Persons- being that has the capacity to possess legal rights and obligations 2 kinds of persons: 1.

Natural- humans beings created by God through the intervention of parents 2. Juridical- persons created by law; organizations a. Natural personsstockholders, artificial beings b. Group of artificial persons- corporations Art. 37: Juridical capacity (inherent in every natural persons) - the fitness to be subject of legal relations Capacity to act (merely acquired) - the power to do acts with legal effect Juridical capacity may exist without capacity to act but capacity to act cant exist without juridical capacity Art 40- birth determines civil personality, considered natural person, w/o birth there is no legal or civil capacity Art 40 in relation to art 41- for civil purposes it must be complied with, only requirement is that it must be alive at the time of complete delivery from the maternal womb even if it dies it will be considered a person and has a legal capacity considered a person, a being having a civil personality upon birth, ergo before birth THERE IS NO NATURAL PERSON TO SPEAK OF if there is no birth, there has no right. answer: NO. for civil purposes, an unborn child, a fetus still inside the womb, even if no birth IS CONSIDERED BORN so long as it complies the condition under the law - must be born

Art 41-IF less than 7 months (intrauterine life): the child must live at least 24 hours after its complete delivery from the material womb -IF born at least 7 months: born if it is alive upon complete delivery from the material womb, so long as it is alive on the very moment on the delivery, despite if it dies a few hours after Unborn fetus not delivered has no civil rights? Answer. NO an unborn child enjoys PRESUMPTIVE CIVIL/LEGAL PERSONALITY . even if inside the womb, even if it is not considered as a person, it enjoys civil personality Rights to be supported rights to be a recipient of a donation

Case: Continental Steel manufacturing v. arbitrator - while the child is unborn, it enjoys PRESUMPTIVE CIVIL PERSONALITY. On that basis, it is entitled to a support and can be qualified as DEPENDENT. - begining of civil personality should not be confused by beginning of life. - Life begins at conception. Civil personality starts at birth Case: Geluz v. Ca - while the unborn child enjoys the presumptive civil personality, cannot be invoked by the parents for purposes of claims for damages on behalf of the unborn child. - SC held that, A fetus, not being born, it has no actual civil personality. Parents cannot claim ON BEHALF of the fetus (actual damages). But the PARENTS CAN CLAIM on own THEIR RIGHT AS PARENTS for moral damages (mental anguished suffered) - Parents are civil persons, their rights were violated on the death of the

child. BUT NOT ON BEHALF OF THE CHILD - Civil personality is EXTINGUISHED BY DEATH (ART 42) Art. 43 of the Civil Code (WILL BE INCLUDED IN THE MIDTERMS- MAKE SURE TO DETERMINE THE PURPOSES OF ANY PRESUMPTION!!!) 1. PRINCIPLE OF PRESUMPTION ON SIMULTANEITY IN DEATH (Rule 131 Sec 3 par kk)- in the absence of evidence, there is the presumption of who died first between two persons who died at the same time for purposes of succession. The presumption here is that both died at the same time so NO ONE CAN INHERIT, this is ONLY FOR THE PURPOSES OF SUCCESSION.

whereabouts of that vessel. For purposes of remarriage: presumption of death is only 4 years but if there is danger of death, only 2 years.

Presumption of death applies only if the whereabouts of the person missing is unknown; it cant apply if the person is only proven dead. (Lucero Case: presumption of death does not apply because it is clear that Lucero perished together with the vessel during their voyage which was caught in the middle of the storm. There was preponderance of evidence of actual death based on the information before the cause of death) 3. Presumption of survivorship(read Rule 131 Sec 5 par jj), When two persons perished in the same calamity like shipwreck, battle, etc and there are no circumstances of who died first. If both are under age of 15 who died under the same calamity, the older one is presumed to have survived or the last to die. If both are more than the age of 60, the younger one is presumed to have survived or the last to die. If one below 15 and the other is over 60, the younger one is presumed to have survived. If both are between the ages of 15 and 60 and the genders are different, the male is presumed to have survived. If both have the same sex, the older one is

2. Rule 131 Sec 3 par w of the rules of court- provide the presumption of death For purposes other than possession, a person is presumed dead if his whereabouts are unknown for a period of at least 7 years. For purposes of succession, the presumption of death operates after the person went missing for a period of at least 10 years. Missing- means that there is no information about the whereabouts of the person missing. For the purposes of succession: If the person is more than 75 years old, only 5 years but if there is danger of death, the period is only 4 years from the time the boat or the airplane is missing and there is no information about the

presumed to have survived. Applies on purposes OTHER THAN SUCCESSION. If for purposes of succession, the principle of simultaneity will govern. Age or sexes doesnt matter. Important provisions about DEATH: - rules on PRESUMPTION ON SIMULTEANOUS DEATH. - when two or more persons die, HE WHO ALLEGES the death of the OTHER, shall have the burden of proof. - provision only for purposes of SUCCESSION. SUCCESSION: Someone dies and properties is transmitted to the heirs requriements: one who dies(predecessor) and who survives (heir of the deceased) Relevance: Succession to apply, the decedent must have died AHEAD of the heir so there is transmission of property If the heir and the decedent DIED SIMULTANEOUSLY (died together ex. husband and wife died on conflagration) no transmission of rights If husband dies, wife inherits and vice versa For purposes of succession: ART. 43, it must be determined who died first so we can talk about succession. HUSBAND- WIFE : Transmission of rights ART. 43: NO EVIDENCE TO WHO DIED FIRST. in the absence of proof: THEY DIED TOGETHER, NO TRANSMISSION OF RIGHTS Ex: ms duran has existing 1 million bank account which she owns exclusively. Suppose one day, they went vacation on board a bus, they

were hi-jacked and both of them died during the event. - If it can be established that ms. duran died a few minutes after mr. carreon, 1 million goes to carreon, carreon being survived by his heirs, 1 million will go to the heirs of carreon. -if ART.43: No evidence, both of them died simultaneously, 1 million will be inherited by ms. durans heirs. APPLIES ONLY FOR PURPOSES OF SUCCESSION. In relation to: (rule 131 par.kk rules of court) legal basis: Rule 131 par. JJ of rules on evidence - provides the rule on the presumption of SURVIVORSHIP SURIVIVORSHIP: if 2 or more persons died simultaneously, and no evidence to whom who died first, the following rule shall apply 1. if both are in the age below 15 and died simultaneously: PRESUMPTION is the OLDER is presumed to have SURVIVED ( the younger died first) - Ex: during the lifetime of mrs. duran, she obtained an insurance policy on her life with the husband as a BENEFICIARY, rule is for the beneficiary to be entitled to the insurance policy, it is required that ms. duran should died ahead so that the beneficiary mr. Carreon can received the beneficiary Suppose they died on the same calamity, ms. duran is 10 yr old and mr. carreon is 12, PRESUMPTION that mr. carreon survived and ms. duran died ahead hence, mr. carreon inherits the insurance policy, and because mr. carreon died, it is the HEIR of mr. carreon inherits (BY VIRUTE OF INSURANCE CONTRACT NOT SUCESSION) 2nd rule: if BOTH MORE THAN 60 (above): THE YOUNGER ONE IS PRESUMMED TO HAVE SURVIVED.

