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TITLE I. MARRIAGE
CHAPTER I

REQUISITES OF MARRIAGE
Legal Concept Article 1. 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. (52a)1 Art. 1 defines marriage as 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. The concept of marriage as a permanent union between a man and a woman is reflective of what God has intended for marriage when he established the union between Adam and Eve.2

1 The Family Code is not applicable to Filipino Muslims. Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines is the law applicable to the persons and family relations of the Filipino Muslims. P.D. 1083 is a special law and E.O. 209, as amended, is the general law. It does not, therefore, repeal P.D. 1083. 2 Therefore shall a man leave his father and his mother, and shall leave unto his wife: and they shall be one flesh. (Genesis 2:24) Have ye not read, that he which made them at the beginning made them male and female, and said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh? Wherefore they are no more twain, but one flesh. What therefore God hath joined together, let not man put asunder. (Jesus speaking, Matthew 19:46), King James Version of the Holy Bible.

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Marriage, a special contract Marriage differs from ordinary contracts. In an ordinary contract, the parties can stipulate any terms and conditions they may want if such are not contrary to law, public order, public policy, morals, or good customs. In marriage it is the law itself that fixes the rights and obligations of the parties. They cannot stipulate terms and conditions of marriage except as to the property regime through marriage settlements entered into prior to the marriage. In an ordinary contract, the sex is of no moment. But in marriage, persons of the same sex cannot validly marry. Marriage, a permanent union In ordinary contracts, the duration is not lifetime. Marriages are permanent, meaning, they are for lifetime. They last as long as the contracting parties are alive. They dissolve only when one or both die or by a judicial decree. Sir William Scott of the English Ecclesiastical Court, in a case where cruelty on the part of the husband was relied upon to secure a divorce for the wife, when the only ground for a divorce is adultery, eloquently states the reason for the indissolubility of marriage: For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individual, yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reason known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which it imposes . . . In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.3 Marriage, only between a man and a woman

3 Evans v. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466,467, quoted by the Supreme Court in Arroyo v. Vazquez de Arroyo, G.R. No. 7014, August 11, 1921.

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MARRIAGE Requisites of Marriage

Marriages can be entered only between a man and a woman. The trend going on in other countries or states where persons of the same sex can be married is not followed here in the Philippines. A marriage between persons of the same sex is null and void and is of no binding effect, giving no rise to any right and obligation. An American case gives the following reason: . . . our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children. This is true even though married couples are not required to become parents and even though not all couples who produce children are married. These, however, are exceptional situations. The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Further, it is apparent that no samesex marriage offers the possibility of the birth of children by their union. Thus, the refusal of the state to authorize same-sex marriage results from the impossibility of reproduction rather than on account of sex.4 Marriage governed only by law Only the law can govern marriages. Any agreement made between the contracting parties as to what should govern their marriage will not be legally binding except regarding the property regime that will govern their marriage. But this property regime should be made through a marriage settlement executed prior to their marriage. The law establishes the personal rights and obligations as well as property relations between the husband and wife. The Constitution gives the reason: Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.5 Marriage for conjugal and family life Under the Roman Catholic Church, marriage is primarily for procreation. The Family Code expressly states that marriage is
4 Singer v. Hara, 11 Wn. App. 247, 522 P 2d 1187, cited by Sta. Maria, Melencio, Jr., S., Persons and Family Relations Law, 3rd Ed., 1999, p. 110. 5 Sec. 2, Art. XV, Constitution.

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not only for procreation but also for companionship, that is, living together as man and woman without begetting any child. That is why a man and a woman can get married even if they are both past the age of begetting a child. Marriage, an inviolable social institution Article 1 of the Family Code is the legislative act that puts in effect the constitutional provision that Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. It was in Goitia v. Campos Rueda6 where the Supreme Court first expressed the concept of marriage as an inviolable social institution in which the State has an interest and a vital stake: . . . (marriage) is something more than a mere contract. It is a new relation, the rights, duties, and obligations of which rest not upon the agreement of the parties but upon the general law which defines and prescribes those rights, duties, and obligations. Marriage is an institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties. Because marriage is an inviolable social institution, two legal consequences arise, namely, the legal presumption in favor of marriage when a man and a woman are deporting themselves as husband and wife, and the duty of the State to protect marriage through the active participation of its lawyers and its social workers7 in actions for annulment, declaration of nullity of marriages, and legal separation, the prohibition on the courts to issue default orders, default judgments, judgments on the pleadings, and summary judg-

G.R. No. 11263, Nov. 2, 1916.

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ments in said actions, and the prohibition on lawyers and notaries public to draft and notarize documents which run contrary to or go against the legal provisions on marriage, with the corresponding legal sanctions on those who do. Legal presumption of marriage Under Sec. 5(bb) of Rule 131 of the former Rules of Court, before the revision of the rules on evidence on July 1, 1989, a man and a woman deporting themselves as husband and wife are disputably presumed to have entered into a lawful contract of marriage. The present Revised Rules of Court has reproduced the same provision in Sec. 3(aa): Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: ... (aa) That a man and a woman deporting themselves as husband and wife have entered into a lawful contract of marriage; . . . Article 220 of the Civil Code is the statutory guide on how the provisions on marriage are to be construed and interpreted: In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression. Although the Family Code did not reproduce the above article and, in fact, repeals Title VII of the Civil Code under which it is found,8 it is submitted, however, that it should be the guiding principle in the construction and interpretation of the provisions

7 Vd. Republic Act No. 8369, The Family Courts Act of 1997 and the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages and the Rule in Legal Separation. 8 Art. 254, Family Code: Titles III, IV, V, VI, VII, . . . of Book I of Republic

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on marriage. This is because the said article is not only consistent with the provisions of the Family Code but is also the embodiment of the spirit and intent of the provisions on marriage in the Family Code, and also of the jurisprudence and the Constitution. However, since the presumption is a disputable one it may be destroyed by proof to the contrary. The burden of proving the contrary rests upon the party claiming that there is no marriage between the man and the woman deporting themselves as husband and wife. Where the proof consists of lack of record of an act or fact in certain books of registry, such falls short of the proof required by law to overcome the legal presumption unless the law itself requires as essential evidence the record itself or the inscription of the fact or act to be proven.9 However, a certification by the local civil registrar that inspite of due search the marriage license cannot be found as it does not appear in the records is proof that no such marriage license has been issued. This is the ruling in Republic v. Court of Appeals and Castro10 and the Supreme Court explains this in this wise: The certification of due search and inability to find issued by the civil registrar of Pasig enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license. Unaccompanied by any circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of due search and inability to find sufficiently proved that his office did not issue marriage license no. 3196182 to the contracting parties. Neither is a mere denial of the marriage by the accused sufficient to overcome the presumption of marriage where he and the mother of the one he raped had represented themselves as husband and wife since 1954.11 Only cogent proof can overcome the legal presumption of marriage.12 The rationale is that the basis of human society throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new rela-

Act No. 386, otherwise known as the Civil Code of the Philippines, as amended . . . inconsistent herewith are hereby repealed. (n) 9 Sison, et al. v. Ambalada, G.R. No. 9943, March 18, 1915. 10 G.R. No. 103047, Sept. 2, 1994, 55 SCAD 157. 11 People v. Opea, G.R. No. L-34954, Feb. 20, 1981, en banc.

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tion, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is the common order of society and if the parties were not what they thus hold themselves out as being, they would be living in constant violation of decency and law.13 Illustrative cases of cogent proof overcoming the pre-sumption of marriage Two cases illustrate the cogent proof that overcame the legal presumption of marriage, namely, Fernandez v. Puatu14 and Sarmiento, et al. v. Court of Appeals, et al.15 In Fernandez v. Puatu, the Supreme Court, en banc, ruled that the claim of the petitioner that she was the surviving wife of the deceased Guillermo Puatu based on their deporting themselves as husband and wife from 1896, the year she allegedly married Guillermo, to 1917, the year she left him after discovering his infidelity, among others, had been overcome by the following: 1. The petitioners testimony cannot be believed because (a) Although she claimed to have had some correspondence with the deceased, she could not produce a single communication of the latter. Her only explanation that no tiene costumbre de guardar correspondencia, and that no puede exhibir correspondencia por no tenerla, is far from satisfactory, (b) According to her own testimony, ever since she returned to Spain in 1917, the deceased did not support her. What is more, she never asked or demanded any support from him. Although she would have the Supreme Court believed that once in a while, she received money from him, through an acquaintance coming from the Philippines, there is no documentary evidence whatsoever in support of this or any other part of her testimony. Thus, there is absolutely no evidence deserving full
Perido v. Perido, 63 SCRA 97. Adong v. Cheong Seng Gee, 43 Phil. 43, 56. 14 G.R. No. L-10071, Oct. 31, 1957. 15 G.R. No. 96740, March 25, 1999, 104 SCAD 875. 16 Pugeda v. Trias, et al., en banc, G.R. No. L-16925, March 31, 1962; Cf. Sison,
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faith and credence, bearing out said testimony, and (c) The records of the Spanish Consulate in Manila show that Rosario Fernandez was single when she entered the Philippines in 1902 En Matricula No. 121, folio 161, ao 1916, Doa ROSARIO CAMPOS FERNANDEZ natural de la Zubia, provincia de Granada, (Espaa), soltera, nacida en el ao 1871, llego a Filipinas en el ao 1902, y en su fecha de inscripcion en este Consulado, fue el 27 de Abril de 1916. (Exhibit 13-A, italics ours.) 2. The following documents established the status of the decedent as single: (a) The petition of Alfonso Puatu, with which the proceedings was commenced, states that the decedent was, at the time of his death, single, and Alfonso Puatu so testified at the hearing of said petition before the appellants intervention. (b) Original certificates of title nos. 12968, 15309 and 14758 of the office of the registry of deeds of Bulacan (Exhibits 10, 11, and 14) were issued in favor of Guillermo Puatu, single, of Baliuag, province of Bulacan, P.I. on August 18, September 17 and September 18, 1930, respectively. (c) The same status is given in a deed of lease executed by Guillermo Puatu in favor of Felipe Bernardino on November 13, 1946 (Exhibit 5). (d) In Exhibits X and Y (also marked as Exhibits 8 and 9) dated, November 12, 1944 and May 20, 1948, respectively, where he acknowledged the appellants as his natural children, he stated his status as single. (e) This status was confirmed by the Court of First Instance of Manila in its decision in Civil Case No. 25519 dated February 6,1954, approving said acknowledgment of appellants as the natural children of Guillermo Puatu, which decision is already final and executory. (f) The deceased in his last will and testament (Exhibit 7) which has already been allowed to probate described the appellants as his acknowledged natural children and named his heirs. The Supreme Court then made the following conclusion:

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In the light of these facts, and of the circumstances that, admittedly, the appellee and the decedent had, since 1917, lived separated from each other not only in different houses, but thousand of miles away from each other for thirty five (35) years, the least we can say is that the presumption of marriage, relied upon in the decision appealed from, has been sufficiently offset. Sarmiento, et al. v. Court of Appeals, et al. is another case where the Supreme Court declared that the legal presumption of lawful marriage had been rebutted. The facts are as follows: Francisco Arguelles legally married Petrona Reyes, out of which Simon Arguelles was born. The spouses acquired a parcel of land (Lot 926) with an area of 1,779 square meters. But before the title to the land could be issued, Petrona died. Then Francisco met and cohabited with Emilia Pineli. From their cohabitation, they begot Leogarda Arguelles. Francisco and Emilia never got married although they lived together as husband and wife. In 1941, Leogarda married Tiburcio Pangilinan from which two children ensued, Virginia and Apolonia. It was also in this year that the title over the land acquired during his marriage with Petrona was issued. In 1946, a year after the birth of Apolonia, Leogarda died. In 1949 Francisco died. In his death certificate the word none appears opposite the phrase surviving spouse, indicating that he died a widower. Before his death, he left the title of the land to his common-law wife, Emilia. In 1950 Emilia died. The land had remained unpartitioned and in the possession of Simon, the son of Francisco and Petrona. Thirty years after the death of Emilia, Virginia and Apolonia went to court seeking the partition of Lot 926 on the ground that as granddaughters of Francisco, they and Simon, were co-owners of one-half of the land. Their father, Tiburcio, told them that Emilia gave him the title of the property before she died. Against the claim of Virginia and Apolonia, Simon alleged that they were not the legal heirs of his father Francisco since their mother Leogarda was an illegitimate child of Francisco and Emilia. Francisco and Emilia cohabited without the benefit of marriage. Simon cited and brought the records of marriages of their municipality where the entries during the period when Francisco and Emilia started cohabiting do not reflect their names. Virginia and Apolonia countered that their mother Leogarda was a legitimate child since Francisco and Emilia had been living as husband and wife and so the presumption was

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they had entered into a lawful marriage even though no marriage contract could be submitted. The Supreme Court thumbed down the position of Virginia and Apolonia, ruling that Simon was able to rebut the legal presumption of marriage with the following facts: (1) The records of marriages of the town do not reflect the names of Francisco and Emilia; (2) The death certificate of Francisco contained the word none opposite to the phrase surviving spouse indicating he died a widower in 1949. His deceased wife was Petrona, mother of Simon; (3) TCT No. 28410 as well as the reconstituted TCT shows the status of Francisco as widower. Emilia would not have allowed Francisco to place the property in his name alone as widower if in fact they were legally married. Presumption of marriage; proving marriage Although the presumption is in favor of marriage, there are times when one has to prove the fact of marriage. Where another person claims to be the wife of a man who has been living as the husband of a woman in a certain locality, the former has to prove to the court that she is the true wife, not the latter. How does she do so? The rule is that a marriage can be proved by evidence of any kind. Testimony by one of the parties or witnesses to the marriage, or by the person who solemnized the same, is admissible. Public and open cohabitation as husband and wife after the alleged marriage, birth and baptismal certificates of children borne by the alleged spouses, and a statement of such marriage in subsequent documents, are competent evidence to prove the fact of marriage. The mere fact that no record of the marriage exists in the registry of marriage does not invalidate said marriage, as long as in the celebration thereof all requisites for its validity are present. The forwarding of a copy of the marriage certificate to the registry is not one of said requisites.16 The declaration of the husband or the wife that he or she was married to the offended party in a bigamy or parricide case has much probative value, considering that such is a declaration against his or her own interest.17 However, the marriage contract or marriage certificate is the best evidence to prove the existence of marriage. This the Supreme Court emphasized in Villanueva v. Hon. Court of Appeals, et al.,18 when it affirmed the reversal of the lower courts decision by the

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Court of Appeals, rebuking the trial court in the process: It is strange that the trial court should reject Exhibit A in favor of the Transfer Certificate of Title describing Roberto Sanchez as single, disregarding the elementary principle that the best documentary evidence of a marriage is the marriage contract itself. A Torrens certificate is the best evidence of ownership of registered land, not of the civil status of the owner (bold letters supplied). So that where there is a conflict between the marriage contract and any of the evidence submitted to prove or disprove marriage, the marriage contract shall prevail. Duty of the State to protect marriage The doctrine enunciated consistently by the Supreme Court regarding the duty of the State to protect the integrity of marriage since time immemorial is now enshrined in the present Constitution in Section 2 of Article XV and the first sentence of Section 12 of Article II, to wit: Sec. 2. (Art. XV) Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Sec. 12 (Art. II) The state recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. Active participation of the State in cases involving marriages As part of its compliance with the duty to protect marriage as an inviolable social institution, the State takes active participation in all actions for the annulment, declaration of nullity of marriage,

et al. v. Ambalada, G.R. No.9943, March 8, 1915; U.S. v. Memoracion, et al., G.R. No. 11371, Aug. 1, 1916; De Jacob v. Court of Appeals, et al., G.R. No. 135216, Aug. 19, 1999, 111 SCAD 137. 17 Cf. People v. Samson, 7 SCRA 478 and Tolentino v. Paras, et al., G.R. No. L-43905, May 30, 1983. 18 G.R. No. 84464, June 21, 1991. 19 G.R. No. L-10699, Oct. 18, 1957.

