The Legal Aspect of Marriage
content provided by Atty. Ryan L. Tanjutco and tanjutcolaw.com
NOTE: Please refer to the Family Code of the
Philippines for references to any of its article as mentioned in some
items below.
How does the Family Code of the Philippines
define marriage?
Marriage is a special contract of permanent
union between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution whose
nature, consequences, and incidents are governed by law and not
subject to stipulation, except that marriage settlements may fix
the property relations during the marriage within the limits provided
by this Code.
Who are authorized to solemnize marriages?
(1) Any incumbent member of the judiciary
within the 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 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 the case mentioned
in Article 31 of the Family Code;
Any military commander of a unit to which a chaplain is assigned,
in the absence of the latter, during a military operation, likewise
only in the cases mentioned in Article 32 of the Family Code;
(5) Any consul-general, consul or vice-consul in the case provided
in Article 10 of the Family Code. *
What are the essential requisites of
marriage?
No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties
who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
* What are the formal requisites of marriage?
The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases where the same
is exempted; and
(3) A marriage ceremony which takes place with the appearance of
the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and wife
in the presence of not less than two witnesses of legal age. * How
old must I be to get validly married?
Any male or female of the age of eighteen
years or upwards not under any of the impediments mentioned in Articles
37 and 38, may contract marriage.
My American husband was granted a divorce,
can I now validly remarry?
Yes. Under the 2nd paragraph of Article 26
of the Family code, where a marriage between a Filipino citizen
and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or
her to remarry, the Filipino spouse shall have capacity to remarry
under Philippine law.
What kind of marriages are exempted
from marriage license?
(1) In case either or both of the contracting
parties are at the point of death, the marriage may be solemnized
without necessity of a marriage license and shall remain valid even
if the ailing party subsequently survives.
(2) If the residence of either party is so located that there is
no means of transportation to enable such party to appear personally
before the local civil registrar, the marriage may be solemnized
without necessity of a marriage license.
(3) A marriage in articulo mortis as defined in the Family Code.
(4) Marriages among Muslims or among members of the ethnic cultural
communities may be performed validly without the necessity of marriage
license, provided they are solemnized in accordance with their customs,
rites or practices.
(5) No license shall be necessary for the marriage of a man and
a woman who have lived together as husband and wife for at least
five years and without any legal impediment to marry each other.
The contracting parties shall state the foregoing facts in an affidavit
before any person authorized by law to administer oaths. The solemnizing
officer shall also state under oath that he ascertained the qualifications
of the contracting parties are found no legal impediment to the
marriage.
Which marriages does the law consider
void from the beginning?
(1) Those contracted by any party below eighteen
years of age even with the consent of parents or guardians;
(2) Those solemnized by any person not legally authorized to perform
marriages unless such marriages were contracted with either or both
parties believing in good faith that the solemnizing officer had
the legal authority to do so;
(3) Those solemnized without license, except those covered the preceding
Chapter;
(4) Those bigamous or polygamous marriages not failing under Article
41;
(5) Those contracted through mistake of one contracting party as
to the identity of the other; and
(6) Those subsequent marriages that are void under Article 53.
(7) A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.
(8) Between ascendants and descendants of any degree; and
(9) Between brothers and sisters, whether of the full or half blood.
(10) Between collateral blood relatives whether legitimate or illegitimate,
up to the fourth civil degree;
(11) Between step-parents and step-children;
(12) Between parents-in-law and children-in-law;
(13) Between the adopting parent and the adopted child;
(14) Between the surviving spouse of the adopting parent and the
adopted child;
(15) Between the surviving spouse of the adopted child and the adopter;
(16) Between an adopted child and a legitimate child of the adopter;
(17) Between adopted children of the same adopter; and
(18) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own spouse.
Are marriages celebrated overseas between
foreigners recognized in the Philippines?
In accordance with the principle of lex loci
celebrationis, marriages celebrated abroad between foreigners are
also valid in the Philippines. However, if such marriage is highly
immoral, such as when it is bigamous, polygamous or universally
considered as incestuous, it cannot be given recognition here.
The term "universally considered incestuous"
covers marriages between ascendants and descendants or those between
brothers and sisters, whether they be illegitimate or legitimate.
Thus, marriages between two French first cousins celebrated in Paris,
will be recognized as valid here not only because of lex loci celebrationis,
but also because such marriage is not considered to be universally
incestuous.
What law shall govern marriages of foreigners
in the Philippines?
Whenever foreigners are to be married in
the Philippines, their capacity to marry shall be governed by their
national law, as can be gleaned from Article 21 of the family Code
which states that:
"When either or both of the contracting
parties are citizens of a foreign country, it shall be necessary
for them before a marriage license can be obtained, to submit a
certificate of legal capacity to contract marriage, issued by their
respective diplomatic or consular officials."
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About the Author: Atty. Ryan L. Tanjutco specializes in the practice of family and marital law. For
more information, please visit www.tanjutcolaw.com.
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