3rd rule: if one is below 15 and the other is above 60: THE YOUNGER IS THE PRESUMMED TO HAVE SURVIVED 4th rule: if one is BELOW 15 or above 60 and the other is between 15 and 60: the latter is presumed to have survived 5th rule: MALE IS PRESUMED TO HAVE SURVIVED (if both is between 15 60) 6th rule: If sex is the same: THE OLDER PRESUMED TO SURVIVE and the former have died ahead Rule 131: par.W: PRESUMPTION OF DEATH - if one disappears, for a period of 7 years and his whereabouts remain unknown, he is presumed to be DEAD (BUT ONLY FOR PURPOSES OTHER THAN SUCCESION). (NOT INCLUDING SUCESSION, ORDINARY DISAPPEARANCE) Purposes of succession: REQUIRED PERIOD IS 10 YEARS - If one who disappeared is more than 75 years old, the presumption of death takes place after 5 years including succession 7-10-5: ORDINARY DISAPPEARANCE ONLY DISAPPEARANCE THROUGH DANGER OF DEATH DANGER OF DEATH (person disappears on ship or plan or during military operation): takes place only AFTER 4 YEARS FOR PURPOSES OF REMARRIAGE: required period of absence is 4 years (UNDER PAR. W in relation to ART. 41 of the FC) 2 years if there is danger of death Applies if there is no PREPONDERANT EVIDENCE that this person although missing, is not dead because if there is preponderant of evidence, that the

person is already dead, NO NEED TO WAIT FOR THE REQUIRED YEARS for death to take place. (Lucero) if the fact of death is established, there is no need to wait for the required years

Another case: (Victoria shipping) - There is a preponderant evidence that the crew jump off the ship and therefore died on the spot _______________________________________ FAMILY CODE Marriage is both status and provides rights and obligations on the married parties. Is special contract in lieu with public interest. The requirement of marriage license is the manifestation of the States interest in marriages. Marriage must only be between a man and a woman. Same sex marriage is not recognized because it is against public policy. The Supreme Court declared that Gender can be determined at the time of birth by examining the genital. Our laws does not recognize sex change, so if the person is determined to be in that gender, he is considered to be in that gender all throughout even though he/she changed his/her sex organ or genitals. (Republic vs Cagandahan case: the person has an intersex disorder or who has the two different genitals or sexual organs; the determining factor here is the personal choice of the person of what sex he will choose after reaching the age of majority) Essential Requisites: 1. Legal capacity of the contracting party- gender/sex, age, state of being previously

married, absence of any legal impediment (article 37incentous marriages and article 38-marriages which are void for reasons against public policy), failure to comply with the requirements in article 53 in relation to article 52 of the family code(requirement of the recording of decree of nullity of marriage, legal separation, liquidation, partition, distribution of community and conjugal property and the delivery of presumptive legitimes; failure to comply renders the marriage void) 2. Consent freely given in the presence of a solemnizing officer a. Absence of consent- no consent at all (in the case of marriage that took place in a movie or play and the mistake of identity therefore it is void ab initio because of the absence of consent) b. Vitiated consent- consent not freely given or those obtained through fraud, intimidation, force or violence (is not void but only voidable) Formal Requisites: 1. Authority of the Solemnizing officer(absence of this formal requisite renders the marriage void unless either or both the contracting party honestly believed that the solemnizing officer has the authority to solemnize the marriage or good faith on the part of either or both contracting parties)legally authorized to solemnize marriage (Art 7 of FC):

a. Incumbent members of the judiciary but only within their territorial jurisdiction, members of the Supreme court and court of appeals their jurisdiction is within the entire country. Effects of judges solemnizing beyond their territorial jurisdiction: i. irregularity in the formal requisite of marriage thus the marriage is still valid but the solemnizing judge will be held civilly, administratively and criminally liable b. priest, inam, rabbi, minister of any church or religious sect- provided at least one of the contracting party belongs to that religious sect and that solemnizing officer must solemnize marriage in accordance with the authority given to him by its religious sect (lack of these requisites will only constitute into a mere irregularity in the formal requisite thus doesnt render the marriage void) c. ship captain or airplane chief(limited only to marriages in articulo mortis)- only marriages where either or both of the contracting parties are at the point of death or marriage in articulo mortis. Marriage in articulo mortis must be between crew members and passengers during flight/transit or stop overs. An assistant pilot

is NOT AUTHORIZED to solemnize marriage in articulo mortis. If the pilot himself is one of the contracting parties, there is can be no solemnization of marriage unless there are other solemnizing officers during flight such as judges, priests, military unit commander because they can also solemnize marriages during articulo mortis d. military unit commander(limited only to marriages in articulo mortis)- must be commissioned and authority to solemnize marriage if that unit there is a chaplain but the chaplain is not ready, only within the zone of military operation, and marriage between civilians and soldiers within the zone of military operation e. mayor and vice-mayor within their respective local government (Local Government Code) f. consul, consul general or vice-consul- only between Filipinos who contract marriage abroad where that consular officer is designated or assigned 2. Valid marriage license- starts with the application on the part of the contracting parties by filing the application form, must submit basic documents in support of the issuance of the marriage license: original copy of birth certificate or in the absence of the original copy of the birth certificate, the baptismal certificate which are

certified copies, in default of a birth certificate and baptismal certificate, file an affidavit preferably executed by the contracting parties to show that they have the capacity to enter into marriage in lieu with the requirements of birth or baptismal certificate. If one or both of the contracting parties are between the ages between 18-20, in addition to the basic documentary requirements, they are also required to submit written parental consent; failure to acquire parental consent renders the marriage voidable. If one or both of the contracting parties are between ages 21-25, they are also required to submit written parental advice; the failure to acquire this or the parental advice is not favorable, the issuance of the marriage license will be suspended for a period 3 months after the complete publication of the application but will not be a ground for the denied of a marriage license, it will only serve to delay the issuance of the marriage license. If either or both parties are previously married, they are required to submit their divorce decree or nullity of marriage. If either or both of the applicants are aliens, they are also required to submit a certificate of legal capacity executed by their respective diplomatic or consular official stationed in the Philippines. If both parties are stateless individuals, instead of a certificate of legal capacity they are required to submit an affidavit stating the facts and circumstances of their capacity to contract marriage. The law or art 21 is silent on what law will govern over these stateless individuals with regards to their legal capacity to marry. In this case, domiciliarity will apply or

the laws of the country where the stateless individual has his domicile maybe permanent or temporary domicile. After all the requirements are complied with it will then be submitted the local civil registrar. Can only file in the local civil registrar in the place where at least 1 of the contracting parties in a residence of the place where the local civil registrar is applied or given. Failure to comply with this doesnt affect the validity of marriage rather it is only an irregularity in the formal requisite. The application shall be published in the bulletin board in the office for the purpose for providing information whether there is the existence of legal impediments of either or both parties. The local civil registrar will only write down the requirements or issues the marriage license unless the court orders the registrar to prevent the issuance of the marriage license if either or both parties are suffering from any legal impediment. There must be a case filed to the court so that the issuance of the marriage license will be prevented otherwise the registrar will issue the marriage license. Instances where a marriage license is not needed: a. Marriage in articulo mortis (Art 27)- at least one of the witnesses of the marriage shall state the names of the parties in the marriage contract and the solemnizing officer shall certify that he ascertain the legal capacity of the parties and determine if there is no legal impediment that will prevent from the