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and legal separation through its lawyers and social workers. The Supreme Court explains why in Brown v. Yambao: 19 The policy of Article 101 of the new Civil Code,20 calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and of annulment of marriages, under Article 8821), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interruption can not be made to depend upon the parties themselves (Civil Code, Article 52; Adong vs. Cheong, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252, italics supplied). It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. In 1997 the State took another step in complying with its duty to protect marriage and the family when it gives authority to the Supreme Court to establish, under the guidance of the Department of Social Welfare and Development, a Social Services and Counselling Division (SSCD) in each judicial region as it shall deem necessary based on the number of juvenile and family cases existing in each such region under Republic Act No. 8369 (R.A. No. 8369), otherwise known as the Family Courts Act of 1997. The SSCD shall be composed of qualified social workers and personnel with academic preparation in behavioral sciences. Its duty is to provide social services to all juvenile and family cases filed with the court and recommend the proper social action. It shall also develop programs, formulate uniform policies and procedures, and provide technical supervision and monitoring of all its personnel in coordination with the judge.22 Its staff or personnel is to conduct intake assessment, social case study, casework, counselling, and other social services that may be needed in connection with the cases filed with the court. It can also avail of itself the services of psychiatrists, psychologists, and other qualified specialist employed in other government agencies in connection with its cases.23 To head the SSCD of the Regional Trial Court the position of Social Workers Adviser shall be created under

Art. 60, Family Code. Art. 48, Family Code. 22 Sec. 9, The Family Courts Act of 1997.
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the Office of the Court Administrator. Clarifying the role of the social workers of the courts under the Family Courts Act of 1997, the Supreme Court en banc issued Resolution No. A.M. 00-8-003-SC mandating that the social workers of the courts should now be assigned to handle and attend to all social services required in all cases, including adoption cases, falling within the jurisdiction fo the Family Court filed with and pending before either the Regional Trial Court designated to hear and decide such cases or the regular Regional Trial Courts, as the case may be. These social workers should, in their own rights, in the first instance and independently of the Department of Social Welfare and Development, conduct the case studies in adoption cases as required by Article 33 of the Child and Youth Welfare Code, as amended, and submit their reports, with recommendations, to the courts handling and hearing such cases. In preparing the case studies, the social workers of the courts need not coordinate with the Department of Social Welfare and Development or its representatives as prescribed in Circular No. 12 dated 2 October 1986. In conformity with the above Resolution, the Supreme Court, under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriage24 and the Rule on Legal Separation,25 respectively, gives the courts authority to seek the assistance of their social workers to conduct a case study on the parties seeking the decree of absolute nullity of their marriage or its annulment or for legal separation. Thus, under the present law the social workers, besides the Prosecutors and the Solicitor General, are to actively participate in cases involving marriages. Default, judgment on the pleadings, summary judgment, not allowed

Sec. 10, The Family Courts Act of 1997. Resolution No. A.M. 02-11-10-SC. 25 Resolution No. A.M. 02-11-11-SC. On March 4, 2003, the Supreme Court en banc issued three resolutions, A.M. No. 02-11-10-SC, A.M. No. 02-11-11-SC, and A.M. No. 02-11-12-SC, approving the Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the Proposed Rule on Legal Separation, and the Proposed Rule on Provisional Orders, respectively. 26 G.R. No. L-23264, March 15, 1974. 27 G.R. No. L-53880, March 17, 1994, 49 SCAD 673.
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Not only does the State take an active part in all actions that tend to dissolve or destroy marriage, such as those for annulment or declaration of nullity of marriage or for legal separation, but also decrees that in such actions the court cannot issue or render default order or default judgment, judgment on the pleadings, or summary judgment. Even without any answer filed, all the material allegations of a petition for annulment, declaration of nullity of marriage, or for legal separation have to be proved in open court, with the state or government prosecutor battling for the validity or preservation of the marriage. The Supreme Court gives the reason for this in Tolentino v. Villanueva, et al.,26 as follows: The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. Pursuant to such judicial pronouncement expressive of the public policy on marriage, the Rules of Court do not allow defaults in an action for annulment or declaration of nullity of marriage or for legal separation under Sec. 3(e), Rule 9, and judgment on the pleadings under Section 1 of Rule 34. Rule 9, Sec. 3(e). Where no defaults allowed. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. (6a, R18) Rule 34, Sec. 1. Judgment on the pleadings. Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse partys pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of
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G.R. No. L-6505, Aug. 23, 1954, en banc.

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nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved. (1a, R19) In Pacete, et al. v. Hon. Carriaga, Jr., et al.,27 the Supreme Court, through Justice Vitug, nullified and set aside the default judgment of the respondent Court of First Instance of Cotabato City, decreeing the legal separation between Enrico L. Pacete, the petitioner, and Concepcion Alanis, the private respondent, and declaring the marriage between Enrico and Clarita de la Concepcion null and void ab initio with the following explanation: . . . In the case at bench, the default order unquestionably is not legally sanctioned. The Civil Code provides: Art. 101. No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. The provision was taken from Article 30 of the California Civil Code, and it is, in substance, reproduced in Article 60 of the Family Code. Article 101 reflects the public policy on marriages, and it should easily explain the mandatory tenor of the law. In Brown v. Yambao, the Court observed: The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested proceedings for legal separation (and annulment of marriages, under Article 88), is to emphasize that marriage is more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or interrup29

G.R. No. L-23433, Feb. 10, 1968, en banc.

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tion cannot be made to depend upon the parties themselves (Civil Code, Article 52; Adong v. Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with this policy that the inquiry by the Fiscal should be allowed to focus upon any relevant matter that may indicate whether the proceedings for separation or annulment are fully justified or not. Art. 103 of the Civil Code, now Article 58 of the Family Code, further mandates that an action for legal separation must in no case be tried before six months shall have elapsed since the filing of the petition, obviously in order to provide the parties a cooling-off period. In this interim, the court should take steps toward getting the parties to reconcile. The significance of the above substantive provisions of the law is further underscored by the inclusion of the following provision in Rule 18 of the Rules of Court: Sec. 6. No defaults in actions for annulments of marriage or for legal separation. If the defendant in an action for annulment of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated. Roque v. Hon. Encarnacion, et al.28 and Jocson v. Robles29 are the authorities that there can be no summary judgment in declaration of nullity and annulment of marriage. The last sentence of Section 1 of Rule 34 supports this judicial stand when it mandates that all material facts alleged in the complaint for annulment or declaration of nullity or for legal separation must be proved, that is, evidence must be presented to, and admitted by, the court, and subjected to the examination of the public prosecutor. Legal sanctions on notaries public and lawyers In Panganiban v. Borromeo30 and Biton v. Momongan,31 the Supreme Court affirmed its right to discipline an attorney for mis-

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conduct as a notary public, and ratifying a contract the covenants of which are contrary to law, morals, and good customs, and tend to subvert the vital foundation of the legitimate family is such a misconduct. Requisites for a valid marriage The law classifies the requisites of a valid marriage into essential and formal. Requisites differ from the concept of marriage. The former refer to what the contracting parties should possess and do to enter into a valid marriage; the latter, to the meaning of valid marriage. Article 2 enumerates what the essential requisites are and Article 3, the formal requisites. The essential requisites are dependent on the parties themselves, like, their being a man and a woman, their capacity to contract marriage, and their consent to take each other as husband and wife. The essential requirements can be traced to the very essence or substance of a valid marriage, i.e., a special contract of permanent union between a man and a woman entered into according to law to establish conjugal and family life. On the other hand, the formal requirements are more dependent on persons other than the parties, like, the authority of the solemnizing officer, a valid marriage license, and the marriage ceremony. The formal requisites refer more to the externalities or formalities that clothe a valid marriage. Essential Requisites Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a)

En banc, September 9, 1933, 58 Phil. 367. En banc, Per Rec. No. L-2555, September 3, 1935, 62 Phil. 7. 32 Singer v. Hara, supra. 33 Art. 391 of the Civil Code The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board
30 31

18

THE LAW ON MARRIAGE

Art. 2

Article 2 gives the essential requisites for a valid marriage, namely, (1) the contracting parties must be a man and a woman, (2) each must have the legal capacity to contract marriage, and (3) each must freely give their consent to be husband and wife to each other before the solemnizing officer. Only a man and a woman can enter into a valid marriage Persons who are of the same sex cannot have a valid marriage. As of the present, no one has yet brought to court the question as to whether a gay or a lesbian is a man or a woman. Can a gay (male physical appearance but with the sexual and emotional leanings of a woman) marry a man? Can a lesbian (female physical appearance but with the sexual and emotional leanings of a man) marry a woman? Will external physical appearance of a person be the determining factor in concluding that he or she is a man or a woman or will other factors come into play, like, for example, feelings, way of looking at things, way of doing things, how one thinks, and other non-physical aspects which clearly delineate a man from a woman? As the law now stands, the biological and physical appearance of a person determines his or her sex. His feelings, emotional and psychological tendencies, etc., may not be in consonance with his biological and physical appearance but they would not affect at all how the law looks at him. The reason is because it is the biological and physical appearance and characteristics which enable a person with female biological appearance and characteristics to reproduce another human being. As has been stated before, our society as a whole views marriage as the appropriate and desirable forum for procreation and the rearing of children. This is true even though married couples are not required to become parents and even though not all couples who produce children are married. These, however, are exceptional situations. The fact remains that marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race. Further, it is apparent that no same-sex marriage offers the possibility of the birth of children by their union. Thus, the refusal of the state to authorize same-sex marriage results from the impossibility of reproduction rather than on account of sex.32 Legal capacity One requisite Article 2 lays down for a valid marriage is that the contracting parties must have the legal capacity to enter into

Art. 2

MARRIAGE Requisites of Marriage

19

marriage. What thing or things should each contracting party have to be able to marry? The qualifications are found in different articles, to wit: a. b. c. Art. 5 and Art. 35(1) which state the minimum marriageable age, 18 years old for both man and woman; Art. 13 and Art. 41 which require that the contracting parties are not married; Art. 40 where a party has to have a final judicial decree declaring his previous marriage null and void from the beginning to be able to remarry; Art. 53 in relation to Art. 52, where a party, whose previous marriage was either annulled or declared a nullity, has to comply with Art. 52 to have the legal capacity to remarry; Art. 41 where a party, whose spouse has been absent for four consecutive years and he has a well-founded belief that the absent spouse is already dead, has to obtain a judicial decree of the presumptive death of the absentee to have the legal capacity to remarry; Art. 37 which prohibits incestuous marriages as defined in it; Art. 38 which prohibits marriages between certain relatives as against public policy; and Art. 36, where one or both parties are psychologically incapacitated to marry.

d.

e.

f. g. h.

The articles on legal capacity to marry are: Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) Art. 35. The following marriages shall be void from the beginning: (1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians. x x x (80a)
a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been

20

THE LAW ON MARRIAGE

Art. 2

Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a) Art. 41. 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 Article 391 of the Civil Code, an absence of only two years shall be sufficient.33 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. (83a) Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. (n) Art. 52. The judgment of annulment or of absolute
heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence

Art. 2

MARRIAGE Requisites of Marriage

21

nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half-blood. (81a) Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) (3) (4) child; Between step-parents and step-children; Between parents-in-law and children-in-law; Between the adopting parent and the adopted

(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) and (9) Between parties where one, with the intention to marry the other, killed that other persons spouse or
has not been known for four years. 34 Cf. Blacks Law Dictionary, Abridged 5th Ed., p. 160. 35 Art. VIII, Constitution. 36 Sec. 4, Art. XI, Constitution.

Between adopted children of the same adopter;

22

THE LAW ON MARRIAGE

Art. 2

his or her own spouse. (82a) Art. 36. 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. (n) (as amended by E.O. No. 227, dated July 17, 1987) Consent freely given Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) Consent is a concurrence of will; the voluntary yielding of the will of one to the proposition of another; the acquiescence or compliance of one to the proposition of another; agreement between two or more persons regarding some matter or matters.34 Under the Family Code, the consent of the parties to marry each other is manifested in the marriage ceremony where they declare before the solemnizing officer and in the presence of at least two witnesses of legal age that they are taking each other as husband and wife. The marriage certificate shall reflect this declaration of the contracting parties. Formal Requisites Art. 3. The formal requisites of marriage are: (1) (2) Authority of the solemnizing officer; A valid marriage license except in the cases provi-

Art. 3

MARRIAGE Requisites of Marriage

23

ded for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Art. 3 gives the formal requisites of a valid marriage, namely: (1) authority of the solemnizing officer, (2) a valid marriage license, and (3) a marriage ceremony to take place before the solemnizing officer before whom the contracting parties will declare that they take each other as husband and wife in the presence of at least two witnesses of legal age. Solemnizing officers Art. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; (3) Any ship captain or airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) SEC. 444. (Art. 1, Chap. 3, Title 2, Bk. III, R.A. 7160) The Chief Executive: Powers, Duties, Functions
37

B.P. Blg. 129, otherwise known as The Judiciary Reorganization Act of 1980;

24

THE LAW ON MARRIAGE

Art. 3

and Com-pensation. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the municipality and its inhabitants pursuant to Section 16 of this Code, the municipal mayor shall: (1) Exercise general supervision and control over all programs, projects, services, and activities of the municipal government, and in this connection shall: ... (xviii) Solemnize marriages, any provision of law to the contrary notwithstanding; . . The law enumerates the offices or positions which the persons who have the authority to solemnize marriages occupy. The enumeration is exclusive. If the person who solemnizes the marriage is not in the enumeration, he has no authority to solemnize marriages. A retired judge or justice cannot solemnize marriages as he no longer occupies the position of a judge or a justice. Solemnizing officers; incumbent members of the judiciary The courts under the present legal system are: (1) the Supreme Court,35 (2) the Sandiganbayan,36 (3) the Court of Appeals, (3) the Regional Trial Courts, (4) the Metropolitan Trial Courts, (5) the Municipal Trial Courts, (6) the Municipal Trial Courts in Cities, (7) Municipal Circuit Trial Courts, (8) the Sharia Courts,37 and (9) the Court of Tax Appeals.38 Under Art. 7(1), the incumbent members of the judiciary can solemnize marriages within the jurisdiction of the courts of which they are members. The Supreme Court, the Sandiganbayan, Court of Appeals, and Court of Tax Appeals have national jurisdiction. Their members therefore, can solemnize marriages in any part of the Philippines. All other courts have limited jurisdiction, and, hence, their members can solemnize marriages only within the territorial jurisdiction of the courts of which they are presiding. However, in a case, the Supreme Court has ruled that a marriage solemnized by a judge of a Municipal Circuit Trial Court outside the territorial jurisdiction of the court he was presiding is still valid.

