidavit of
marital cohabitation, where the parties have in truth fallen short of the minimum five-year
requirement, effectively renders the marriage void ab initio for lack of a marriage license.9

The Court holds that the trial court had jurisdiction to determine the validity of
the marriage between petitioner and respondent. The validity of a void marriage may be
collaterally attacked. Thus, in Niñal v. Bayadog, we held: However, other than for
purposes of remarriage, no judicial action is necessary to declare a marriage an absolute
nullity. For other purposes, such as but not limited to determination of heir ship, legitimacy
or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal
case for that matter, the court may pass upon the validity of marriage even in a suit not
directly instituted to question the same so long as it is essential to the determination of
the case. This is without prejudice to any issue that may arise in the case. When
such need arises, a final judgment of declaration of nullity is necessary even if the
purpose is other than to remarry. The clause "on the basis of a final judgment
declaring such previous marriage void" in Article 40 of the Family Code connotes that
such final judgment need not be obtained only for purpose of remarriage.10

A marriage may be annulled, valid until annulled, for any of the following reason.
That the party whose behalf sought to have the marriage annulled was eighteen years of
age or over but below twenty-one, and the marriage was solemnized without the consent
of the parents, guardian or person having substitute parental authority over the party, in
that order, unless after attaining the age of twenty-one, such party freely cohabited with
the other and both lived together as husband and wife; that either was of unsound mind,
unless such party, after coming to reason, freely cohabited with the other as husband and
wife; that the consent of other party was obtain by fraud, unless such party afterwards,
with full knowledge of the facts constituting the fraud, freely cohabited with the other as
husband and wife; that the consent of the either party was obtained by force, intimidation,
or undue influence, unless the same having disappeared or ceased, such party thereafter
freely cohabited with the other as husband and wife; that either party was physically
incapable of consummating the marriage with the other and such incapacity continues

9
Republic v Dayot Gr. no. 175581 and 179474
10
De-castro v Assidao-de castro Gr. No 160172
and appears to be incurable; and lastly, that either party was afflicted with asexually
transmissible disease found to be serious and appears to be incurable.11

The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of

Voidable Marriages (A.M. No. 02-11-10-SC) does not apply in a petition to recognize a
foreign judgment relating to the status of a marriage where one of the parties is a citizen
of a foreign country. For Philippine courts to recognize a foreign judgment relating to the
status of a marriage where one of the parties is a citizen of a foreign country, the
petitioner only needs to prove the foreign judgment as a fact under the Rules of Court.
To be more specific, a copy of the foreign judgment may be admitted in evidence and
proven as a fact under Rule 132, Sections 24 and 25, in relation to Rule 39, Section 48(b)
of the Rules of Court. Petitioner may prove the Japanese Family Court judgment through
(1) an official publication or (2) a certification or copy attested by the officer who has
custody of the judgment. If the office which has custody is in a foreign country such as
Japan, the certification may be made by the proper diplomatic or consular officer of the
Philippine foreign service in Japan and authenticated by the seal of office. A foreign
judgment relating to the status of a marriage affects the civil status, condition and legal
capacity of its parties. However, the effect of a foreign judgment is not automatic. To
extend the effect of a foreign judgment in the Philippines, Philippine courts must
determine if the foreign judgment is consistent with domestic public policy and other
mandatory laws. Article 15 of the Civil Code provides that laws relating to family rights
and duties, or to the status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad. This is the rule of lex nationalii in
private international law. Thus, the Philippine State may require, for effectivity in the
Philippines, recognition by Philippine courts of a foreign judgment affecting its citizen,
over whom it exercises personal jurisdiction relating to the status, condition and legal
capacity of such citizen. A petition to recognize a foreign judgment declaring a marriage
void does not require relitigation under a Philippine court of the case as if it were a new
petition for declaration of nullity of marriage. Philippine courts cannot presume to know
the foreign laws under which the foreign judgment was rendered. They cannot substitute
their judgment on the status, condition and legal capacity of the foreign citizen who is
under the jurisdiction of another state. Thus, Philippine courts can only recognize the
foreign judgment as a fact according to the rules of evidence. There is therefore no
reason to disallow Fujiki to simply prove as a fact the Japanese Family Court judgment
nullifying the marriage between Marinay and Maekara on the ground of bigamy. While the
Philippines has no divorce law, the Japanese Family Court judgment is fully consistent
with Philippine public policy, as bigamous marriages are declared void from the beginning
under Article 35(4) of the Family Code. Bigamy is a crime under Article 349 of the Revised
Penal Code. Thus, Fujiki can prove the existence of the Japanese Family Court

11
Family Code of the Philippines
judgment in accordance with Rule 132, Sections 24 and 25, in relation to Rule 39,
Section 48(b) of the Rules of Court.12

The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both our
Constitution and our laws cherish the validity of marriage and unity of the family. Thus,
our Constitution devotes an entire Article on the Family, recognizing it 'as the foundation
of the nation.' It decrees marriage as legally 'inviolable,' thereby protecting it from
dissolution at the whim of the parties. Both the family and marriage are to be 'protected'
by the state.13 It is therefore to value marriage as it composes a family that can make our
society more progressive. Being into a marriage is not easy as we speak, but we must
bear in mind that each of the family members has its own responsibility to fulfill. Especially
the foundation of the mother and the father from their marriage. Upon those mentioned
above in different cases, the courts value the basic unit of the society. It protects the
family from being broke. Because having a complete family may help our country and
society survive from various problems that comes into the ways of each of us. Before
deciding to take marriage, we must make sure that we can handle the choices and
consequences when especially problems from different attitudes starts to be a conflict.
The right one will at the right time, so we must not hurry because it’s not a competition,
we’ll take it slowly but surely.

12
Fujiki v Marinay Gr. No 196049
13
Marcos v Marcos Gr No 136590