solemnization of the marriage b. In instances where either or both parties residing in a place where there is no means or available transportation to go to the office of the civil registrar (Art 28) c. Marriages between Muslims and other ethnic communities provided that they are valid in accordance with their own laws (Art 33) d. Marital cohabitation (Art 34)- where both the contracting parties agreed to cohabit for at least 5 years; to encourage to the parties to legitimize their marriage and to spare them for shame for not having a legitimate marriage (Ninal vs Badayog and Dayot vs Dayot: cohabitation of a period of 5 continuous yrs must be free from any legal impediment during the entire period, their cohabitation must be a valid union) (Manzano Case: laid down the requisites: parties are cohabiting for a period of 5 yrs, absence of any legal impediment must be present at the time of marriage regardless of the presence of legal impediments before the marriage; here it is not required that the absence of the legal impediment must be during the 5 yr cohabiting period it is only required during the time of marriage). The Ninal and Dayot case

should be the controlling or binding case because at the time of the decision of this case the effective law is the family code (article 34) while in the manzano case, the effective law at that time was the civil code (article 76). Legal capacity to enter into marriage should be determined at the time of marriage. 3. Valid marriage ceremony- takes place in the presence of a solemnizing officer where the contracting parties personally declare that they take each other as husband and wife in the presence of at least 2 witnesses of legal age. Most essential elements are the PERSONAL DECLARATION, the PRESENCE OF THE SOLEMNIZING OFFICER, and the PRESENCE OF AT LEAST 2 WITNESSES OF LEGAL AGE. Any failure in compliance with these elements will not affect the validity of marriage but is only an irregularity in the formal requisite; the person responsible of such will be held criminally, civilly, and administratively liable. Personal Declaration does not specifically specifies oral declaration can be manifested in the marriage certificate. Absence of the presence of the solemnizing officer renders the marriage void. (Lucio Murigo vs PP case: the signing of the marriage certificate in the absence of the solemnizing officer renders the marriage void) Signing of the marriage certificate without the presence of the solemnizing officer renders the marriage invalid because of the absence of the formal requisite. If solemnized by the judge, the marriage

should take place in the judges chamber or in an open court. If by the priest, in the church or chapel. When the party requests in writing that the marriage be solemnized in a different place, the marriage ceremony can be any place stated in the SWORN STATEMENT made by the contracting parties. The parties must submit a WRITTEN REQUEST and a SWORN STATEMENT indicating the desired place for the marriage ceremony. Failure to comply with the required venue of the marriage ceremony doesnt invalidate the marriage, it is only an irregularity in the formal requisite FAMILY CODE: MARRIAGE ART. 1: both STATUS and a CONTRACT Status: is A PERSONAL for the CONTRACTING PARTIES, only the contracting parties are obliged to exercise and to perform Contract: Marriage is SPECIAL CONTRACT, also express with public interest, the state has interest on the contract, regulated by the state through family code essential reqs: ART. 2 - Legal capacity of the contracting parties - Legal capacity definition: 3 aspects 1. Legal capacity as AGE: ONLY 18 years and above have the capacity to contract marriage 2. SEX: MALE and a FEMALE may contact marriage (same sex not allowed) How to determine if a male is female: 1. Silverio v. republic: gender of the person should be determine at time of

his birth. It is immutable despite the changes subsequent to birth 2. Cagandahan (INTERSEX): incase of intersex person, the sex should be determine on the basis of the PERSONS CHOICE. Natural Choice excercised upon reaching the age of majority. 3. ABSENCE OF LEGAL IMPEDIMENTS: imposed by law by reason of relationship. Example: INCESTOUS RELATIONSHIP (ART. 37) and therefore is VOID. Ex 2: imposed by PUBLIC POLICY: marriage under ART. 38, if relationship falls under ART. 38, VOID. Ex 3: STATE OF BEING UNMARRIED TO ANOTHER: BIGAMOUS and therefore VOID

beyond jurisdiction: ONLY AN IRREGULARITY but judge is subject to liability (beso and domagtoy cases) - Priest, rabbi, imam or minister of any religious org that is duly registered by CIVIL REGISTRAR GENERAL and within the scope of the written authority by its religious sect. ONE OF THE CONTRACTING PARTIES IS A MEMBER OF THE RELIGIOUS ORG. (ALSO APPLIES IN ARTICULO MORTIS) - Ship captain, chief pilot: ONLY IN ARTICULO MORTIS - while it is in transit, including its stop over - Chief pilot can only solemnize: APPLIES ONLY BETWEEN CREW MEMBERS OR PASSENGERS otherwise, chief pilot has no authority Authority to solemnize in articulo mortis: APPLIES INCLUDING STOP OVER Otherwise: IRREGULARITY Military Commander: ARTICULO MORTIS, within the zone of military activity and marriage is between members of the army, and civilians within the military zone (inside) and if there is a chaplain assigned but is absent Municipal Mayor and Vice mayor (ONLY AS ACTING MAYOR and within his municipality): LG CODE CONSUL, VICE CONSUL, CONSUL GENERAL: ONLY IF MARRIAGE TAKES PLACE ABROAD, AND MARRIAGE IS BETWEEN FILIPINOS. CAN SOLEMINIZE, AND CAN PROCESS (ACT AS LOCAL CIVIL REGISTRY) Filipino w/ alien: CANNOT SOLEMNIZE. ONLY IF BOTH ARE FILIPINOS. Pursuant to art. 35 par. 2: even if they act in good faith that solemnizing officer had authority to do so, MARRIAGE IS VALID

- consent FREELY GIVEN IN THE PRESENCE OF SOLEMNIZING OFFICER - if there is absence of consent: Marriage is VOID. Distinguish between ABSENCE of consent (void) and DEFECT consent or VITIATED consent (voidable) FORMAL REQS: 1. authority of solemnizing officer who are authorized: - Incumbent judges WITHIN THE RESPECTIVE TERRITORIAL JURISDICTION (judges of the lower courts are limited only to their jurisdiction) exception: Courts who has nationwide jurisdiction (SC, CA, SANDIGAN BAYAN, COURT OF TAX APPEALS) - members of the judiciary (ALSO APPLIES IN ARTICULO MORTIS) Lower courts: jurisdiction defined by law When marriage is solemnized by judge with no jurisdiction: IRREGULARITY SC: Marriage soleminized by judge

RESTRICTION TO ARTICULO MORTIS: ship captain, chief pilot, military commander 2. VALID marriage license Basic procedure in application: Who may issue: Local Civil Registrar (AT THE PLACE WHERE 1 OF THE CONTRACTING PARTIES IS A RESIDENT) or CONSUL GENERAL, VICE CONSUL if both parties are from cebu, they cannot acquire marriage license in bohol Violation of this requirement will not render the marriage VOID. Marriage REMAINS valid but the local civil registry is subject to liabilities. Requirements to apply marriage license: 1. BIRTH CERTIFICATE of the applicant, original or CERTIFIED TRUE COPY, in absence, BAPTISMAL CERTIFICATE, in absence of both, AFFIDAVIT by contracting parties with two witnesses (nearest kin preferred) and signifying no legal impediments 2. 18 to 20: requires CONSENT from the parents (if no consent, VOIDABLE) 21 between 25: PARENTAL ADVICE: if cannot obtain parental advice, the local civil registrar WILL SUSPEND THE ISSUANCE OF MARRIAGE LICENSE OF 3 MONTHS, BUT STILL ISSUES MARRIAGE LICENSE. IF issued earlier before 3 month period: Subject local civil registrar to liabilities On top of PARENTAL ADVICE they are also required to submit MARRIAGE COUNSELING. Without marriage counseling, suspend issuance of 3 months. If issued earlier: local civil registrar subject to liabilities