Art. 3

MARRIAGE Requisites of Marriage

25

Solemnizing officers; priests, rabbi, imam, minister, etc. Under Art. 7(2), a priest, rabbi, imam, or minister of any church or religious sect can solemnize marriage provided that: 1. 2. He is duly authorized by his church or religious sect, He is registered with the civil registrar general,

3. He is acting within the limits of the written authority granted him by his church or religious sect, and 4. Provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect. Solemnizing officers; ship captain or airplane chief A ship captain or airplane chief can solemnize marriages when one or both contracting parties, who are passengers or crewmembers, are in the point of death and want to marry each other during the flight or voyage, including during stopovers at ports of call. Solemnizing officers; military commander Any military commander (commissioned officer, 1st lieutenant is the lowest commissioned officer) of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, can solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. Solemnizing officers; consul-general, consul, vice-consul Any consul-general, consul or vice-consul can solemnize marriages between Filipinos abroad as provided for in Art. 10 which reads: Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marP.D. No. 1083 created the Sharia courts. 38 R.A. No. 1125, as amended. 39 G.R. No. L-8218, Dec. 15, 1955. 40 G.R. No. L-19671, Nov. 29, 1965. 41 45 Phil. 739, 745. 42 60 Phil. 442, 448.

26

THE LAW ON MARRIAGE

Art. 3

riage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) The consul-general, consul or vice-consul must be officially assigned to the foreign country as the representative of the Philippines. Otherwise he has no authority to solemnize marriages. Solemnizing officers; mayor of a municipality or city Republic Act No. 7160, otherwise known as the Local Government Code of 1991, returns to the mayor of a municipality or city the authority to solemnize marriages. The Family Code took away the authority of the mayor to solemnize marriage by not reproducing Art. 56(4) of the Civil Code. Solemnizing officers; without authority Art. 35. The following marriages shall be void from the beginning: xxx xxx xxx (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; xxx xxx xxx

Under Art. 35(2), a marriage is still valid even if the solemnizing officer does not have the authority to solemnize marriages at the time of the celebration, if one or both parties believe in good faith that he has such authority. Good faith in all parties to a marriage is presumed. He who alleges the contrary must prove it. In Eulogia de Cardenas v. Leoncio Cardenas, et al.,39 the Supreme Court rules that the marriage certificate attesting that a marriage ceremony was performed by a minister gives rise to the presumption that all legal formalities required by law had been complied with and fulfilled. If the minister was not authorized to perform such marriage ceremony, it was incumbent on the defendants to show such lack of authority. The Supreme Court explains this in Tenchavez v. Escao,40 through

Art. 3

MARRIAGE Requisites of Marriage

27

Justice J.B.L. Reyes, saying that the chaplains alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as required by Canon law is irrelevant in our civil law, not only because of the separation of the Church and State but also because . . . the authority of the solemnizing officer was only a formal, not an essential, requirement to give marriage civil effects, citing Section 27 of Act 3613 of the Philippine Legislature (the marriage law in force at the time) which states: No marriage shall be declared invalid because of the absence of one or several of the formal requirements of this Act if, when it was performed, the spouses or one of them believed in good faith (italics supplied) that the person who solemnized the marriage was actually empowered to do so, and that the marriage was perfectly legal. Now, good faith of all the parties to the marriage will be presumed until the contrary is positively proved, the Supreme Court rules, citing as authority Lao v. Dee Tim41 and Francisco v. Jason.42 There is, however, a valid concern voiced by students of the author43 that this presumption of good faith may result in many marriages being solemnized by persons with no authority. As one puts it, Just anybody can now solemnize marriages which may be considered valid because the contracting parties are presumed to have believed in good faith in his authority. It is to be presumed that when the lawmakers enacted this legal provision and when the Supreme Court laid down this rule, they did so because such is reasonable. It is also known to the public (judicial notice) that generally there are only three kinds of professionals who can solemnize marriages, namely, priests (rabbis, imams, ministers belong to this category), judges (justices of appellate courts and the Supreme Court belong to this category), and mayors. So that an average person with an average knowledge of things surrounding him is incline to question any person who claims to have the authority to solemnize marriage and yet is neither a priest, a judge nor a mayor. There were some instances where a person or two asked the author if he could marry some relatives or

43 44

Class LLB 1-3, 1st Semester, SY 2002-2003, College of Law, PUP. A question actually asked by one of the authors students in said class.

28

THE LAW ON MARRIAGE

Art. 3

friends because he was a lawyer. Yet nobody would ask a priest, a judge, or a mayor if he could marry his relatives or friends because it is of public knowledge that such persons can and do usually solemnize marriages. The fact that the author was asked if he could solemnize marriage is a sign that they were in doubt if he had such an authority. So that where a person who solemnized a marriage is neither a priest, a judge, nor a mayor, the presumption of good faith in believing him to have the authority to solemnize marriages cannot apply, it is submitted. What if the mayor, who has the authority to solemnize marriage, asked his secretary to solemnize the marriage because he had to attend to some urgent matter and then signed the marriage certificate, making it appear that he was the one who solemnized the marriage?44 The marriage is null and void from the beginning as the secretary of the mayor has no authority to solemnize the marriage. And the contracting parties cannot put up the defense of good faith. In this case the good faith was not in the belief that the mayors secretary had the authority to solemnize the marriage but rather in the belief that the mayor could validly transfer his authority to solemnize marriage to his secretary. The fact that they approached the mayor to marry them, not the mayors secretary, proves that they did not believe that the mayors secretary had the authority to solemnize marriages. Their belief was that the mayors secretary had now the authority to solemnize their marriage because the mayor had authorized him to.45 The secretary in himself and by himself had no such power. Place of solemnizing marriage Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage

45 A basic principle in Political Law is that a delegated power cannot be delegated further potestas delegata, non potest delegari. 46 Adm. Matter No. MTJ-96-1088, July 19, 1996, 72 SCAD 328. 47 Art. 20, Family Code.

Art. 3

MARRIAGE Requisites of Marriage

29

may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a) Art. 8 states where marriages may be solemnized by any of those persons authorized by law to solemnize them, to wit: 1. 2. 3. Courtroom or chambers of the justice or judge concerned; Church, chapel or temple; Office of the consul-general, consul or vice-consul.

However, the solemnizing officer may solemnize a marriage elsewhere in any of the following cases: 1. Marriages contracted in articulo mortis (Art. 27); 2. Marriages contracted between parties, either one or both living in remote places described under Art. 28; and 3. Where both contracting parties request in writing that the marriage be solemnized in a house or place designated by them in a sworn statement to that effect. The Supreme Court, however, ruled in Navarro v. Domagtoy46 that Article 8 of the Family Code is merely directory, not mandatory. A certain Rodolfo Navarro filed an administrative complaint against Hon. Hernando Domagtoy, the presiding judge of the Municipal Circuit Trial Court of Sta. Monica-Burgos, Surigao del Norte for: (1) solemnizing a marriage where the groom is merely separated from his first wife, and (2) solemnizing a marriage in Dapa, Surigao del Norte, a municipality 40 to 45 kilometers away from Sta. Monica and Burgos. In the case of the second wrongful act imputed to Judge Domagtoy, only the woman requested in writing that the marriage be solemnized in Dapa. However, the Supreme Court declared that the act of Judge Domagtoy in solemnizing the marriage outside his territorial jurisdiction was an irregularity which did not affect the validity of the marriage. The Supreme Court explained: More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the authority of the solemnizing officer. Under
48 49

54 Phil. 176. G.R. No. 127263, April 12, 2000, 125 SCAD 284.

30

THE LAW ON MARRIAGE

Art. 3

Article 7, marriage may be solemnized by, among others, any incumbent member of the judiciary within the courts jurisdiction. Article 8, which is a directory provision, refers only to the venue of the marriage ceremony and does not alter or qualify the authority of the solemnizing officer as provided in the preceding provision. Non-compliance herewith will not invalidate the marriage. Valid marriage license Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality where either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or viceconsul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) xxx xxx xxx Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. (65a) A marriage license may be defined as a permit for a person to marry another wherein it is stated that he has the legal capacity to contract marriage, has no known impediment under the law, and has complied with all the legal requirements, issued by the local civil registrar concerned or by the consular official if the marriage is to be solemnized outside the Philippines. It is valid in any part of the Philippines for one hundred and twenty (120) days. After 120 days the marriage license is automatically cancelled if not used. The
50

J. Sempio-Diy explains that Art. 84 was eliminated in answer to the clamor

Art. 3

MARRIAGE Requisites of Marriage

31

expiry date shall be stamped in bold characters on the face of every marriage license issued.47 Since there is no difference between the marriage license issued by the local civil registrar and by a consular official, a marriage license issued by the latter has a validity also of 120 days. Under Art. 3(2) a marriage solemnized without a valid marriage license is void unless such marriage falls under the exemptions enumerated in Chap. 2 of Title I, Family Code. The government official authorized to issue marriage licenses to applicants therefor is the local civil registrar of the city or municipality where either of the persons planning to get married habitually resides and where they should file their applications for a marriage license under Art. 9. However, a marriage license obtained in a place where neither of the contracting parties habitually resides shall not void the marriage license. This may be gleaned from the ruling of the Supreme Court in People v. Janssen,48 where it reverses the judgment of the Court of First Instance of Antique convicting Rev. Fr. H. Janssen of violating Section 2 of Act No. 3412, holding that: It is sufficient to know that the license has been issued by a competent official, and it may be presumed from the issuance of said license that said official has complied with his duty of ascertaining whether the woman who desires to get married resides habitually in his municipality. (Act 190, Sec. 334, No. 14) It is also submitted that even if it were shown that the person who obtained the marriage license does not habitually reside where the license was issued would not void said marriage license for this constitutes only irregularity in the issuance thereof. For Filipinos getting married in a foreign land, the consulgeneral, consul, or vice-consul representing the Philippines can both issue the marriage license and solemnize their marriage. Under Art. 10, these government officials have the dual functions of the local civil registrar and of the solemnizing officer. However, they can exercise said functions only in the foreign land where they are assigned, not in the Philippines and any other foreign lands.

of the women for equal rights with men, op. cit., p. 239.

32

THE LAW ON MARRIAGE

Art. 3

Courts can declare a marriage null and void ab initio based on lack of a marriage license even if the basis of the petition is psychological incapacity if the evidence so warrants. In Sy v. Court of Appeals, et al.,49 the Supreme Court set aside the decision of the Regional Trial Court of San Fernando, Pampanga which dismissed the petitioners action to have her marriage with her husband declared null and void from the beginning based on the latters psychological incapacity, ruling that the alleged acts of the husband do not constitute psychological incapacity. The Court of Appeals affirmed the RTCs decision. The petitioner went to the Supreme Court and added for the first time the issue of lack of a marriage license when the marriage took place. Although the Supreme Court recognized the rule that an issue cannot be raised for the first time on appeal, as such would contravene the basic rules of fair play and justice, it however considered it because procedural rules are not ends in themselves but exist to protect and promote substantive rights of litigants. Going through the evidence of the case, the Supreme Court found out that the marriage certificate shows the marriage took place on November 15, 1973, and the marriage license was issued on September 17, 1974, almost one year after the marriage ceremony took place. The ineluctable conclusion is that the marriage was indeed contracted without a marriage license. Marriage license; prohibition of issuance of marriage license to widows Art. 84 of the Civil Code prohibits the local civil registrar from issuing a marriage license to a widow unless she will be able to show that: 1. 300 days have already elapsed from the death of her husband, or 2. She had given birth to a child even before the 300 days have elapsed. This provision or one of similar tenor is not found in the Family Code. Thus, it is deemed repealed.50 However, it is submitted that the local civil registrar is still prohibited from issuing a marriage license to widows and women whose marriages have been annulled

51 52

10 Phil. 305. People v. Rosal, 49 Phil. 509.

Art. 3

MARRIAGE Requisites of Marriage

33

or dissolved unless they shall show that 300 days have already elapsed from the death of their husbands or the annulment or dissolution of their marriages, or that they had given birth to a child even before the lapse of 300 days under Art. 351 of the Revised Penal Code. Art. 351 of the Revised Penal Code makes it a crime of premature marriages for a widow or a woman whose marriage has been annulled or dissolved to marry within 301 days from the death of her husband or the annulment or dissolution of the marriage, or before having delivered if she shall have been pregnant at the time of her husbands death, imposing the penalty of imprisonment of arresto mayor and a fine of not more than P500.00. Art. 351 of the Revised Penal Code reads: Any widow who shall marry within three hundred and one days from the date of the death of her husband, or before having delivered if she shall have been pregnant at the time of his death, shall be punished by arresto mayor and a fine not exceeding 500 pesos. The same penalties shall be imposed upon any woman whose marriage shall have been annulled or dissolved, if she shall marry before her delivery or before the expiration of the period of three hundred and one days after the legal separation. The persons liable for premature marriages are: 1. A widow who married within 301 days from the death of her husband or before having delivered if she is pregnant at the time of his death; and 2. A woman who, her marriage having been annulled or dissolved, married before her delivery or before the expiration of the period of 301 days after the date of the legal separation (annulment or dissolution). In United States v. Dulay,51 the Supreme Court gave the reason for the 301 days saying that if the ordinary duration of the pregnancy of the woman is nine months and some days, a tardy birth is not an impossibility. In fixing the period of 301 days, the law admits the

53 54

See Art. 17(3), The Revised Penal Code. Article 33 should be read minus the word Muslims because the law ap-

34

THE LAW ON MARRIAGE

Art. 3

possibility that a woman may be in pregnancy for more than nine months. And the reason for the prohibition is to prevent confusion in connection with filiation and paternity, inasmuch as the widow might have conceived and become pregnant by her late husband. The purpose of the law is to prevent doubtful paternity.52 If the local civil registrar issues a marriage license to a widow or a woman whose marriage has been annulled without the latter showing him that 300 days have elapsed from her husbands death or that she had already delivered a child, or from the date of the annulment or legal separation, and it happens that neither of the exempting circumstances are present, he may be charged with the crime of premature marriages as principal by indispensable cooperation with the widow or the woman, as the case may be, as principal by direct participation.53 It is submitted that in this case the local civil registrar has the obligation to refuse issuing the marriage license even if all the other requirements have been complied with as to do otherwise will result in the commission of the crime of premature marriages. This prohibition also applies to the consul-general, consul and vice-consul representing the Philippines in a foreign land. Marriage license; exemptions The law is not blind. It recognizes the realities of life. It sees that there are certain situations which will make it hard, if not nigh impossible, for a party wanting to marry to obtain a marriage license. Articles 27, 28, 33, and 34 of the Family Code describe the circumstances which exempt contracting parties from the marriage license requirement. Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) Art. 28. 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 the necessity of

plicable to Filipino Muslims is P.D. No. 1083, otherwise known as Code of Muslim Personal Laws of the Philippines.

Art. 3

MARRIAGE Requisites of Marriage

35

a marriage license. (72a) Art. 33. Marriages among Muslims or among members of 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. (78a) Art. 34. 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 and found no legal impediment to the marriage. (76a) The circumstances which exempt the contracting parties from the requirement of getting a marriage license before marrying are grouped into: 1. Marriages in articulo mortis (Art. 27); 2. Marriages where one or both contracting parties live in a remote place (Art. 28); 3. Marriages between Muslims54 or members of an ethnic minority (Art. 33); and 4. Marriages between common-law spouses living together for at least 5 years (Art. 34). A marriage in articulo mortis is one where one or both parties are in the point of death. Remote place suggests a place where the transportation from the residence of one party to the office of the local civil registrar is quite scarce or not existing at all. In these cases, marriage license is not required. So also are marriages between members of an ethnic minority, or between a man and a woman who have been cohabiting for at least five years and there is no legal impediment for them to get married, exempted from the marriage license requirement. Where one party is not a member of an ethnic minority, marriage license is required. A marriage between a man and a woman who have been cohabiting for at least five years must be such that there is no legal impediment between them. If there is, then the exemption for marriage license does not apply. For further
55

Sempio-Diy, Alicia V., Handbook on The Family Code of the Philippines, p. 7.