Incase if one of the applicants are previously married: DEATH CERTIFICATE of the previous marriage or JUDICIAL DECLARATION OF NULLITY. If foreign alien applicant: SUBMIT CERTIFICATE LEGAL CAPACITY from their own CONSULAR OFFICE STATIONED IN THE PHILIPPINES IN RELATION ART. 21 OF FC If required document cannot be submitted: LOCAL CIVIL REGISTRAR MAY REFUSE TO ISSUE THE MARRIAGE LICENSE (DEATH CERTIFICATE, JUDICIAL DECLARATION, LEGAL CAPACITY OF ALIEN) After submission of documents, Local civil registrar shall make a publication. Local civil registrar: MINISTERIAL, so long as the documents are submitted, the LCR shall issue the marriage license EVEN IF THEY HAVE LEGAL IMPEDIMENTS. LCR will just write down the legal impediments but is obligated to issue the license. The only time to refuse issuance of marriage license: COURT ORDER, filed by the LCR himself or the third party. In the absence of the court order, the LCR will issue the marriage license. LCR will file a case in court for injunction to prevent from issuing a marriage license in knowledge of legal impediments Validity of marriage license: 120 days, automatically expires. LCR, Cebu city issues marriage license: MARRIAGE LICENSE IS VALID ALL OVER THE PHILIPPINES MARRIAGE SOLEMINIZED WITHOUT MARRIAGE LICENSE: 1. ARTICULO MORTIS: one of the contracting parties at the point of death 2. RESIDING IN A REMOTE PLACE 3. MARRIAGE BETWEEN MUSLIMS or

OTHER ETHNIC GROUPS 4. ART.34 RATIFICATION OF MARITAL COHABITATION - if contracting parties have cohabited for a period of 5 years. Reason: Spare the contracting parties from humilation from the public SUBJECT TO CONDITIONS Conditions: Ninal v. dayot: Cohabitation for 5 years was not free from legal impediments, former wife was still alive, the husband started to cohabit with the 2nd wife. Previous marriage was still existing - SOLEMINIZED BEFORE EFFECTIVITY OF FAMILY CODE. CIVIL CODE 76 was applied. if marriage is solemnized before effectivity of the family code, ENTIRE 5 YEAR PERIOD SHOULD BE EXCLUSIVITY SC: cohabitation should be EXCLUSIVITY. The marriage lack the essential reqs of marriage, ratification of marital cohabitation did not apply Manzano: SC reqs of art. 34: (1) absence of legal impediments must be absent at the time of marriage. NOT REQUIRED THAT WHOLE 5 YEARS SHOULD BE FREE FROM LEGAL IMPEDIMENTS. - If marriage is solemnized DURING THE EFFECTIVITY OF THE FAMILY CODE, MANZANO ruling applies

take each other as husband and wife in writing by signing the marriage contract. However: If there is marriage contract signed, but there was no witnesses or no solemnizing officer, THERE IS NO CEREMONY and therefore void. (Morigo) Absence of marriage ceremony; there is absence of formal requisite and therefore is void. The law provides a venue where marriage ceremony may be held: MARRIAGE SHOULD BE SOLEMINIZED INSIDE A JUDGE CHAMBER (office) OR IN OPEN COURT, OR IN A TEMPLE OR CHAPEL NOT ELSEWHERE subject to exception: EXCEPTION: ARTICULO MORTIS, when parties request in writing, marriage can be soleminized in expressed in their AFFIDAVIT (indicates specific place) Rule on venue: if marriage is solemnized other than indicated, IT IS AN IRREGULARITY but the judge is subject to administrative liability VOID MARRIAGES: 1. 2. 3. 4. 5. 6. 7. 8. ART ART ART ART ART ART ART ART 35 36 37 38 40 41 44 53 IN RELATION TO 52

VALID CEREMONY: - Personal declaration of the spouses in the presence of the soleminizing officer that they take each other as husband and wife with 2 witness of legal age - ABSENCE of personal or ORAL DECLARATION: "I DO" Does not render the marriage void. It is only an IRREGULARITY. It is enough that they

ABSENCE of any essential or formal requisites: VOID (ART. 35) Art. 35: Marriages that are void because absence of essential or formal requisites of marriage: 1) contacting parties are below 18 even if there is the consent of the parents (lack of legal capacity) (absence in essential requisite) 2) Marriage solemnized without authority of the solemnizing officer EXCEPT if either or both the contracting parties believed in good

faith or honestly believed that the solemnizing officer has the legal authority (absence in formal requisite) 3) marriage in the absence of a marriage license (absence of formal requisite) 4) Bigamous, polygamous marriage not falling under art 41 (Lack of legal capacity, existence of legal impediments) 5) Mistake of identity on the other party(VOID because ABSENCE OF CONSENT) 6) Failure to comply art. 52 in relation to art. 53, when one of the contracting parties failed to comply the requirement of RECORDING OF JUDGMENT DELCARING VOID, RECORDING OF THE LIQUIDATION OF PROPERTIES, RECORDING OF DELIVERY OF THE PRESUMTIVE LEGITIMES (52) if non-compliance: VOID (absence of legal capacity) Defect in the ESSENTIAL REQUISITE: VOIDABLE (VOIDABLE MARRIAGE IN ART.45) Irregularity of the FORMAL REQUISITE: DOES NOT AFFECT MARRIAGE but subject the parties for liabilities - Marriage License issued by LCR where non of the contracting parties, resides (MARRIAGE IS VALID BUT LCR be held liable) - Marriage license issued earlier than the 3 month suspension period (no parental advice or no marriage counseling was submitted) - Marriage soleminized by a member of judiciary beyond its jurisdiction: IRREGULARITY - Marriage celebrated other than the venue indicated by law: IRREGULARITY - Marriage solemnized where witnesses are below 18 years old OR NO WITNESSES: IRREGULARITY ART. 26 par. 1: PHILIPPINE CONFLICT ON LAWS RULE BECAUSE IT INVOLVES FOREIGN ELEMENTS AND BECAUSE IT

CONTEMPLATES MARRIAGES SOLEMNIZED OUTSIDE THE PHILIPPINES 1. marriage solemnized abroad between filipinos General Rule: all marriages if valid in the country where the marriage was solemnized, valid here in the Philippines by virtue of lex loci celebracionis of art. 17 of the Civil code Exception: 1.) ART 35 par. 1- either or both the contracting parties are below 18 2.) ART 35 par. 4- bigamous or polygamous marriages not contemplated in art. 41 3.) ART 35 par. 5- one of the contracting parties mistake of identity 4.) ART 35 par. 6- violation of art. 52 in relation to art. 53 5.) ART 36- marriage is void due to psychological incapacity of either or both parties 6.) ART37 incestuous marriages: a) marriages between decendants and ascendants whether legitimate or illegitimate b) between brothers and sisters whether full or half blood) 7. ) ART 38- marriages considered void by reason of public policy: a.) marriage between collateral blood relatives whether legitimate or legitimate up to 4th civil degree or marriages up to first cousins b) between step parents and step children c) between parents-in-law and children- in-law d)between the adopting parent and adopted child e) between the surviving spouse of the adopting parents and the adopted child f) between surviving spouse of the adopted child and the adopter g) between an adopted child and a legitimate child of the adopter h. between two adopted children of the same adopter

i) between parties where one, with the intention to marry the other killed that other persons spouse or his or her own spouse : these are exemption in the general rule that if valid there, it is also valid here; If marriage falls under these articles, MARRIAGE IS VOID AS SO FAR AS PHILIPPINES IS CONCERN. 2. marriages solemnized abroad between foreigners General Rule: if valid where the marriage is celebrated, valid also here in the Philippines by virtue of lex loci celebracionis Question: Does the exemptions apply to foreigners whose marriage was celebrated abroad? Ans: No. Paras, Agpalo and Symepo-diy are one in saying that the exemptions under art 26 applies only to filipinos whose marriages are celebrated abroad and does not apply to foreigners Exceptions: 1.) Art. 37- universally incestuous marriage 2.) highly immoral (bigamous or polygamous) - Sta. Maria says that par 1 of art 35 applies only to Filipinos and he is silent on whether the other exceptions apply to foreigners but other authors are unanimous in saying that it does apply 3. abroad between filipinos and foreigners or mixed marriage General Rule: if valid where the marriage is celebrated, valid also here in the Philippines by virtue of lex loci celebracionis Exception: 1.) ART 35 par. 1- either or both the contracting parties are below 18 2.) ART 35 par. 4- bigamous or

polygamous marriages not contemplated in art. 41 3.) ART 35 par. 5- one of the contracting parties mistake of identity 4.) ART 35 par. 6- violation of art. 52 in relation to art. 53 5.) ART 36- marriage is void due to psychological incapacity of either or both parties 6.) ART37 incestuous marriages: a) marriages between decendants and ascendants whether legitimate or illegitimate b) between brothers and sisters whether full or half blood) 7. ) ART 38- marriages considered void by reason of public policy: a.) marriage between collateral blood relatives whether legitimate or legitimate up to 4th civil degree or marriages up to first cousins b) between step parents and step children c) between parents-in-law and children- in-law d)between the adopting parent and adopted child e) between the surviving spouse of the adopting parents and the adopted child f) between surviving spouse of the adopted child and the adopter g) between an adopted child and a legitimate child of the adopter h. between two adopted children of the same adopter i) between parties where one, with the intention to marry the other killed that other persons spouse or his or her own spouse : these are exemption in the general rule that if valid there, it is also valid here and APPLIES ONLY TO THE FILIPINO SPOUSE; this will result into a HYBRID MARRIAGE because valid in so far as the foreign spouse is concerned and void in so far as the filipino spouse is concerned and cant be allowed because it is absurd Ans: Majority of the writers said that we should consider the marriage valid on the following

reasons: 1. our policy is to uphold the validity of marriage 2. to accord justice to the children born out of the hybrid marriage MARRIAGES BETWEEN FOREIGNERS SOLEMNIZED HERE IN THE PHILIPPINES: NOT GOVERNED BY ART 26 because art 26 only expressly contemplates marriages outside the Philippines- THE RULE THAT WILL GOVERN WILL BE OUR INTERNAL LAWS laid down in the family code but in so far as STATUS and CAPACITY to contract marriage in pursuant to art 21 of the family code and in relation to art 15 of the civil code, the national law of the contracting parties governs - EX: filipino 18 and foreigner17 but the place celebrated the age of majority is 16. - expressly provides that instead of submitting birth certificate, the foreigner is required to submit certificate of legal capacity issued by their diplomatic or consular official (ART. 21) ART. 26 par. 2: marriages between a foreigner and a filipino but subsequently obtains a decree of divorce abroad is the only law here in the philippines that recognizes divorce obtained abroad; APPLIES ONLY: 1. IF THE FOREIGN SPOUSE OBTAIN THE DIVORCE DECREE, DOESNT APPLY TO FILIPINOS -

not at the time the marriage was celebrated but at the time the divorce decree was obtained) If the foreign spouse obtained a divorce decree this however does not automatically allow the filipino spouse to remarry (recio vs. recio case: a) it is still required that the valid existing divorce decree must exist as a fact, b) the divorce decree must be valid in the country where it is obtained, c) and the law recognizes that the filipino spouse can remarry in accordance with their law- these facts must first be established before the filipino spouse can remarry) Procedure so that the filipino should follow (Republic vs Obrecido: the remedy so that the filipino spouse can remarry is TO file AN ACTION FOR DECLARATORY RELIEF IN THE RTC TO DECLARE HIS OR HER CAPACITY TO REMARRY, and the filipino spouse should prove as a fact the existence of the following: a) existence of a divorce decree obtained abroad, b) law of the place where the divorce decree was obtained, c) determine that the divorce decree capacitates the filipino spouse to remarry)

Question: How do you prove the existence of a valid divorce decree? Ans: (Dayot vs CA Case)- the existence of a valid divorce decree can be proved by presenting a copy of the divorce decree authenticated by the issuing court and that is sufficient to prove the existence of a divorce decree - Action for Declaratory relief applies ONLY TO FILIPINOS and not to foreigners who wishes to remarry here in the Philippines because the foreign spouse is only required to submit a copy of the

2. APPLIES TO MARRIAGES BETWEEN NATURALIZED FOREIGNER AND THE FILIPINO AND THE CITIZENSHIP IS DETERMINED AT THE TIME THE DIVORCE DECREE IS OBTAINED (Republic vs Obrecido Case: a filipina who was granted to obtain a divorce decree who has been naturalized. SC rule that the citizenship is determined

divorce decree obtained abroad in the LCR in applying for a marriage license - the filipino spouse should prove the divorce between his/her marriage between the foreign spouse in relation to Obrecido and Recio cases ( transfer this after art 35 for void marriages) Art 36: marriages is considered void by reason of psychological incapacity TO PERFORM ESSENTIAL MARITAL OBLIGATIONS (only on obligations of love, care, parenthood, obligation on support) on either or both spouses at the time of the celebration of marriage Requisites/Characteristics of Psychological Incapacity: 1. Juridical antecedence- inability to perform marital obligations should exist at the time of the marriage although it manifests after the celebration of the marriage (although it is not mandatory but it is advised to hire a psychologist for this matter to fully convince the court to comply with this requisite because only the experts can sufficiently prove this element) 2. Gravity- the illness must be serious enough as would make the contracting parties unable to comply with the marital obligations; must be serious(needs a finding of an expert to prove the same) 3. Incurable- doesnt contemplate any cure or remedy but BEYOND THE MEANS OF THE PARTY CONCERNED (requirement of incurability is RELATIVE, applies only BETWEEN THE CONTRACTING PARTIES; DOES NOT MATTER IF THE GUILTY PARTYS INCAPACITY DOES NOT EXIST AS FOR FAR AS OTHER PARTNERS ARE CONCERNED)