36

THE LAW ON MARRIAGE

Art. 3

discussion of these exemptions, see Chapter 2. Marriage ceremony Art. 3.(3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) Marriage ceremony or wedding as a formal requisite whose absence makes a marriage void ab initio is new and is not found in the Civil Code. Under the Articles above quoted, marriage ceremony takes place when the contracting parties exchange vows before the solemnizing officer and in the presence of at least two witnesses of legal age. There is no fixed or prescribed form or religious rite for the solemnization of the marriage. What is vital is that the contracting parties appear personally before the solemnizing officer and declare before him and, at least, two witnesses that they are taking each other as husband and wife. When one of the contracting parties is at the point of death and he cannot sign the marriage contract, the legal requirement under the Article is satisfied if one of the witnesses writes the name of the
Art. 54, Civil Code. The lowest ranking commissioned officer is 1st lieutenant. 58 Supra.
56 57

Art. 3

MARRIAGE Requisites of Marriage

37

concerned party to which fact the solemnizing officer shall attest in the marriage certificate or contract itself. What if no witness wrote the name of the party at the point of death and the solemnizing officer did not so attest in the marriage certificate? The marriage is still valid as the formal requisite of a marriage ceremony has been complied with. A defect in the marriage certificate does not affect the validity of the marriage. In fact, a marriage is valid so long as it has complied with all the legal requisites even if there is no marriage certificate. A marriage certificate is merely a document that shows that a man and a woman have entered into marriage, declaring that they are taking each other as husband and wife, in a particular time and place, solem-nized by a person authorized to marry, with two or more persons of legal age witnessing said marriage ceremony. Absence, defect, and irregularity, their effect Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2). A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. An irregularity in the formal requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n) Absence Absence means absolute lack or not present. Hence, absence of any of the essential or formal requisites means absolute lack of any of the essential or formal requisites. The absence may refer to the distinction between the sex of the persons who want to get married, meaning they are not man and woman, so that their marriage cannot be valid. The absence may refer to the legal capacity of one party or both parties to the marriage, either because one is below 18 years old or both are below 18 years old, or one is already legally married to another, or the parties are first cousins, or absolute lack of consent of one party as when one gave his consent to being the husband of the other, thinking the woman, who was wearing a mask, as his fiance but who in reality was only a cousin of his fiance and wanted to play a joke on him. All of these are examples of absolute

38

THE LAW ON MARRIAGE

Art. 4

lack of an essential requisite. Examples of absence of a formal requirement are when the solemnizing officer has no authority to solemnize the marriage, or when there is no marriage license obtained by the parties to the marriage, or when the contracting parties did not appear before the solemnizing officer and declare personally that they were taking each other as husband and wife. Marriages absolutely lacking any of the essential or formal requirements are void ab initio. Defect Defect, according to Blacks Law Dictionary, means deficiency or imperfection or insufficiency; the want or absence of something necessary for completeness or perfection; a lack or absence of something essential to completeness; a deficiency in something essential to the proper use for the purpose for which a thing is to be used. Hence, a defect in any of the essential requisites means that there is a want or absence of something necessary for the completeness of the essential requisite concerned. A defect in any of the essential requisites shall render the marriage voidable. Examples would be when a man or woman between 18 and 21 years old married without parental consent, or when the consent of one contracting party was obtained through fraud, intimidation, force or undue influence. Irregularity Irregularity, according to Blacks Law Dictionary, is the want of adherence to some prescribed rule or mode of proceeding, consisting either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseason-able time or improper manner. An irregularity therefore, in a formal requisite means that the formal requisite concerned was not done or done in an unreasonable time or improperly. An irregularity in any formal requisites of marriage does not affect its validity but the party or parties responsible for the irregularity would be liable, whether administratively, civilly, or criminally. Thus, the Supreme Court held in Domagtoy that what Judge Domagtoy did was irregular but irregularity in the formal requisite laid down in Article 3 does not affect the validity of marriage although it may subject the officiating judge to administrative liability. Justice Sempio-Diy55 gave the following examples of irregu-

Art. 4

MARRIAGE Requisites of Marriage

39

larity: 1. The marriage license was not applied for in the residence where either of the contracting parties habitually resides; 2. The marriage license was signed by a mere employee of the office of the proper local registrar although so authorized by said local registrar; 3. The marriage license was issued even before the 10-day period for the posting of the application for marriage license had elapsed. Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage. (54a) This is quite a change from the provisions of the Civil Code where the marriageable age for a man is sixteen years old and for a woman, fourteen years old.56 See the discussion of Article 2(1), legal capacity of contracting parties. Art. 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer. In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a) The solemnization of the marriage is called marriage ceremony by Art. 3(3) and is one of the formal requisites of marriage. Its absence shall render the marriage null and void ab initio by express provision of Art. 4. Marriage ceremony or wedding may be elaborate or may be simple. One can spend huge sums of money on it or a few hundreds of
59 Art. 64. Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons

40

THE LAW ON MARRIAGE

Arts. 5-7

pesos only. What the law requires is that the marriage ceremony is one where the contracting parties are personally present and before the solemnizing officer and at least two witnesses of legal age declare that they take each other as husband and wife. The docu-mentation of the marriage ceremony is called marriage certificate. For further discussion see marriage ceremony, formal requisites. Art. 7. Marriage may be solemnized by: (1) Any incumbent member of the judiciary within the courts jurisdiction; (2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted him by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officers church or religious sect; (3) Any ship captain or airplane chief only in the cases mentioned in Article 31; (4) Any military commander of a unit to which a chaplain is assigned, in the absence of the latter, during a military operation, likewise only in the cases mentioned in Article 32; or (5) Any consul-general, consul or vice-consul in the case provided in Article 10. (56a) A perusal of the Article reveals that under ordinary circumstances, the solemnizing officers are usually judges, priests, or mayors (R.A. No. 7160). The ship captain, airplane chief or chief pilot, a military commander who should be a commissioned officer,57 consul-general, consul, or vice-consul can solemnize marriages only under special circumstances. Ship captain, airplane chief, military commander can solemnize marriages in articulo mortis. Consulgeneral, consul or vice-consul can solemnize marriages only in a foreign country where he is the authorized representative of the Philippines. For further discussion, see solemnizing officers and exemptions from marriage license under formal requisites.

under oath. If he is convinced that there is an impediment to the marriage, it shall

Art. 8

MARRIAGE Requisites of Marriage

41

Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open court, in the church, chapel or temple, or in the office of the consul-general, consul or vice-consul, as the case may be, and not elsewhere, except in cases of marriages contracted at the point of death or in remote places in accordance with Article 29 of this Code, or where both of the parties request the solemnizing officer in writing in which case the marriage may be solemnized at a house or place designated by them in a sworn statement to that effect. (57a) The objective of this article is to make the marriage as public as possible. However, the Supreme Court has ruled that this is merely directory, not mandatory. For further discussion, see place of solemnizing marriage, formal requisites. Art. 9. A marriage license shall be issued by the local civil registrar of the city or municipality were either contracting party habitually resides, except in marriages where no license is required in accordance with Chapter 2 of this Title. (58a) The law gives the authority and duty to issue a marriage license to the local civil registrar. The contracting parties must apply for marriage license in the place where one of them habitually resides. However, an application for marriage license in a place where not one of the contracting parties habitually resides and which application is granted, will not invalidate the marriage license. For further discussion, see valid marriage license, formal requisites. Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) What if one of the contracting parties to be married in a foreign land by a consul is not a Filipino, can the latter still marry them? Can a consul marry Filipinos outside of his office? These are quesbe his duty to withhold the marriage license, unless he is otherwise ordered by a

42

THE LAW ON MARRIAGE

Arts. 9-10

tions which have to be asked considering the statutory wordings of the articles concerned. If one goes by the ruling in Domagtoy,58 the answer to both questions is in the affirmative. This is because the Supreme Court has ruled that what is the primary importance in the solemnization of the marriage by a solemnizing officer is his authority, not the place, and the contracting parties, as long as they do not have any legal impediment, it may be added. The exact words of the Supreme Court are: More importantly, the elementary principle underlying this provision is the authority of the solemnizing judge. For further discussion see valid marriage license, formal requisites. Procedure in obtaining a marriage license Articles 11 to 19 contain all the things the parties, their parents or guardians, and the concerned local civil registrar should do for the issuance of the marriage license. Art. 11. Where a marriage license is required, each of the contracting parties shall file separately a sworn application for such license with the proper local civil registrar which specify the following: (1) (2) (3) (4) Full name of the contracting party; Place of birth; Age and date of birth; Civil status;

(5) If previously married, how, when and where the previous marriage was dissolved or annulled; (6) (7) (8) and (9) Present residence and citizenship; Degree of relationship of the contracting parties; Full name, residence and citizenship of the father; Full name, residence and citizenship of the mother;

(10) Full name, residence and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twentyone years.
competent court. (n)

Art. 11

MARRIAGE Requisites of Marriage

43

The applicants, their parents or guardians shall not be required to exhibit their residence certificates in any formality in connection with the securing of the marriage license. (59a) Art. 11 is the first step in getting a marriage license. It requires that the contracting parties file separately a sworn application for a marriage license with the proper office of the local civil registrar with the following personal data: (1) full name of the contracting party, (2) his place of birth, (3) age and birthday, (4) civil status, (5) if previously married, how, when, and where the previous marriage was dissolved or annulled, (6) present residence and citizenship, (7) degree of relationship of the contracting parties, (8) full name, residence, and citizenship of the father, (9) full name, residence, and citizenship of the mother, and (10) full name, residence, and citizenship of the guardian or person having charge, in case the contracting party has neither father nor mother and is under the age of twenty-one years. An applicant for marriage license who lies or gives intentionally a false datum or fact in his application commits perjury. However, the marriage license issued to him will still be valid. It may also open the local civil registrar who issued the marriage license knowing that the applicant gave some false data or facts in his application to criminal and administrative charges. Art. 12. The local civil registrar, upon receiving such application, shall require the presentation of the original birth certificates or, in default thereof, the baptismal certificates of the contracting parties or copies of such documents duly attested by the persons having custody of the originals. These certificates or certified copies of the documents required by this Article need not be sworn to and shall be exempt from the documentary stamp tax. The signature and official title of the person issuing the certificate shall be sufficient proof of its authenticity. If either of the contracting parties is unable to produce his birth or baptismal certificate or certified copy of either because of the destruction or loss of the original, or if it is shown by an affidavit of such party or of any other person that such birth or baptismal certificate has not yet been received though the same has been required of the person

44

THE LAW ON MARRIAGE

Art. 12

having custody thereof at least fifteen days prior to the date of the application, such party may furnish in lieu thereof his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or any public official authorized to administer oaths. Such instrument shall contain the sworn declaration of two witnesses of lawful age, setting forth the full name, residence and citizenship of such contracting party and of his or her parents, if known, and the place and date of birth of such party. The nearest of kin of the contracting parties shall be preferred as witnesses, or, in their default, persons of good reputation in the province or the locality. The presentation of the birth or baptismal certificate shall not be required if the parents of the contracting parties appear personally before the local civil registrar concerned and swear to the correctness of the lawful age of said parties, as stated in the application, or when the local civil registrar shall, by merely looking at the applicants upon their personally appearing before him, be convinced that either or both of them have the required age. (60a) Art. 12 tells what documents should the local civil registrar require the applicants to present upon receipt of their applications for a marriage license. The documents to be presented are: (1) Original birth certificates of the contracting parties, or (2) Their original baptismal certificates in default of the birth certificates, or (3) The certified true copies of their birth certificates or baptismal certificates. If the applicant cannot present any of the above documents because of the loss or destruction of its original, or because he has not received it yet from the official custodian although the latter has been required to furnish him said document at least fifteen days before the application for the marriage license, then he can present his current residence certificate or an instrument drawn up and sworn to before the local civil registrar concerned or a public officer authorized to administer oaths. The instrument is a sworn declaration of two witnesses of legal age, stating the following: a. Full name, residence, and citizenship of the applicant,

Art. 12

MARRIAGE Requisites of Marriage

45

b. c.

His parents if known, Place and date of the applicants birth.

The law prefers that the two witnesses are the nearest of kin of the applicant or, if such are not available, persons of good reputation of the locality or province of his residence. However, the presentation of the above documents shall not be required if: a. The parents of the contracting parties personally appear before the local civil registrar and swear to the correctness of their lawful age, or b. The local civil registrar shall be convinced that either or both of the contracting parties are of age to marry by merely looking at the applicants when they appear personally before him. Art. 13. In case either of the contracting parties has been previously married, the applicant shall be required to furnish, instead of the birth or baptismal certificate required in the last preceding Article, the death certificate of the deceased spouse or the judicial decree of the absolute divorce, or the judicial decree of annulment or declaration of nullity of his or her previous marriage. In case the death certificate cannot be secured, the party shall make an affidavit setting forth this circumstance and his or her actual civil status and the name and date of death of the deceased spouse. (61a) Art. 13 envisages a situation where one or both of the parties to be married have been previously married. Then instead of a birth or baptismal certificate, the party concerned must present: a. b. c. The death certificate of his deceased spouse, or The judicial decree of annulment, or Declaration of nullity of the previous marriage.

In case the death certificate cannot be secured, the party concerned shall make an affidavit explaining why he can not secure the death certificate of his deceased spouse, his actual civil status, and the name of the deceased spouse and the date of her death.