- Successful men and women does not necessarily mean that they cant be subject to psychological incapacity TE vs TE case: both parties suffer disorders are considered psychological incapacitated when in fact before, the ground for mamas boy is not considered ground for psychological incapacity Art 37: Incestuous marriages- only marriages considered as such (exclusive): a) marriages between decendants and ascendants whether legitimate or illegitimate b) between brothers and sisters whether full or half blood) Art 38: Void Marriages by reason of public policy and relationship: a.) marriage between collateral blood relatives whether legitimate or legitimate up to 4th civil degree or marriages up to first cousins b) between step parents and step children c) between parents-in-law and children- in-law (relationship by affinity)- exist only at the lifetime of the spouse Ex. A is the parent-in-law of B who is the spouse of C, if B marries A the marriage is void. But if C dies, the relationship is extinguished thus the marriage of B and A is valid only if there is no legal impediments present or the relationship is totally extinguished. d)between the adopting parent and adopted child e) between the surviving spouse of the adopting parents and the adopted child f) between surviving spouse of the adopted child and the adopter g) between an adopted child and a legitimate child of the adopter h. between two adopted children of the same adopter i) between parties where one, with the intention to marry the other killed that other persons spouse or his

or her own spouse - the relationship is only between the adopted child and the adopter (the child is considered a legitimate child of the adopter possessing all the rights and privileges enjoyed by a legitimate child) Ex: A marriage between the adopter and the child of the adopted child is valid because it is not enumerated under art. 38 Art 39: The action for declaration of absolute nullity of marriage or marriages that are VOID AB INITIO FROM THE VERY BEGINNING shall NOT PRESCRIBE (art 35,36,37,38 and 53) - even though before the effectivity of the FC, it still does not prescribe - a void status of a marriage can be attacked or assailed even UP TO THE DEATH of the contracting parties because it is imprescriptible - unlike actions for annulment or the voidable marriages of marriages under art 45, there is a specific prescriptive period depending on the ground - action for declaration of nullity of marriage shall be filed in the FAMILY COURTS OR RTCs Q: Where to file the action for nullity of marriage? Ans: Can be filled with the RTC designated as Family Court where the petitioner or respondent resides of the election of the petitioner. If the petitioner is from Cebu, the petition is filed in Cebu but if the respondent resides in Jolo, the petition for nullity can be file at the option of the petitioner whether he/she will file in the RTC designated as FC in Cebu or Jolo. If the respondent is a foreign or a non-resident of the philippines, the action will be filed at the option of the petitioner where the respondent can be found.

Requirement of the residence as the basis for the venue must be AT LEAST 6 MONTHS RESIDENCE PRIOR TO THE FILING OF THE PETITION. The petitioner will obtain BARANGAY CERTIFICATE FROM THE BARANGAY CAPTAIN OR THE OFFICE OF THE BARANGAY CAPATIN to determine that he/she is a residence of that place for a specific period (this serves as the evidence) - if this requirement is not complied, the action may be dismissed - as soon as the petition is filed in the court, the clerk of court will now issue A SUMMON AND ISSUE UPON THE RESPONDENT. The respondent will be given 15 days to file for his answer to the petition, if the respondent is a non-resident, instead of personally appear before the court, it is published in a newspaper twice a week for 2 consecutive weeks, after the completion of the publication requirement, the non-resident respondent shall have 30 days after the completion of publication within which to file his answer for the complaint. - if after the lapse of the 15-day and 30-day period the respondent failed to file his answer or the his answer does not tender the issue, it is mandatory for the court to assign the fiscal or prosecuting attorney to conduct an investigation whether there is collusion between the parties. The collusion report of the prosecuting attorney is mandatory (noncompliance with this requirement will render the decision void) - if the prosecuting atty does not find any collusion after the conducting the required investigation, the court shall order the Office of the Solicitor General or the Public Prosecutor to participate in the proceedings in the case to prevent the parties from fabricating or suppressing evidence for a favorable judgment (absence of

the prosecutor in the course of the proceeding will be rendered void EXCEPT THE OTHER PARTY CONTEST THE PETITION AND THE ADVERSE PARTY ACTIVELY PARTICIPATING(Tuason vs Tuason Case: THERE IS NO-HOLDS BARRED PROCEEDINGS) ONE-MAN SHOW- the other party established a DECLARATION OF DEFAULT ( does not apply to cases involving cases or action of nullity, annulment and legal separation) - if all matters or the allegations are admitted in the proceedings, the court will render judgment based on the proceedings and will not conduct trial but it necessary to prove such allegations or the court will dismiss the action filed (does not apply the action for nullity of marriage because it is mandatory to conduct trial and prove the grounds for the allegation) Q: Who may file an action for nullity of marriage? Ans: Actions for declaration of nullity of marriage may be file ONLY BY THE SPOUSES This rule does not apply to the following cases/ exception: 1. Marriages solemnized before the effectivity of the FC- any interested party may file (one who benefits or is injured in the result of the case) 2. Marriages after the effectivity of FC but the action is filed before MARCH 15, 2003 or the effectivity of the new rule, any intersted party may file (Juan Carlos vs Sandoval Case: declaration of nullity of the deceased husband for the ownership of property; any interested party has the LEGAL PERSONALITY TO file an action (heir, brother), the other heirs

can file a case questioning the statues or validity of the marriage) De Castro vs De Castro Case: action for support; they executed a falsified marriage cohabitation, COLLATERAL ATTACK, not the validity of marriage but other action, action for support- VALIDITY OF MARRIAGE MAY BE COLLATERALLY ATTACKED) - Status of a voidable marriage CANT BE COLLATERALLY ATTACKED only action for nullity of marriage not action for annulment Other proceedings where the nullity of a void marriage may be assailed other than an action intended for the purpose or COLLATERAL ATTACK: 1. In an action for heirship 2. Action for claim of death benefits, may be assailed by either party 3. Case of settlement of the estate (Sandoval Case) Art 40: Absolute nullity of a void marriage may be invoked for purposes of remarriage on the basis solely on the final judgement of the court - to contract a subsequent marriage, a JUDICIAL DECLARATION OF NULLITY of the previous marriage is necessary or the marriage will be declared void - before the effectivity of the FC, there has been a constant change based on the different rulings of the court - after the effectivity of the FC, for purposes of remarriage, there is A NEED FOR JUDICIAL DECLARATION OF NULLITY of the previous marriage to contract a subsequent valid marriage Apiag vs Cantejo Case: rule is that the need for judicial declaration is

determined through the effectivity of the Family Code- before the effectivity, there is no need for judicial declaration - the decision of the Supreme Court En Banc will control over rulings decided by the Court not En Banc according to Sta. Maria Issues on Bigamy: Q: Where there be bigamy if the person contracts a subsequent marriage without the first marriage being declared void by competent court? Ans: Art 349 of RPC penalizes the crime of bigamy. Requisites: 1. Must be a valid subsisting marriage or first marriage 2. Must have a subsequent valid marriage - both marriages should be valid for bigamy to be committed, logically no crime of bigamy can be committed Bigamy contemplates 2 Possible scenarios: 1) Where the 1st marriage is void but there is the absence of judicial declaration- the 1st marriage is void, for purposes of bigamy in relation to art 40 Sta. Maria says that there is a distinction between marriages contemplated under art 40 and art 41, both involve a subsequent marriage, differ in the sense that the status of the previous marriages are different - In art 40 according to Sta Maria, previous marriage is a void marriage, even if the marriage is void the party to that void marriage contracts a subsequent marriage w/o obtaining first a judicial declaration of the 1st marriage is void, the effect is that the subsequent marriage is void because it fails to comply with art 40, there is a NEED TO OBTAIN A JUDICIAL DECLARATION, to make the subsequent marriage valid there has to be a judicial declaration stating that the previous marriage is void