46

THE LAW ON MARRIAGE

Arts. 13-14

Art. 14. In case either or both of the contracting parties, not having been emancipated by a previous marriage, are between the ages of eighteen and twenty-one, they shall, in addition to the requirements of the preceding articles, exhibit to the local civil registrar, the consent to their marriage of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned. Such consent shall be manifested in writing by the interested party, who personally appears before the proper local civil registrar, or in the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths. The personal manifestation shall be recorded in both applications for marriage license, and the affidavit, if one is executed instead, shall be attached to said application. (61a) Under this legal provision, a man and a woman, who are 18 to 20 years old and intend to marry each other, are to get the consent of their parents or surviving parent, or, in case their parents are dead or their whereabouts are unknown, of their guardian or person who has legal charge over them. This article sees to it that such consent has really been obtained by requiring the submission of the documents needed as proof of the consent obtained. Thus, the contracting parties are also to present personally to the local civil registrar the written consent to their marriage by their parents, or the surviving parent, or, if they have no parents anymore, their guardian or person who has legal charge over them. If there is no written parental consent, then the applicant shall present to the local civil registrar his affidavit, with two witnesses attesting to the affidavit, stating under oath before an official authorized by law to administer oath, that he and his would-be wife have already obtained their parents consent or that of their guardian or person who has legal charge over them. The personal manifestation of the applicant shall be recorded in the applications for marriage license, or, if it is an affidavit executed, the affidavit shall be attached to said applications. Art. 15. Any contracting party between the age of twenty-one and twenty-five shall be obliged to ask their parents or guardian for advice upon the intended marriage. If they do not obtain such advice, or if it be unfavorable, the marriage license shall not be issued till after three months following

Art. 15

MARRIAGE Requisites of Marriage

47

the completion of the publication of the application therefor. A sworn statement by the contracting parties to the effect that such advice has been sought, together with the written advice given, if any, shall be attached to the application for marriage license. Should the parents or guardian refuse to give any advice, this fact shall be stated in the sworn statement. (62a) If the contracting parties are between the ages of 21 and 25, besides the birth or baptismal certificate, they are required to obtain the advice of their parents or surviving parent, or, if they are dead or their whereabouts unknown, of the guardian or person who has legal charge over them. The article sees to it that such a requirement has been complied with by requiring the contracting parties applying for a marriage license to present to the local civil registrar, besides their birth or baptismal certificate, their sworn statement, to be attached to the applications, where they shall state that they sought the advice of their parents or parent concerned, their guardian or person who has legal charge over them, and that such an advice was given. If the advice is in writing, it should be attached also to the applications. If the parents or parent concerned, or the guardian or person who has legal charge over them, refused to give an advice or the advice is unfavorable, such refusal or unfavorable advice shall be stated in the sworn statement. If the parents, etc., refuse to give advice to the marriage or the advice is unfavorable, the marriage license shall not be issued until after three months following the completion of the application for the marriage license. Art. 16. In the cases where parental consent or parental advice is needed, the party or parties concerned shall, in addition to the requirements of the preceding articles, attach a certificate issued by a priest, imam or minister authorized to solemnize marriage under Article 7 of this Code or a marriage counsellor duly accredited by the proper government agency to the effect that the contracting parties have undergone marriage counselling. Failure to attach said certificate of marriage counselling shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. Issuance of the marriage license within the prohibited period shall subject the issuing officer to administrative sanctions but shall not

48

THE LAW ON MARRIAGE

Art. 16

affect the validity of the marriage. Should only one of the contracting parties need parental consent or parental advice, the other party must be present at the counselling referred to in the preceding paragraph. (n) Where the contracting parties are between the ages 18 and 25 years old, they are to undergo marriage counselling of a priest, imam or minister authorized to solemnize marriage under Art. 7, or a marriage counsellor duly accredited by the proper government agency. The priest, imam or minister authorized to solemnize marriage or the marriage counsellor duly accredited by the proper government agency, shall issue a certification that the parties concerned have undergone the required marriage counselling. This certification or certificate shall be attached to the applications for a marriage license. Failure to attach such a certificate to the applications shall suspend the issuance of the marriage license for a period of three months from the completion of the publication of the application. If, however, inspite of such failure the local civil registrar issues the marriage license within the prohibited period, he shall be subject to administrative sanctions but the validity of the marriage license and the marriage shall not be affected. However, even if only one party falls under this Article, he being between the ages of 18 to 25, and the other party does not, being more than 25 years old, the latter has still to attend the marriage counselling together with the former. There is wisdom behind this legal provision because marriage counselling involves two parties, the would-be husband and the would-be wife. Without the other, the marriage counselling is practically useless. The objective of such marriage counselling is to have more understanding about the marital relationship, about the roles of husband and wife, what they should expect from one another, etc. Art. 17. The local civil registrar shall prepare a notice which shall contain the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall be posted for ten consecutive days on a bulletin board outside the office of the local civil registrar located in a conspicuous place within the building and accessible to the general public. This notice shall request all persons having knowledge of any impediment to the marriage to advise the local civil registrar thereof. The

Art. 17

MARRIAGE Requisites of Marriage

49

marriage license shall be issued after the completion of the period of publication. (63a) Art. 17 orders the local civil registrar to prepare a notice containing the full names and residences of the applicants for marriage license and other data, and to post it for ten consecutive days on a bulletin board outside his office located in a conspicuous place within the building and accessible to the general public. Upon the completion of ten days of publication, the local civil registrar shall issue the marriage license. Art. 18. In case of any impediment known to the local civil registrar or brought to his attention, he shall note down the particulars thereof and his findings thereon in the application for a marriage license, but shall nonetheless issue said license after the completion of the period of publication, unless ordered otherwise by a competent court at his own instance or that of any interested party. No filing fee shall be charged for the petition nor a bond required for the issuance of the order. (64a) Art. 18 tells the local civil registrar what to do should he come to know of any impediment to the intended marriage of the applicants. Under this article the local civil registrar has no discretion to refuse to issue the marriage license. The only time that he can refuse to issue the marriage license is when a court of competent jurisdiction orders him not to. He himself or any other interested party can file the appropriate action with a court of competent jurisdiction if he thinks that the impediment is enough to void or make the marriage voidable. An interested party may be anyone who may be affected by the marriage, either personally or proprietarily. The local civil registrar is under obligation to issue the marriage license upon full compliance of all the requirements by the applicant unless enjoined by a court of competent jurisdiction. This is a very radical change from Art. 64 of the Civil Code under which the local civil registrar has the duty to withhold the marriage license when his investigation reveals an impediment to the marriage.59 Art. 19. The local civil registrar shall require the payment of the fees prescribed by law or regulations before the issuance of the marriage license. No other sum shall be collected in the nature of a fee or tax of any kind for the issuance of the said license. It shall, however, be issued free of charge to indigent parties, that is, those who have no visible

50

THE LAW ON MARRIAGE

Arts. 18-19

means of income or whose income is insufficient for their subsistence, a fact established by their affidavit or by their oath before the local civil registrar. (65a) Art. 19 tells the local civil registrar to require payment of the fees prescribed by law or regulations before issuing the marriage license. However, the marriage license shall be issued free of charge to indigent applicants as established by their affidavit or their oath before the local civil registrar. Art. 20. The license shall be valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it. The expiry date shall be stamped in bold characters on the face of every license issued. (65a) The marriage license shall be valid in any part of the Philippines for one hundred twenty days from the date of issue. It can even be used in the Philippine embassy in a foreign country or places which international law recognizes as part and parcel of the Philippine territory even though the place is in a foreign land. Upon the expiry date, stamped boldly on its face, the marriage license is automatically cancelled, meaning it can no longer be considered a marriage license for the purpose of marrying. For further discussion see formal requisites: valid marriage license. Foreigners and stateless persons wanting to marry in the Philippines Art. 21. 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. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required,
(a) to (c) are found in Art. 12, Family Code. Art. 13, Family Code. 62 Art. 14, Family Code. 63 Art. 15, Family Code. 64 Art. 16, Family Code.
60 61

Arts. 20-21

MARRIAGE Requisites of Marriage

51

submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) Where one or both of the contracting parties are citizens of a foreign country and they want to get married in the Philippines, the party or parties applying for a marriage license should submit with the local civil registrar a certificate of legal capacity to contract marriage issued by his or their diplomatic or consular official. Stateless persons or refugees from other countries shall submit an affidavit stating the circumstances that show their capacity to marry. Contents of marriage certificate Art. 22. The marriage certificate, in which the parties shall declare that they take each other as husband and wife, shall also state: (1) party; (2) The full name, sex and age of each contracting Their citizenship, religion and habitual residence;

(3) The date and precise time of the celebration of the marriage; (4) That the proper marriage license has been issued according to law, except in marriages provided for in Chapter 2 of this Title; (5) That either or both of the contracting parties have secured the parental consent in appropriate cases; (6) That either or both of the contracting parties have complied with the legal requirement regarding parental advice in appropriate cases; and (7) That the parties have entered into marriage settlements, if any, attaching a copy thereof. (67a) Duties of the solemnizing officer Art. 23. It shall be the duty of the person solemnizing the marriage to furnish either of the contracting parties the original of the marriage certificate referred to in Article 6 and to send the duplicate and triplicate copies of the

52

THE LAW ON MARRIAGE

Arts. 22-23

certificate not later than fifteen days after the marriage, to the local civil registrar of the place where the marriage was solemnized. Proper receipts shall be issued by the local civil registrar to the solemnizing officer transmitting copies of the marriage certificate. The solemnizing officer shall retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases, the affidavit of the contracting party regarding the solemnization of the marriage in a place other than those mentioned in Article 8. (68a) ---------Art. 29. In cases provided for in the two preceding Articles, 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 relationship of the contracting parties and the absence of legal impediment to the marriage. (72a) ---------Art. 30. The original of the affidavit required in the last preceding Article, 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. (73a) The officer who solemnizes a marriage has the following duties: 1. To furnish either of the contracting parties the original of the marriage certificate; 2. To send the duplicate and triplicate copies of the marriage certificate not later than 15 days after marriage to the local civil registrar of the place where the marriage was solemnized; 3. To retain in his file the quadruplicate copy of the marriage certificate, the original of the marriage license and, in proper cases,

Arts. 29-30

MARRIAGE Requisites of Marriage

53

the affidavit of the contracting parties regarding the solemnization of the marriage in a place other than those mentioned in Article 8; 4. In cases provided for in Articles 27 and 28, to 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 he took the necessary steps to determine the ages and relationship of the contracting parties who do not have any legal impediment to marry each other; 5. To send to the local civil registrar where the marriage was solemnized the original of the affidavit required under article 29 together with a legible copy of the marriage contract within 30 days after marriage; and 6. Under Art. 34, to state under oath that he had ascertained the qualifications of the contracting parties who have been living together as husband and wife for at least 5 years and found no legal impediment to the marriage. Duties of the Local Civil Registrar Art. 24. It shall be the duty of the local civil registrar to prepare the documents required by this Title, and to administer oaths to all interested parties without any charge in both cases. The documents and affidavits filed in connection with applications for marriage licenses shall be exempt from documentary stamp tax. (n) ---------Art. 25. The local civil registrar concerned shall enter all applications for marriage licenses filed with him in a registry book strictly in the order in which the same are received. He shall record in said book the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary. (n) The duties of the local civil registrar are found in articles 12, 13, 14, 15, 16, 17, 18, 19, 24, and 25. Articles 12 to 19 have already been discussed in the procedure in obtaining a marriage license

54

THE LAW ON MARRIAGE

Arts. 24-25

above. His duties may be summarized as follows: 1. To require the applicants for marriage license to present the following documents: (a) The original of their birth certificates or, in absence or default thereof, the original of their baptismal certificates. (b) The certified copies of the above documents if the originals cannot be produced. (c) Current residence certificates or an instrument under oath, if none of the documents required in the two preceding numbers can be presented because of their destruction or loss, or because they have not yet received the same from the official custodian of the documents inspite of the fact that their request for the production of the documents was made fifteen days before their application for the marriage license. The instrument shall contain the sworn declaration of two witnesses of legal age, setting forth the applicants full names, their residences and citizenship, the full names, residences, and citizenship of their respective parents, the places and dates of their birth. The witnesses preferred are the nearest of kin of the applicants or, in their default, persons of good reputation in the province or locality of the applicants. All the above documents need not be presented if the parents of the applicants personally appear and swear to the correctness of the lawful age of the contracting parties, or if the local civil registrar is convinced that the contracting parties are of lawful age by merely looking at them.60 (d) The death certificate of the deceased spouse or the judicial decree of annulment or declaration of nullity of his previous marriage, if the applicant has been previously married. If the death certificate cannot be secured, an affidavit setting forth this circumstance, his actual civil status, and the name and date of the death of the deceased spouse.61 (e) If the applicants are between 18 and 21 years old, the consent of the parents, guardian, or person who has legal charge over them, which can be manifested either by the parents, guardian, or the person having legal charge, personally appearing before the local civil registrar and declaring their consent, which consent shall be recorded in both applications for marriage license, or through an affidavit made before two

Arts. 24-25

MARRIAGE Requisites of Marriage

55

witnesses and attested before any official authorized by law to administer oaths. The affidavit shall be attached to the applications.62 (f) If the applicants are between 21 and 25 years old, their sworn statement that they have sought the advice of their respective parents and which advice was put in writing and attached to the sworn statement. The sworn statement and the written advice are to be attached to the application for marriage license. If their respective parents have refused to give such advice or their advice was unfavorable to their getting married, such refusal or unfavorable advice should be stated in the sworn statement. If the parents or persons concerned do not give their advice or give unfavorable advice to the intended marriage, the local civil registrar shall not issue that marriage license until after three months from the completion of the publication of the application therefor.63 (g) A certificate by a priest, imam, minister authorized to solemnize marriages, or marriage counsellor duly accredited by the proper government agency, stating that the applicants have undergone marriage counseling, if the contracting parties are between the ages of 18 to 25 years. The certificate shall be attached to the application for the marriage license. Failure to attach such certificate shall suspend the issuance of the marriage license for three months from the completion of the publication of the application. However, a marriage license issued within the prohibited period shall not invalidate the marriage.64 2. After receiving all the documents needed for the application of marriage license, the local civil registrar shall do the following: (a) Prepare a notice which contains the full names and residences of the applicants for a marriage license and other data given in the applications. The notice shall request all persons having knowledge of any impediment to the marriage to advise him thereof.65

1st sentence of Art. 17, Family Code. 2nd sentence of Art. 17, Family Code. 67 Art. 18, Family Code.
65 66

56

THE LAW ON MARRIAGE

Arts. 24-25

(b) Post the notice for ten consecutive days on a bulletin board outside his office located in a conspicuous place within the building and accessible to the general public.66 (c) Write down the particulars of the impediment known to him personally or brought to his attention, and his findings thereon in the application for a marriage license.67 (d) Issue the marriage license applied for after the completion of the period of publication thereof unless ordered otherwise by a competent court at his own instance or that of an interested party.68 (e) Require payment of fees prescribed by law or regulations from the applicants before issuing the marriage license. However, if the applicants are indigent parties, the marriage license shall be issued free of charge. The applicants can establish their being indigent by their affidavit or by their oath before the local civil registrar that they have no means of income or that their income is insufficient for their subsis-tence.69 (f) Prepare all the documents required by Title 1 without charge.70 (g) Administer oaths to all interested parties without charge.71 (h) Enter all applications for marriage license filed with him in a registry book strictly in the order in which the same are received.72 (i) Record the names of the applicants, the date on which the marriage license was issued, and such other data as may be necessary.73 Marriages solemnized in foreign countries Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5), and (6), 36, 37 and 38.
2nd part of Art. 18, Family Code. Art. 19, Family Code. 70 Art. 24, Family Code. 71 Art. 24, Family Code.
68 69

Art. 26

MARRIAGE Requisites of Marriage

57

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 likewise have capacity to remarry under Philippine law. (n) (as amended by E.O. No. 227, dated July 17, 1987) Marriage in foreign countries: lex loci celebrationis Article 26 is an expression of the principle called lex loci celebrationis, that is, the law of the place of celebration. This means that the law where the marriage takes place governs. If the marriage is celebrated in accordance with the law of the place where it is celebrated, then it is valid; if celebrated not in accordance with, or in violation to, the law of the place where it is celebrated, then it is null and void. That is why the court requires that for the State to recognize the validity of a marriage celebrated in a foreign land, the party seeking such recognition must prove three things before the courts, namely: (1) the existence of the foreign law as a question of fact, (2) the alleged foreign marriage, and (3) the alleged foreign marriage being celebrated in accordance with the foreign law by convincing evidence.74 Because the foreign law has to be treated as a fact, it cannot be taken judicial notice of. This was what the Supreme Court held in Yam Ka Lim v. The Insular Collector of Customs,75 ruling that the lower court committed an error in taking judicial notice of what the laws of marriage in China are. The statutes of other countries must be pleaded and proved the same as any other fact. The Supreme Court first expressed this rule in Sy Joc Lieng, et al. v. Encarnacion, et al.:76 When in a litigation the application of a foreign law, for example the law of China, is sought, it is necessary to prove before the courts of the Islands, in a satisfactory manner, the existence of such a law as a question of fact and when proof of such a law is lacking, it is improper to apply unknown laws to suits pending before the courts
Art. 25, Family Code. Art. 25, Family Code. 74 Adong v. Cheong Seng Gee, G.R. No. L-18081, March 3, 1922, en banc. 75 G.R. No. 9906, March 5, 1915, en banc. 76 G.R. No. 4718, March 19, 1910. 77 Taken from No. 7 of the Syllabus. 78 See also Woo Yiu v. Vivo, et al., G.R. No. L-21076, March 31, 1965, en banc.
72 73