- art 41 provides that contracting parties who contracts a subsequent marriage during THE SUBSISTENCE OF A FIRST MARRIAGE OR THERE IS A VALID MARRIAGE, the subsequent marriage must be void - what distinguishes art 40 and 41 is that the fact that art 41 contemplates that the previous marriage is valid thus the subsequent marriage is void and bigamous since there is still a subsisting marriage and there is NO JUDICIAL DECLARATION OF THE NULLITY OF THE PREVIOUS MARRIAGE, Sta. Maria says that if the previous marriage is void there can be no bigamy to speak of since in the 1st requisite in Art 349 of RPC states that there must be a valid subsisting marriage, and art 40 contemplates that the previous marriage is void - Sta. Maria says that art 40 only contemplates on purposes of remarriage not bigamy, neither it mentions about bigamy. (but unfortunately Sta. Maria does not form part of the Supreme Court so his explanation is not the controlling factor of cases) Carino vs Carino case: involves death benefits of the deceased husband where the 1st first claims that she is the lawful wife; THE PARTY CONTRACTED A SUBSEQUENT MARRIAGE W/O OBTAINING A JUDICIAL DECLARATION OF THE FIRST MARRIAGE although the first marriage was void by reason of psychological incapacity, SC RULED THAT IN THE ABSENCE OF A JUDICIAL DECLARATION OF THE NULLITY OF THE PREVIOUS MARRIAGE IT IS PRESUMED THAT THE MARRIAGE IS STILL VALID Mercado vs Tan Case: involves a doctor who married twice, after the discovery of the 2nd wife about it she filed a case of bigamy; after many the days the husband filed a case for nullity of the previous marriage by reason psychological incapacity which was granted by the court; SC RULED

THAT THE DECLARATION OF NULLITY OF THE PREVIOUS MARRIAGE HAS NO BEARING ON THE CRIME OF BIGAMY BECAUSE THE CRIME OF BIGAMY WAS ALREADY CONSUMATED BEFORE THE DECLARATION OF NULLITY OF THE PREVIOUS MARRIAGE; THERE IS A NEED FOR A COURT DECLARATION DECLARING THE MARRIAGE VOID, IN THE ABSENCE OF THIS COURT DECLARATION THE CONTRACTING PARTY WILL BE LIABLE FOR THE CRIME OF BIGAMY Abunado vs Abunado Case (most recent decided in 2004): the wife left for Japan and when she went back to the country she discovered that his husband cohabited with another woman and contracted a subsequent marriage so a bigamy case was filed, but before the bigamy case was filed the husband file an action to declare the 1st marriage nullity w/c was granted by the court; SC RULED THAT THERE IS NO PREJUDICIAL QUESTION BECAUSE THERE IS NO BEARING BECAUSE THERE IS NO JUDICIAL DECLARATION OF NULLITY OF THE 1ST MARRIAGE WHEN HE CONTRACTED THE SUBSEQUENT MARRIAGE; SC RULED THAT IN MARRIAGES EVEN IF VOID OR VOIDABLE IS DEEMED TO BE VALID IN THE ABSENCE OF JUDICIAL DECLARATION DECLARING THE MARRIAGE VOID Lucio morigo vs PP Case (later than mercado case): involves a case between a married couple the wife went abroad and obtained a divorce decree, and after knowing this the husband contracted a subsequent marriage, the 1st the filed an action for bigamy; there was no marriage ceremony in the 1st marriage (there is lack of the formal requisite); SC REFERRED TO THE MERCADO CASE AND RULED THAT FOR BIGAMY TO BE COMMITTED THERE HAS TO BE A VALID PREVIOUS MARRIAGE

AND IN THIS CASE THERE IS NO VALID MARRIAGE BECAUSE OF THE LACK OF FORMAL REQUISITE WHICH IS THE MARRIAGE CEREMONY, HE IS THEN ACQUITTED OF BIGAMY ( in the mercado case the parties complied with the essential and formal requisites of marriage while in this case the there is lack of formal requisite which the marriage ceremony); IN THE ABSENCE OF AN ESSENTIAL AND FORMAL REQUISITE THERE CAN BE NO MARRIAGE TO SPEAK OF OR THE MARRIAGE IS VOID THEREFORE NO BIGAMY 2) Where the first marriage is valid but subsequent marriage is void; there is no bigamy because one of the requisites in Art 349 of the RPC states that there must be a valid subsequent marriage that has complied with all the essential and formal requisites but only in the fact that it is bigamous; there can be no bigamy if there is no valid subsequent marriage to speak of because on noncompliance with the essential and formal requisites Tenebro vs CA case: the person married thrice and the 2nd wife filed for a case of bigamy and during the pendency of the case he filed an action for nullity of the 1st marriage on the ground of psychological incapacity which was eventually granted, SC RULED THAT 1.) THE EVENTUAL DECLARATION OF MARRIAGE HAS NO BEARING AT ALL IN SO FAR AS THE CONVICTION OF BIGAMY BECAUSE THE ACTION OF NULLITY ONLY CAME UP AFTER THE CRIME OF BIGAMY HAS BEEN CONSUMATED, 2.) WHAT IS ONLY REQUIRED FOR BIGAMY IS THAT THE ACCUSED CONTRACTED A SUBSEQUENT MARRIAGE WHILE THE

PREVIOUS MARRIAGE IS SUBSISTING; PSYCHOLOGICAL INCAPACITY IS A GROUND FOR NULLITY OF MARRIAGE AND IS NOT AN ESSENTIAL OR A FORMAL REQUISITE OF MARRIAGE; SC RULED THAT THE DECLARATION OF NULLITY OF THE PREVIOUS MARRIAGE DOES NOT RETROACT BECAUSE THE LAW RECOGNIZES THE VALID EFFECTS OF THE PREVIOUS MARRIAGE PRIOR TO IT DECLARED VOID FOR PURPOSE OF LIABILITY OF BIGAMY, IT IS STILL BIGAMOUS FROM THE FACT THAT THERE WAS A VALID SUBSISTING MARRIAGE; EVEN IF THE SUBSEQUENT MARRIAGE IS VOID THERE CAN ALSO BE BIGAMY Dissenting opinion of Justice Vitug: the rule that bigamy can still be committed even if the subsequent marriage is void APPLIES ONLY IF THE SUBSEQUENT MARRIAGE IS VOID BY REASON OF PSYCHOLOGICAL INCAPACITY BECAUSE PSYCHOLOGICAL INCAPACITY IS A GROUND FOR NULLITY OF MARRIAGE AND DOES NOT PERTAIN TO ESSENTIAL AND FORMAL REQUISITES; IF THERE IS OTHER GROUND WHICH PERTAINS TO FORMAL AND ESSENTIAL REQUISITES THERE CAN BE NO BIGAMY BECAUSE UNDER art 359, Bigamy can only be committed if the subsequent marriage has complied with all the essential and formal requisites of a valid marriage Art 41: Sta. Maria said that unlike art 40, the marriage contemplated here is there is a valid subsisting marriage which will results to a crime of bigamy if a subsequent marriage will be

contracted because of the presence of a subsisting or previous marriage; - based on the jurisprudence of the cases of Carino, Mercado and Abunado (for our purposes apply these rulings!), he is proven wrong; SC suggested that regardless if it is void it is deemed to be PRESUMED VALID UNTIL JUDICIALLY DECLARED VOID BY A COMPETENT COURT; for purposes of bigamy there is no distinction between a void and voidable marriages because in both cases there is a need for judicial declaration that the previous marriage is void - for purposes of remarriage unlike art 40 for one party to contract a subsequent marriage, there is a need for judicial declaration declaring the previous marriage void, THAT IS NOT REQUIRED IN art 41 BECAUSE art 41 SIMPLY REQUIRES THAT A PARTY WHO SEEKS TO CONTRACT A SUBSEQUENT MARRIAGE MAY OR SHOULD OBTAIN A SUMMARY PROCEEDING OF THE PRESUMPTIVE DEATH OF THE FORMER SPOUSE; THIS ART DOES NOT REQUIRE JUDICIAL DECLARATION OF NULLITY OF THE PREVIOUS MARRIAGE - according to Sta. Maria there is no need of a judicial declaration of nullity of the previous marriage because what is contemplated here is that THERE IS A VALID PREVIOUS MARRAGE, a marriage is valid or voidable, does not contemplate in a void marriage - the purpose of obtaining a summary proceeding of the presumptive death of the former spouse is 1.) FOR THE VALIDITY OF THE SUBSEQUENT MARRIAGE and 2.) to AVOID PROSECUTION FOR BIGAMY