58

THE LAW ON MARRIAGE

Art. 26

of the Islands.77 And if the party seeking the judicial recognition of the validity of a marriage fails to allege and prove the foreign law on marriage in court, then the foreign law shall be presumed to be the same as that of the Philippines.78 In Yao Kee, et al. v. Sy-Gonzales, et al.,79 the Supreme Court ruled that there was no valid marriage between Yao Kee and Sy Kiat because the evidence presented proved only the fact of marriage but not the Chinese law or custom in accordance with which such a marriage should be celebrated. To quote the Supreme Court verbatim, These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom. For the court to be able to decree that a foreign marriage is valid, the concerned party must not only prove the fact of marriage but that such marriage was celebrated in accordance with the applicable law of the land where it took place. Proving the unwritten law of a foreign country What if the marriage law of a foreign country in question is unwritten, how can it be proved? The former Section 45 of Rule 130, Rules of Court, before the amendments of the rules on evidence on July 1, 1989, provides as follows: The oral testimony of witnesses, skilled therein, is admissible as evidence of the unwritten law of a foreign country, as are also printed and published books of reports of decisions of the courts of the foreign country, if proved to be commonly admitted in such courts. Unwritten law are those laws in common-law countries which grew out of custom and which, without having been reduced to writing in the beginning, were handed down by tradition from one generation to another, and accepted by them as the law. Whatever has existed for a long period of time, and is in harmony with the moral judgment of the community is regarded as having the force
G.R. No. L-55960, Nov. 24, 1988. Morey, Rom. L. 223, cited by Francisco, Vicente J., The Revised Rules of Court in the Philippines, Evidence, Vol. VII, Part I, 1973 Ed., p. 695. 81 20 Am. Jur. 371-372, cited by Francisco, loc. cit.
79 80

Art. 26

MARRIAGE Requisites of Marriage

59

of law, and the judicial authority is bound to recognize it as such, even though it has never been expressed in a legal enactment.80 Unwritten foreign laws may be proved by the evidence of witnesses who are competent to testify on the question. Thus, the common law of another state may be proved by the testimony of lawyers, jurists, and others who are shown to have knowledge of such laws. Such evidence is regarded as the best evidence under the circumstances. If the interpretation of the statute and its application to the particular case require knowledge of the judicial decisions and local practice, the face of the statute must be supplemented by evidence from experts familiar with the law of the jurisdiction in question. However, there is authority for the view that the reports of decisions in such jurisdictions are the best evidence of the construction placed upon a specific statute.81 Foreign marriages; exempted from the lex loci celebrationis The Philippines, like most civil law countries, follows the national law theory, meaning, that the national law of the individual regulates his civil status, capacity, condition, his family rights, laws on succession and capacity to succeed.82 Article 15 of the Civil Code is an expression of the law of nationality: 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. To harmonize the law of nationality with the lex loci celebrationis expressed by the first part of the first sentence of Article 26, the second part thereof exempt from the rule of lex loci celebrationis those marriages prohibited under Articles 35(1), (4), (5), and (6), 36, 37 and 38. This is because the Philippine law shall govern all Filipinos wherever they are insofar as their family rights and duties, their status, condition and legal capacity are concerned.83 So that they still cannot marry even if the law of the foreign land permits them to, if under the Philippine law they do not have the legal capacity to marry. Thus, if the Filipino is below 18 years old and he got married in California, United States of America, where
82 Coquia, Jorge R. and Aguiling-Pangalangan, Elizabeth, Conflict of Laws, Cases, Materials and Comments, 1995 Ed., p. 216. 83 See Art. 15, Civil Code. 84 The precursor of this is Van Dorn v. Hon. Romillo, Jr., et al., G.R. No

60

THE LAW ON MARRIAGE

Art. 26

he is eligible to marry, his marriage is null and void for lack of legal capacity to marry because the Philippine law requires a Filipino to be at least 18 years old to get married. It is submitted that, besides Articles 35(1), (4), (5), 36, 37, and 38, Articles 5, 13, 41, 53 in relation to 52, and 40 should be complied with before a Filipino can marry in a foreign land for they all relate to the legal capacity of a Filipino to marry. The divorce recognized in the Philippines The second paragraph of Article 26 is new. Although divorce is not recognized in the Philippines, the second paragraph of the said Article is an exemption.84 However, to be recognized here, the following must concur: 1. The divorce is obtained validly in a foreign country; 2. The foreign spouse was the one who initiated the divorce proceedings, not the Filipino spouse; and 3. The divorce decree dissolves the marriage and enables the foreign spouse to remarry. The alien spouse referred to in the second paragraph of Art. 26 may be a former Filipino citizen who obtained a valid divorce as an alien or when he was no longer a Filipino citizen.85 If the above conditions are all present, then the Filipino spouse can remarry. Justice Sempio-Diy gives the reason: The idea of the amendment is to avoid the absurd situation of a Filipino as being still married to his or her alien spouses, although the latter is no longer married to the Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her national law. The amendment will also solve the problem of many Filipino women who, under the Civil Code, are still considered married to their alien husbands even after the latter have already validly divorced them under their (husbands) national laws and perhaps have already married again.86
L-68470, October 8, 1985; See also Pilapil v. Hon. Ibay-Somera, et al., G.R. No. 80116, June 30, 1989. 85 Vd. Opinion No. 134, S. 1993 of the Secretary of Justice. 86 Sempio-Diy, op. cit., p. 27.

Art. 26

MARRIAGE Requisites of Marriage

61

62

THE LAW ON MARRIAGE

CHAPTER II

MARRIAGES EXEMPT FROM LICENSE REQUIREMENT


Although a valid marriage license is required for the validity of marriage, there are certain circumstances which the law recognizes as meriting an exemption to this requirement. These circumstances can be grouped into: 1. Marriages in articulo mortis; 2. Marriages where one or both contracting parties live in a remote place; 3. Marriages between members of an ethnic minority; and 4. Marriages between common-law spouses living together for at least 5 years. Marriages in articulo mortis Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without the necessity of a marriage license and shall remain valid even if the ailing party subsequently survives. (72a) The above article tells what a marriage in articulo mortis is. In such a marriage the captain or master of a ship or the chief pilot of an airplane can solemnize the marriage between passengers or crew-members, one or both of whom are at the point of death;1 or if the contracting parties are in the zone where there is an on-going military operation, the military commander of the zone, a commis-

Art. 31, The Family Code. 62

Arts. 28-29

MARRIAGE Marriages Exempt from License Requirement

63

sioned officer, can marry them.2 No marriage license is required and the marriage is valid even if the party who was at the point of death at the celebration of the marriage survives.3 Marriages in remote places Art. 28. 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 the necessity of a marriage license. (72a) If a party lives in a place so remote that there is no means of transportation, except by walking, to enable him to appear personally before the local civil registrar to apply for a marriage license, he can marry another without getting a marriage license. It is submitted that even if there is a means of transportation to be able to get to the office of the local civil registrar but such is quite hard to get or is seldom available in the place where the party lives, he is exempt from obtaining a marriage license to marry. Art. 29. In the cases provided for in the two preceding Articles, 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 relationship of the contracting parties and the absence of a legal impediment to the marriage. (72a) When a solemnizing officer solemnized a marriage in articulo mortis or in remote places, he is to submit an affidavit executed before the local civil registrar or a person authorized by law to administer oath that the marriage he solemnized was one in articulo mortis or of remote places and that he took the necessary steps to

2 3

Art. 32, The Family Code. De Loria, et al. v. Felix, en banc, G.R. No. L-9005, June 20, 1958.

64

THE LAW ON MARRIAGE

Arts. 30-31

determine the ages and the relationship of the contracting parties and that he found that they had no legal impediment to enter into the marriage. See duties of the solemnizing officer for further discussion. In marriage in articulo mortis, the solemnizing officer may be a ship captain, a chief pilot, or a military commander who is a commissioned officer, under circumstances obtaining in Art. 31 or Art. 32. Art. 30. The original of the affidavit required in the last preceding Article, 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. (73a) The officer who solemnized a marriage in articulo mortis or of remote places has to send the original affidavit to the local civil registrar of the municipality or city where the marriage was solemnized. If the solemnizing officer is a ship captain, a chief pilot, or a military commander, solemnizing the marriage under Art. 31 or Art. 32, he is still obliged to execute the required affidavit and send it to the local civil registrar of the municipality or city where he solemnized the marriage. What if it is a ship captain who solemnized the marriage in articulo mortis and the vessel was then in the high seas? To what local civil registrar will he be sending his affidavit? When a vessel is in the high seas, he is sailing in international waters. The high seas are not part of any country. The point of reference would be the vessel. And the country of registry of the vessel will be the country where the marriage was solemnized. Thus, if the vessel or ship is of Panamanian registry, the country where the marriage was solemnized was Panama, if Philippine registry, Philippines, if Japanese registry, Japan, etc. Now, suppose the ship or vessel is of Philippine registry, to what office of the local civil registrar should the ship captain send the affidavit? It is submitted that since the capital of the Philippines is Manila, the ship captain should send the affidavit to the office of the local civil registrar of Manila. Art. 31. A marriage 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 sea or the plane is in flight, but also during stopovers at ports of call. (74a)

Arts. 32-33

MARRIAGE Marriages Exempt from License Requirement

65

This is based on practical necessity. One of the contracting parties or both are on the verge of dying and they want to be married before one of them dies. It would defeat the objective of law if the authority of the ship captain or the chief pilot ceases when the ship docks at a port or airplane lands on an airport. See solemnizing officers, formal requisites for further discussion. Art. 32. 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 operation, whether members of the armed forces or civilians. (74a) Again the reason behind this is practical necessity. The place where war or a military operation is going on, the usual officer authorized to solemnize marriages is usually absent. Usually soldiers and rebels or enemies of the state are the ones in the area or place of war or military operation. So that when a man and a woman, one or both of whom are dying, may be victims of the war or conflict between the soldiers and the rebels or enemies of the state, may want to marry each other before one of them dies, one cannot expect a priest, a judge, or a mayor to be present in the area of war or of military operation. For further discussion see solemnizing officers, formal requisites. Marriages between members of an ethnic cultural minority Art. 33. Marriages among Muslims4 or among members of 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. (78a) This article shows respect to the customs and tradition of the Filipino minorities, both religious and cultural, represented by the Muslims and ethnic cultural communities who are the minority in the Philippines where the people are predominantly Christians.

4 The Family Code does not apply to Filipino Muslims. P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, applies to Filipino Muslims.

66

THE LAW ON MARRIAGE

Art. 34

However, even before the Family Code, the Philippine Government has already shown such respect to the Filipino Muslims by enacting Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, which has a set of laws applicable to the persons and family relations of Filipino Muslims, exempting them from the provisions on persons and family relations of the Civil Code of the Philippines. Some of the ethnic cultural minorities are the Aetas, presently living in the mountains of Zambales, Sierra Madre, Panay and Negros; the Tasaday, living in the forests and caves of South Cotabato; the Badjao, a Muslim tribe living along the coastline of the sea from Zamboanga to Sulu; the Ifugaos of the Mountain Province whose rice terraces at Banaue made them famous throughout the world. When a man and a woman belonging to any of those cultural minorities want to marry, they can do so without a marriage license. However, the marriage should be in accordance with the custom or tradition of the ethnic cultural community. When the question arises as to the validity of a marriage between persons of ethnic cultural minority solemnized according to their custom or tradition, the following have to be proved in court: 1. The custom or tradition of ethnic cultural minority on marriage;5 2. The marriage did take place between the couple; and 3. The marriage was solemnized according to the custom or tradition of the ethnic cultural minority. Couple cohabiting for at least 5 years Art. 34. 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 and found no legal impediment to the marriage. (76a)

See Art. 12, Civil Code.

Art. 34

MARRIAGE Marriages Exempt from License Requirement

67

Common-law husband and wife, who have been living together for at least five years, and are without any legal impediment to marry each other, can get legally married without the need for a marriage license. However, before they can get married, they have to state in an affidavit before a person authorized by law to administer oaths, such as a notary public, a public prosecutor, or a judge, the fact that they have been living together as husband and wife for at least five years and have no legal impediment whatever to marry each other. Now, suppose a man and a woman have been living for five years but one of them is married to another from whom he or she has been separated and the marriage has not been annulled or declared null and void from the beginning by any court, can they get married without any marriage license if the first husband or wife had already died a year before their intended marriage? No, they have to get a marriage license if they want to marry. The five-year period has started to run only when the first spouse died. It could not start to run as long as the first spouse was alive for then there was an existing legal impediment for them to get married. This is the ruling in Nial v. Bayadog.6 The Supreme Court explains: . . . 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 preconceived escape ground to nullify their marriage.

6 7

G.R. No. 133778, March 14, 2000, 123 SCAD 58. Jamias v. Rodriguez, 81 Phil. 303, cited by Aquino, Ramon C. & Grio-Aquino,

68

THE LAW ON MARRIAGE

Art. 34

The reason for exempting those living together as husband and wife for at least five years is because the publicity attending a marriage license may discourage such persons from legalizing their status. All inducements for concubinage or illicit relationship should be avoided. It is not easy to keep under control the sexual urge for a long time.7

Carolina C., The Civil Code of the Philippines and Family Code, 1990 Ed., p. 147.

Art. 34

MARRIAGE Marriages Exempt from License Requirement

69

CHAPTER III

VOID and VOIDABLE MARRIAGES


Categories of void marriages Before the advent of the Family Code, the void-ab-initio marriages were classified into: (1) those lacking some of the requisites of marriage,1 (2) incestuous,2 (3) bigamous or polygamous,3 and (4) void by reason of public policy.4 The Family Code, besides changing the contents of the categories, adds two more, that of psychological incapacity and failure to comply with a mandatory provision of the Family Code. Thus, under the Family Code void marriages can be: (1) Those lacking some of the essential or formal elements of marriage (Art. 35); (2) Void due to psychological incapacity of one or both parties (Art. 36); (3) (4) (5) Incestuous (Art. 37); Void by reason of public policy (Art. 38); Bigamous or polygamous (Art. 41); and

(6) Void for non-compliance with a mandatory provision of the Family Code (Art. 53 in relation to Art. 52). It must, however, be kept in mind that the enumeration or listing of void marriages of Art. 35 of the Family Code is not exclusive as it does not exhaust the possible missing requisites of a particular marriage.

Art. Art. 3 Art. 4 Art.


1 2

80(1), (2), (3), Civil Code. 80(5) and Art. 81, Civil Code. 80(4), 1st sentence of Art. 83. 80(6), (7) and Art. 82. 69

70

THE LAW ON MARRIAGE

Art. 35

Void for lack of some requisites of marriage Art. 35. The following marriages shall be 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 a license, except those covered by the preceding Chapter; (4) Those bigamous or polygamous marriages not falling 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. (80a) Nos. 1, 2, 3, and 5 of Article 35 mentioned marriages which are void ab initio for lack of some requisites of marriage, to wit: 1. Those contracted by any party below 18 years old even with the consent of the parents or guardians where applicable ([1], Art. 35, F.C.); 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 ([2], Art. 35, F.C.); 3. Those solemnized without a license, except those exempt from the license requirement ([3], Art. 35, F.C.); and 4. Those contracted through mistake of one contracting party as to the identity of the other ([5], Art. 35, F.C.). Nos. 1 and 4 above are examples of absence of two essential requisites of marriage, namely lack of legal capacity of a party to marry due to age, and lack of consent due to mistaken identity. Nos. 2 and 3 are examples of absence of two formal requisites of marriage, namely lack of authority of the solemnizing officer to marry and absence of a valid marriage license.

Art. 36

MARRIAGE Void and Voidable Marriages

71

Comparison of Art. 35(5), Family Code to Art. 86(1) in relation to Art. 85(4), Civil Code. Paragraph (5) of Art. 35 is an example of a marriage where one party has not really given his/her consent (absence of an essential requisite of marriage). In the Civil Code, specifically Article 86(1) in relation to Art. 85(4), this ground falls under the category of fraud, a ground for the annulment of a marriage. The fraud under the Civil Code provision is an intentional misrepresentation of the identity. But the mistake in the identity of one party by the other in this provision embraces both fraudulent and non-fraudulent representation of identity as the law does not distinguish between the two. However, the result is the same absence of the consent of the party because the consent he gave was to marry somebody who was not actually a party to the marriage. The other party actually taking part in the marriage was not the one to whom he consented to marry. The change by the Family Code on this point is an improvement because it is more accurate to say that there is really no consent at all because the consent given is to marry someone who is not present and taking part in the marriage. Mistake by one party as to the identity of the other refers to the physical identity of the latter, not mistake as to name or personal qualifications. Thus, if Mario represented himself as Ike, his identical twin, in the marriage with Jean, Ikes fiance, and the latter thought Mario as Ike, the marriage is void since Jean gave her consent to marry Ike, not Mario. But if Ike is not the fianc of Jean and Mario courted Jean as Ike and proposed marriage to Jean and Jean married Mario, thinking his name to be Ike, the marriage is valid as there is not mistake as to the identity of the other. Void marriage due to psychological incapacity Art. 36. 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. (n) (as amended by E.O. No. 227, dated July 17, 1987) The Family Code adds a novel ground for a void-from-thebeginning marriage. Justice Sempio-Diy, a member of the Civil

72

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Art. 36

Code Revision Committee which drafted the Family Code, explains psychological incapacity as follows: Psychological incapacity has nothing to do with consent to marriage. A person might have given free and voluntary consent to a marriage (that is, his mind knew what marriage is all about and all the rights and obligations arising therefrom), but his will may not be capable of fulfilling such rights and obligations. Hence, psychological incapacity is not a question of defective consent but a question of fulfillment of a valid consent.5 This new legal provision was taken from paragraph 3 of Canon 1095 of the New Code of Canon Law of the Roman Catholic Church which took effect on November 27, 1983. The Civil Code Revision Committee decided to adopt said paragraph as a ground for declaration of nullity of marriage for the following reasons: 1. As a substitute for divorce since divorce is highly controversial and the Roman Catholic Church would surely and strongly oppose it. So the Committee decided to draw from Canon Law itself a ground that did not conflict with the traditional civil law concept of voidable marriages; 2. As a solution to the problem of church-annulled marriages. There are many marriages that have already been declared as null and void by the Roman Catholic Church but still exist under the civil law. This provision would give many parties to church-annulled marriages a cause of action to have their marriages declared void by the civil courts; 3. As an additional remedy to parties who are imprisoned by a marriage that exists in name only as they have long separated because of the inability of one of them to perform the essential obligations of marriage.6 In Leouel Santos v. Court of Appeals and Bedia-Santos7 the Supreme Court, en banc, in seeking the conceptual framework within which psychological incapacity can be understood, cited explanations thereon by different ecclesiastical authors, one of which is found in

Sempio-Diy, op. cit., p. 37. Sempio-Diy, op. cit., p. 36. 7 G.R. No. 112019, Jan. 4, 1995, 58 SCAD 17, en banc.
5 6

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Canons and Commentaries on Marriage written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck, to wit: This incapacity consists of the following: (a) a true inability to commit oneself to the essentials of marriage . . . This particular type of incapacity consists of a real inability to render what is due by the contract. This could be compared to the incapacity of a farmer to enter into a binding contract to deliver the crops which he cannot possibly reap; (b) this inability to commit oneself must refer to the essential obligations of marriage: the conjugal act, the community life and love, the rendering of mutual help, the procreation and education of offspring; (c) the inability must be tantamount to a psychological abnormality. The mere difficulty of assuming these obligations, which could be overcome by normal effort obviously does not constitute incapacity. The canon contemplates a true psychological disorder which incapacitates a person from giving what is due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987). However, if the marriage is to be declared invalid under this incapacity, it must be proved not only that the person is afflicted by a psychological defect, but that the defect did in fact deprive the person, at the moment of giving consent, of the ability to assume the essential duties of marriage and consequently of the possibility of being bound by these duties. Then it proceeded to define psychological incapacity as follows: . . . the use of the phrase psychological incapacity under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as . . . extreme low intelligence, immaturity, and like circumstances . . . Article 36 of the Family Code cannot be taken and construed independently of, but must stand in conjunction with, existing precepts in our law on marriage. Thus correlated, psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligation to live together, observe love,

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respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychological condition must exist at the time the marriage is celebrated. The Supreme Court also cited the characterization of psychological incapacity by Dr. Gerardo Veloso, former Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch 1) as follows: . . . psychological incapacity must be characterized by (a) gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave or serious such that the party would be incapable of carrying out the ordinary duties required in marriage; it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage; and it must be incurable or, even if it were otherwise, the cure would be beyond the means of the party involved. In his lecture entitled Developments in Civil Law delivered at the Orientation Seminar for Newly Appointed Judges and Executive Judges at Tagaytay City some time in December, 1999,8 Justice Jose C. Vitug, the ponente of the Santos case, gave the judges the conceptual framework of the psychological incapacity that makes a marriage void ab initio, to wit: . . . only four criteria (of the law) are really considered critical in testing the validity of the marriage, to wit: one, the incapacity must be psychological or mental, not physical in nature; two, the psychological incapacity must relate to the inability, not mere refusal or failure, to understand, assume, and discharge the basic marital obligations of living together, observing love, respect and fidelity, and rendering mutual help and support; three, the psychologic condition must exist at the time the marriage

The Lawyers Review, January 31, 2000, Vol. XIV, No. 1, pp. 65-78.

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is contracted although its overt manifestations may occur only thereafter; and four, the mental disorder must be grave or serious and incurable.9 (italics supplied). In Republic of the Philippines v. Court of Appeals and Roridel Olaviano Molina10 the Supreme Court, with Justice Panganiban as the ponente, cited with approval the Santos case and then proceeded to lay down specific guidelines for both bar and bench in the application of Article 36, to wit: (1) 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 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. . . (2) The root cause of the psychological incapacity must be (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts and (d) clearly explained in the decision. Article 36 of the Family Code requires that the incapacity must be psychological not physical, although its manifestation and/or symptoms may be physical. The evidence must convince the court that the parties, or one of them, was mentally or psychically ill to such an extent that the person could not have known the obligations he was assuming, or knowing them, could not have given valid assumption thereof. Although no example of such incapacity need be given here so as not to limit the application of the provision under the principle of ejusdem generis, nevertheless such root cause must be identified as a psychological illness and its incapacitating nature fully explained. Expert evidence may be given by qualified psychiatrists and clinical psychologists.
9

10

Developments in Civil Law, The Lawyers Review, op. cit., p. 67. G.R. No. 108763, Feb. 13, 1997, 79 SCAD 462, en banc.

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(3) The incapacity must be proven to be existing at the time of the celebration of the marriage. The evidence must show that the illness was existing when the parties exchanged their I dos. The manifestation of the illness need not be perceivable at such time, but the illness itself must have attached at such moment, or prior thereto. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. Such incurability may be absolute or even relative only in regard to the other spouse, not necessarily absolutely against everyone of the same sex. Furthermore, such incapacity must be relevant to the assumption of marriage obligations, not necessarily to those not related to marriage, like the exercise of a profession or employment in a job. Hence, a pediatrician may be effective in diagnosing illnesses of children and prescribing medicine to cure them, but may not be psychologically capacitated to procreate, bear and raise his/her own children as an essential obligation of marriage. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. Thus, mild characteriological peculiarities, mood changes, occasional emotional outbursts cannot be accepted as root causes. The illness must be shown as downright incapacity or inability, not a refusal, neglect or difficulty, much less ill will. In other words, there is natal or supervening, disabling factor in the person, an adverse integral element in the personality structure that effectively incapacitates the person from really accepting and thereby complying with the obligations essential to marriage. (6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221 and 225 of the same Code in regard to parents and their children. Such non-complied marital obligation(s) must also be stated in the petition, proven by evidence and included in the text of the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the

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Philippines, while not controlling or decisive, should be given great respect by our courts. It is clear that Article 36 was taken by the Family Code Revision Committee from Canon 1095 of the New Code of Canon Law, which became effective in 1983 and which provides: The following are incapable of contracting marriages: Those who are unable to assume the essential obligations of marriage due to causes of psychological nature. Since the purpose of including such provision in our Family Code is to harmonize our civil laws with the religious faith of our people, it stands to reason that to achieve such harmonization, great persuasive weight should be given to decisions of such appellate tribunal. Ideally subject to our law on evidence what is decreed as canonically invalid should also be decreed civilly void. This is one instance where, in view of the evident source and purpose of the Family Code provision, contemporaneous religious interpretation is to be given persuasive effect. Here, the State and the Church while remaining independent, separate and apart from each other shall walk together in synodal cadence toward the same goal of protecting and cherishing marriage and the family as the inviolable base of the nation. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsels for the state. No decision shall be handed down unless the Solicitor General issues a certification, which will be quoted in the decision, briefly stating therein his reasons for his agreement or opposition, as the case may be, to the petition. The Solicitor General, along with the prosecuting attorney, shall submit to the court such certification within fifteen (15) days from the date the case is deemed submitted for resolution of the court. The Solicitor General shall discharge the equivalent function of the defensor vinculi contemplated under Canon 1095. In the same seminar for the newly appointed judges and executive judges at Tagaytay City, Justice Vitug correlates the Molina

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case to the Santos case as follows: The foregoing guidelines (those given by the Supreme Court in the Molina case) are meant to govern the procedural and evidentiary aspects, more than the substantive part, of the law where only four criteria are really considered critical in testing the validity of marriage, to wit: one, the incapacity must be psychological or mental, not physical in nature; two, the psychological incapacity must relate to the inability, not mere refusal or failure to understand, assume, and discharge the basic marital obligations of living together, observing love, respect and fidelity, and rendering mutual help and support; three, the psychologic condition must exist at the time the marriage is contracted although its overt manifestations may occur only thereafter; and four, the mental disorder must be grave or serious and incurable. In Marcos v. Marcos11 the Supreme Court had an opportunity to clarify the rule it laid down in the Molina case that the root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision. It says that personal medical or psychological examination of respondent is not a requirement for a declaration of psychological incapacity. This means that where the respondent in an action for a declaration of nullity of marriage refuses to undergo psychological tests to determine as to whether he is psychologically incapacitated to marry or not, the psychologist or psychiatrist can go on and determine his psychological capacity to enter into marriage by what the other persons who know him well say about him. The psychological evaluation based on what the other persons say about him, persons who know him well because they live with him or are close friends or relatives of his, can serve as the basis for the psychological or psychiatric evaluation of the respondent who may refuse to personally submit himself to the psychological or psychiatric tests. In such case, the court has to decide as to whether or not the respondent is psychologically incapacitated to marry based on the totality of the evidence presented to, and admitted by, the court. This does not mean that there is no

11

G.R. No. 136490, October 19, 2000, 136 SCAD 713.

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need for medical or psychological examination. The Supreme Court is clear on this point in the Molina that the root cause of the psychological incapacity must be: (a) medically or clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts, and (d) clearly explained in the decision. And Republic v. Dagdag12 affirms this when it ruled that Erlinda (the petitioner in the action for declaration of her marriage as a nullity) failed to comply with guideline No. 2 which requires that the root cause of psychological incapacity must be medically or clinically identified and sufficiently proven by experts, since no psychiatrist or medical doctor testified as to the alleged psychological incapacity of her husband. The Supreme Court quoted with approval, in support of such ruling, a portion of its ruling in Hernandez v. Court of Appeals,13 to wit: Moreover, expert testimony should have been presented to establish the precise cause of private respondents psychological incapacity, if any, in order to show that it existed at the inception of the marriage. The burden of proof to show the nullity of the marriage rests upon petitioner. The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the family as the basic autonomous social institution and marriage as the foundation of the family (Art. II, Sec. 12, Art. XV, Secs. 1-2). Thus, any doubt should be resolved in favor of the validity of the marriage (citing Republic of the Philippines v. Court of Appeals, supra). In Marcos, the Supreme Court also emphasizes the fact that the psychological incapacity must be present before or at the time of the marriage. Where it arises only during the marriage, it cannot be considered the psychological incapacity of Art. 36 and will not serve as a ground to declare the marriage null and void from the beginning. Clinical psychologist as an expert witness; his qualifications Now, what is an expert? Who can the court consider an expert whose evaluation can be considered trustworthy of belief because it can pass the criteria of scientific trustworthiness? A scientific trustworthiness that the court can rely on without any doubt because the scientific criteria of scientific trustworthiness have been
12 13

G.R. No. 109975, February 9, 2001, 143 SCAD 214. 320 SCRA 76 (1999).

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satisfactorily complied with. With respect to clinical psychologists, the Psychological Association of the Philippines, in its Guidelines Regarding Qualifications of Clinical Psychologists, Code of Ethics for Clinical Psychologists, establishes the following educational criteria to qualify as a clinical psychologist, to wit: (1) Ph. D. in Clinical Psychology from a recognized university; (2) A doctorate degree in allied professions with the equivalent of at least five years of full time clinical experience; (3) An M.A. degree in clinical/counselling psychology as major concentration and a practicum in clinical psychology; and (4) an M.A. in general psychology with at least three years of clinical experience and a certification by the PAP (Psychological Association of the Philippines) Board of Examiners for Practicing Psychologists. In short, to be considered a clinical psychologist and competent to evaluate the existence of psychological incapacity to enter into marriage, the expert must have the following qualifications: 1. 2. 3. a Ph. D. degree holder in Clinical Psychology from a recognized university; A doctorate degree in allied professions with the equivalent of at least five years of full time clinical experience; An M.A. degree holder in clinical/counselling psychology as major concentration and a practicum in clinical psychology; and an M.A. degree holder in general psychology with at least three years of clinical experience and a certification by the Board of Examiners of the Psychological Association of the Philippines (PAP) for Practicing Psychologists.

4.