- after obtaining the judicial declaration of presumptive death, the spouse who contracts a subsequent marriage can contract a valid marriage and cant be prosecuted of bigamy - in filing a petition only a summary proceeding is required so that in order to obtain judicial declaration of presumptive death spouse should present CLEAR AND CONVINCING EVIDENCE that the previous spouse is absent for 4 years under ordinary circumstances or 2 years under extraordinary circumstances where there is danger of death of the disappearance spouse - it is important to present clear and convincing evidence that the spouse observed DUE DILIGENCE IN LOCATING THE ABSENT SPOUSE AND DESPITE THAT DILIGENT EFFORT THE SPOUSE CANT BE LOCATED; failure to file a clear and convincing evidence may result to the denial of court of this judicial declaration of presumptive death (this only a PRESUMPTION) - the mere physical appearance of the absent spouse renders the declaration of presumption of death without force or effect it is as if the previous is still subsisting or is restored - the properties of the previous marriage shall be liquidated as if the previous marriage was dissolved by the death of either or both spouses Question: What is the effect of the reappearance as far as the subsequent marriage is concerned? Ans: Mere physical appearance of the spouse who was declared presumptively dead does not terminate the subsequent marriage

the only act that automatically terminate the subsequent marriage is the RECORDING OF AFFIDAVIT OF REAPPEARANCE OF THE ABSENT SPOUSE FILED WITH THE LOCAL CIVIL REGISTRAR WHERE THE PARTIES OF THE SUBSEQUENT MARRIAGE IS RESIDING AUTOMATICALLY TERMINATES THE SUBSEQUENT MARRIAGE - mere reappearance of the absent spouse is NOT ENOUGH to TERMINATE THE SUBSEQUENT MARRIAGE - if NO AFFIDAVIT is filed the effect is that the previous marriage is restored and the subsequent marriage is still valid, therefore there are TWO VALID MARRIAGES - the affidavit of reappearance can be filed by the reappearing spouse or any other interested parties Ex. If the reappearing spouse resides in Cebu and the parties of the subsequent marriage resides in Jolo, the reappearing spouse or any interested party must file the affidavit of reappearance in the Local Civil Registrar in Jolo WITH NOTICE TO THE PARTIES OF THE SUBSEQUENT MARRIAGE - filing for this affidavit automatically terminates the subsequent marriage - there can be the act of concubinage or adultery done because the spouse may cohabit two spouse, but that spouse can invoke the defense of a valid 2 marriages - the decision of the court declaring presumption of death CANT BE , REVIEW, OVERTURN OR REVERSED BY OTHER QUASI-JUDICIAL BODIES as appellate court LIKE SOCIAL SECURITY SYSTEM (SSS vs Failon case: no affidavit of reappearance

was filed after reappearance, SSS cant review, overturn or reverse the decision of the court) Art 43: Effects of the filing of the affidavit of reappearance: 1. The children conceived or born during the subsequent marriage shall be legitimate because the marriage is valid 2. The property regime of the spouses during the subsistence of the subsequent marriage SHALL BE LIBERATED but if either acted in BAD FAITH, his/her share in the NET (increase in value of property from the solemnization of the marriage up to the time of the dissolution of the marriage) PROFITS SHALL BE FORFEITED IN FAVOR OF 1) COMMON CHILDREN, 2) IN THE ABSENCE OF THE COMMON CHILDREN, THE CHILDREN OF THE GUILTY SPOUSE, 3) INNOCENT SPOUSE - the law is silent as to properties acquired after the solemnization of the marriage only properties at the time of marriage because the value is difficult to compute 3. All donations by reason of marriage are void by operation of law- automatic by the mere fact of filing, either party need not do a positive act 4. The insurance policy of the subsequent marriage shall remain valid after filing of an affidavit of reappearance but if the beneficiary acted in bad faith the insurance policy may be revoked by the innocent spouse (at the option of the innocent spouse) 5. The innocent who contracted a subsequent marriage in bad faith is disqualified to inherit from the innocent spouse from both testamentary or intestate succession; even if there is no well execution of the innocent

spouse, this still applies on intestate succession, the guilty spouse cant inherit Effects if both parties in the subsequent marriage acted in bad faith (if only one acted in bad faith, the marriage is still valid): 1. The status of the subsequent marriage is void ab initio 2. Children conceived and born during the subsequent marriage are illegitimate 3. Donation by reason of marriage is valid but if the donee acted in bad faith, that donation in favor of the donee will be revoked by the donor (the donor may at Two ways a heir can inherit from the deceased: 1. Testate succession- where the deceased executed a will and testament 2. Intestate succession- where the deceased party did not execute any will and testament before death Art 44: If both parties acted in bad faith, NONE OF THEM CAN INHERIT FROM THE OTHER by INTESTATE SUCCESSION because marriage is void; intestate succession applies only if there is a relationship between the heir and the deceased; only legitimate heir can inherit - if testate succession may be revoked by operation of law Common Distinction between Void marriages and Voidable Marriages: 1. Void is void ab initio or void from the very beginning; voidable marriage is valid until annulled 2. Void marriage can be collaterally attack- assail the voidness of marriage not only an action intended for the

purpose but also other issues like the action for support; voidable marriage can only be attacked directly and cant be attacked collaterally, cant be annulled in any other proceeding, action for support cant be an action the action must only be annulment intended for that purpose 3. Action or defense of a void marriage does not prescribe or imprescriptible; voidable marriage prescribes as specified in art 45 4. In a void marriage only the spouses may file an action for nullity of marriage; in voidable marriages, action for nullity of marriage can be filed not only by the contracting party but also other interested party a. Lack of parental consentparents , guardian having legal charge of him or the contracting party b. If the spouse is insanethe sane spouse w/o knowledge of the insanity, relative, guardian having legal charge of him, parent or the insane spouse himself Art 45: Grounds for Voidable Marriages or Annulment (constitute defect in the essential and formal requisite): 1. Absence of parental consent when one or both are between the ages of 18-20 2. Insanity- is such condition in the mind that renders the spouse unable to understand the significance and meaning of marriage 3. Consent of either party was obtained by fraud 4. Consent of either party was obtained by force, intimidation or undue influence 5. Physically incapable of consumating the marriage or Impotency and such incapacity

continuous and is serious 6. Either party was afflicted by Sexually Transmissible Disease found to be serious and is incurable Art 46: Grounds that constitute Fraud in relation to par 3 of art 45: 1. Non-disclosure of a previous conviction BY FINAL JUDGMENT of the other party of a CRIME INVOLVING MORAL TURPITUDElike murder 2. Concealment by the wife at the time of marriage that she was pregnant by a another man 3. Concealment of Sexually Transmissible Disease REGARDLESS OF NATURE existing at the time of the marriage 4. Concealment of DRUG ADDICTION, HABITUAL ALCOHOLISM, or HOMOSEXUALITY OR LESBIANISM existing at the time of the marriage DOCTRINE OF TRIENNIAL COHABITATION: If the wife remains a virgin for at least 3 years from the time the spouse started cohabiting, the husband must show that he was not impotent during the said period and the burden will be upon him to overcome the presumption of impotence