If the so-called expert presented to the court does not have any of the above set of criteria, the Psychological Association of the Philippines cannot accept him or her as an expert whose testimony or psychological evaluation of the existence of psychological incapacity can be trusted. He or she is not competent to so testify. Is there a need for personal psychological examination of both spouses? In an interview by the author with Dr. Roxel A. Apruebo,14 a clinical psychologist who has been conducting psychological evaluation to determine the psychological incapacity of parties to actions

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for nullity of marriage since 1989, he explains why there is no need for a personal or actual psychological examination of a party if one of the parties will submit to a personal psychological examination to determine whether or not he is psychologically capacitated to marry. He says that the psychological examination of the petitioner himself would reveal the characteristics or predisposition of the spouse who has not submitted herself personally to the psychological evaluation by the processes of projection, identification, and introjection. Projection is ascribing to others ones sentiments, wishes, interests, frustrations, disappointments, etc., because of some past experiences of one in relation to a significant other/s. Thus, when Pedro says, Women, they cannot be trusted! (Mga babaeng yan, hindi pagkakatiwalaan!) is an example of projection, probably because of some sad experience with some women. Identification is the process of idolizing a significant other/s by imbibing most of the latters characteristics. A boy who grew up with his mother and has been very close with her may become womanly in his mannerisms and characteristics by the process of identification. A son who talks and acts like his father whom he admires much has undergone identification. Introjection means the tendency to acquire the undesirable traits of significant other/s. It is an unconscious process and is a form of defense mechanism, an unconscious reaction to frustrations, unresolved conflicts and anxiety. A calm and controlled person may acquire the tendency to be hot-headed when in constant company with a significant other for some length of time. Thus, when a loving and affectionate woman is wedded to a temperamental man, the certainty is that in the near future, the woman will also become temperamental. The spouse is a significant other. The psychological evaluation, which consists of psychological testing, would reveal the interpersonal relations between the spouses, revealing the characteristics each spouse has acquired from the other by projection, identification, and introjection. So that when one spouse undergoes psychological evaluation, he mirrors the other spouses personality which consists of characteristics and mannerisms the former may have acquired

14 He is a Ph. D. in Clinical Psychology (summa cum laude) of the Graduate School of the University of Santo Tomas, and an Associate Professorial Lecturer of said Graduate School. 15 Sec. 2. Petition for declaration of absolute nullity of void marriages. (d)

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from the latter by projection, identification, and introjection. It is the experts (clinical psychologist or psychiatrist) who can distinguish which of the characteristics are not acquired and which are acquired from the other spouse. The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-1110-SC) clarifies guidelines no. 2 and no. 8 of Molina The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages clarifies guidelines no. 2 and no. 8 laid down in Molina, namely, (1) the allegation of the root cause of the psychological incapacity in the petition, and (2) the role of the Solicitor General and the prosecutor. Under Sec. 2(d) of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,15 the petition need not allege the root cause of the psychological incapacity, medically or clinically identifying it. It suffices that the petition alleges the complete facts that would show the psychological incapacity of either or both parties. The complete facts are the physical manifestations indicative of the psychological incapacity at the time of the celebration of the marriage. The petition need not contain expert opinion on the psychological incapacity of either or both parties. This means that the petition should contain only formal statements of the ultimate facts of the cause or causes of action, not facts of evidentiary nature whose purpose is to prove the fact or facts in issue. Identifying medically or clinically the root cause of the psychological incapacity in the petition is alleging a fact evidentiary in nature because only a psychiatrist or a clinical psychologist can do that. A lawyer can only allege the facts which show that the spouse concerned has not been complying with his marital obligations and, therefore, psychologically incapacitated, and that such state must

What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. 16 Vd. Rule 6 of the Rules of Court.

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have existed at the time or before the celebration of the marriage. He is not competent to identify the root cause of the psychological incapacity. This is in harmony with the Rule on Pleadings of the Rules of Court.16 This clarification of the Rule also harmonizes procedural law with the confidentiality of the psychological evaluation of the clinical psychologists. Under I B of the Code of Ethics for Clinical Psychologists the Clinical Psychologist is duty-bound to withhold information about any individual who has undergone the psychological evaluation of a clinical psychologist. However, the clarification of the Rule does not affect and cannot affect the doctrine of law set forth in Santos and Molina, where the burden of proof lies on the petitioner and where the psychological incapacity has to be proved by experts. During the trial of the petition for declaration of nullity of marriage the petitioner has still to identify the root cause of the psychological incapacity either medically (by a psychiatrist) or clinically (by a clinical psychologist), must present experts (psychiatrist or clinical psychologist17) to sufficiently prove the psychological incapacity, and the court must clearly explain in the decision why there is or there is no psychological incapacity in either or both spouses. Under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, it is the public prosecutor who carries the burden for the State. In fact, he is to submit a report to the court on whether or not collusion exists between the parties where the court has ordered him to investigate the existence of such collusion either because the respondent has not filed any answer to the petition or because the answer filed does not tender any issue.18 Where he finds collusion between the parties, the court shall set the report for hearing with the comments of the parties which

17 Appendix B, Guidelines Regarding Qualifications of Clinical Psychologists, of the Code of Ethics for Clinical Psychologists, the educational criteria for a clinical psychologist are: (1) Ph. D. in Clinical Psychology from a recognized university; (2) A doctorate degree in allied professions with the equivalent of at least five years of full time clinical experience; (3) An M.A. degree in clinical/counselling psychology as major concentration and a practicum in clinical psychology; and (4) an M.A. in general psychology with at least three years of clinical experience and a certification by the PAP (Psychological Association of the Philippines) Board of Examiners for Practicing Psychologists. 18 Sec. 9(1), Rule on Declaration of Absolute Nullity of Void Marriages and

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should be submitted with the court ten days after they receive the said report.19 The Solicitor Generals duty consists in being consulted by the public prosecutor in making the memorandum after the trial, and in moving for a reconsideration of, and appealing, the judgment if in his opinion the court erred. However, the court trying the petition may order the Solicitor General to file his own memorandum if the case is of significant interest to the State.20 Incestuous marriages Art. 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate: (1) and (2) Between brothers and sisters, whether of the full- or half-blood. (81a) Marriages between a son and a mother or grandmother or great grandmother, or between daughter and father or grandfather or great grandfather, whether they be legitimate or illegitimate, are incestuous. So are marriages between brother and sister, whether of full or half-blood. Void marriage by reason of public policy Art. 38. The following marriages shall be void from the beginning for reasons of public policy: (1) Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; (2) (3) Between step-parents and step-children; Between parents-in-law and children-in-law; Between ascendants and descendants of any degree;

Annulment of Voidable Marriages 19 Sec. 9(2), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages 20 Sec. 18 and Sec. 19(3), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 21 Sempio-Diy, op. cit., p. 43.

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(4)

Between the adopting parent and the adopted child;

(5) Between the surviving spouse of the adopting parent and the adopted child; (6) Between the surviving spouse of the adopted child and the adopter; (7) Between an adopted child and a legitimate child of the adopter; (8) Between adopted children of the same adopter; and (9) Between parties where one, with the intention to marry the other, killed that other persons spouse or his or her own spouse. (82a) Article 38 declares certain marriages taboo between persons related in law or in blood, namely: 1. Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth civil degree; 2. 3. 4. Between step-parents and step-children; Between parents-in-law and children-in-law; Between the adopting parent and the adopted child;

5. Between the surviving spouse of the adopting parent and the adopted child; 6. Between the surviving spouse of the adopted child and the adopter; 7. Between an adopted child and a legitimate child of the adopter; and 8. Between adopted children of the same adopter. Collateral blood relatives within the fourth civil degree Although the Family Code does not consider a marriage between a man and a woman related by blood within the fourth civil degree or first cousins as incestuous, following the trend in other countries, it, however, declares such a marriage null and void ab initio by reason of public policy because of the known deleterious effects arising therefrom. Scientific researches and experiences show that marriages between first cousins or other close blood relatives usually result in degenerate children or children born with organic defects like weak or retarded minds, deafness or deaf-mutism, near-

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sightedness, etc., which births, if occurring to a great extent, would weaken the race.21 Determining the civil degree between blood relatives To determine the civil degree between ascendants and descendants, start counting 1 with the nearest ascendant to the concerned descendant, going up. For example, the civil degree between a granddaughter and her maternal grandmother can be known by starting to count 1 with the mother, child of the grandmother, and 2 with the grandmother. Thus, the civil degree between the granddaughter and her maternal grandmother is in the second civil degree. GD P (1) GM (2). See illustration below Grandmother (2)

Mother (1)

Daughter To determine the civil degree between collateral relatives by blood, start counting 1 with the nearest ascendant of the relative concerned going to the common ascendant and then down to the descendant and then sideways to the other relative concerned. For example, to determine the civil degree between first cousins, lets say, Paulo and Joanna, we start with Paulos parent, either the mother or father, who is a brother or sister of the parent of Joanna, as 1, then 2 is the parents of Paulos parent, then down to the parent of Joanna as 3 and then to Joanna as 4. The blood relationship between Paulo and Joanna is in the fourth civil degree. Paulo P (1) GP (2) Joannas P (3) Joanna (4). See illustration below: Parents (2)

(1) Mother of Paolo

Sisters

Mother of Joanna (3)

22

Sempio-Diy, op. cit., p. 45.

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Paolo

First Cousins

Joanna (4)

If Paulo and Joanna are second cousins, then we go to their common ascendant. No. 1 is Paulos parent, who is the first cousin of one of the parents of Joanna, 2 is the parent of Paulos parent, who may either be the grandfather or grandmother of Paulo and a brother or sister of the grandparent of Joanna, 3 is the parents of the grandparent of Paulo, 4 is the parent of Joannas parent, the grandparent of Joanna, 5 is Joannas parent, and 6 is Joanna. Paulo and Joanna are in the sixth civil degree if they are second cousins. Paulo P (1) GP (2) GGP (3) Joannas GP (4) Joannas P (5) Joanna (6). See illustration below: Great Grandparents (3)

(2) Grandfather of Paolo

Brothers

Grandfather of Joanna (4)

(1)

Mother of Paolo

1st Cousins

Mother of Joanna (5)

Paolo

2nd Cousins

Joanna (6)

Relationships not impediments to marriage The following relationships are not impediments to marriage:22 (1) (2) (3) (4) (5) wife; (6) binage. Parties who have been convicted of adultery or concuBrother-in-law and sister-in-law; Stepbrother and stepsister; Guardian and ward; Adopted and illegitimate child of the adopter; Adopted son of the husband and adopted daughter of the

23

Cf. Arts. 149 and 150, Family Code.

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Relationships impediments to marriage 1. Collateral relatives, legitimate/illegitimate, within the 4th civil degree; 2. Parent-child: a) b) c) d) e) 3. a) b) step-parent and step-child; parent-in-law and child-in-law; adopter and adopted; surviving spouse of adopter and adopted; adopter and surviving spouse of adopted; legitimate child and adopted adopted adopted

Sibling sibling:

Family relations To preserve the sanctity of the family and the respect for each member thereof, the law, in keeping with the age-old traditions and customs of the Filipino families, makes marriage between them null and void from the beginning. Included in the family circle are the step-parent and step-child, parent-in-law and child-in-law, adopting parent and adopted child relationships.23 Thus, marriages between them are declared by law null and void from the beginning. And because the adopted is considered legally as a child of the adopting parent, there can be no valid marriage between the surviving spouse of the adopting parent and the adopted child, the surviving spouse of the adopted child and the adopting parent, the legitimate child of the adopting parent and the adopted, and between the adopted children. Killing a spouse by one party Under Article 38(9), where one of the contracting parties killed the spouse of the other or his own spouse to marry the other, the marriage between them is void ab initio. This is a substantial change from Article 80(6) of the Civil Code where a conviction of parricide, if the victim was his own spouse, or of homicide or murder, if the victim was the spouse of the other, was required to disqualify the killer from marrying the other party. Under Article 38(9) of the Family Code the killing can be proved in a civil case. In other words, the quantum of evidence required to disqualify the killer from marrying
24

J. Vitug aired a warning on R.A. No. 8533 in his Developments in Civil Law:

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under the present law is only one of preponderance of evidence, unlike in Article 80(6) of the Civil Code where the quantum of evidence is one of proof beyond reasonable doubt. Comparison between Art. 38(9) of the Family Code and Art. 80(6) of the Civil Code Article 38(9) of the Family Code reads: The following marriages shall be void from the beginning for reasons of public policy: ... Between parties where one, with the intention to marry the other, killed that other persons spouse or his or her own spouse. Article 80(6) of the Civil Code reads: The following marriages shall be void from the beginning: ... Those where one or both contracting parties have been found guilty of the killing of the spouse of either of them . . . As stated above, Article 38(9) requires only preponderance of evidence while Article 80(6) requires proof beyond reasonable doubt. Another difference is in the wordings: Article 38(9) explicitly states that the killing must be to marry the other party; Article 80(6) does not explicitly state it. Imprescriptibility of actions for declaration of nullity Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. (As amended by R.A. 8533, approved Feb. 23, 1998) Under Article 39, the action to declare the absolute nullity of a void marriage does not prescribe except for marriages under Article 36 celebrated before the effectivity of the Family Code. The action to declare them an absolute nullity shall prescribe in ten years from the effectivity of the Family Code. However, R.A. No. 8533 (Feb. 23,

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Arts. 39-40

1998) abolished the prescriptive period so that the law now is that all marriages which are void ab initio by reason of any legal grounds under the Family Code can be brought to court for a judicial declaration of their nullity without any time limitation, i.e., during the lifetime of both spouses, irrespective of whether they are celebrated before or after the effectivity of the Family Code.24 Bigamous/polygamous marriages Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n) Remarrying without complying with Art. 40 is bigamous Article 40 requires a married person to obtain a final judicial declaration of nullity of his subsisting marriage if he intends to marry another. If he remarries without a final judicial decree of nullity of his first marriage, his second marriage is null and void ab initio. The Supreme Court even went to the extent of declaring his second marriage bigamous and affirmed the conviction of the lower court which found the accused guilty of bigamy inspite of the fact that the Regional Trial Court of Cebu had already declared his first marriage null and void ab initio due to psychological incapacity of the first wife. The basis of the conviction was the fact that the accused remarried when his first marriage was still subsisting, the accused not having yet obtained a final judicial decree of nullity of his first marriage.25 Effect of Art. 40 on void marriages as defense against bigamy

Article 39 implicitly allows within 10-year prescriptive period an action to declare null and void, on the ground of psychological incapacity, a marriage celebrated prior to the effectivity of the Family Code. Without this provision, it would be doubtful to assume, despite Article 256 of the Family Code providing for its retroactivity, that the law has intended to hold as void any such marriage validly contracted prior to 03 August 1988. I wonder if Congress has realized this implication in deleting the provision by enacting Republic Act 8533. However, under Sec. 2(c) of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the Supreme Court has definitely stated that an action or defense for the declaration of absolute nullity of void marriage shall not prescribe. 25 Mercado v. Tan, G.R. No. 137110, August 1, 2000, 131 SCAD 128. 26 Supra.

Art. 40

MARRIAGE Void and Voidable Marriages

91

With the passage of the Family Code, the defense of a void marriage without a final judicial decree of nullity against the criminal charge of bigamy no longer holds. A person previously married has to obtain first a final judicial decree of the nullity of his marriage before he can enter into a second marriage. Without the final judicial decree, he has no legal capacity to enter into marriage. If he does so, his second marriage is not only void from the beginning but he also commits the crime of bigamy. This is the rule the Supreme Court laid down in Mercado v. Tan.26 It would seem then that without a final judicial decree holding a marriage null and void ab initio, the marriage, which may be void under the law, is deemed to be valid. Mercado has erased the traditional distinction between voidable and void marriages. One can glean this from what the Supreme Court said in the above case: In view of this provision (Art. 40), Domingo stressed that a final judgment declaring such marriage void is necessary. . . . In this light, the statutory mooring of the ruling in Mendoza and Aragon that there is no need for a judicial declaration of nullity of a void marriage has been cast aside by Article 40 of the Family Code. Such declaration is now necessary before one can contract a second marriage. Absent that declaration, we hold that one may be charged with and convicted of bigamy. This may also be the practical alternative to prevent a spouse from judging for himself that his marriage is null and void and, therefore, he can contract another marriage without going to the courts to validate his observation. As the Supreme Court puts it in the Domingo case: As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect and nothing more. Were this so, this inviolable social institution would be reduced to a mockery and
27 28

G.R. No. 104818, Sept. 17, 1993, 44 SCAD 955. Vide Ramirez, Vicente, Jr., C., Clarifying the Rule for the Need of Judicial

92

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Art. 40

would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be diverse and far ranging as human ingenuity and fancy could conceive. For such a socially significant institution, an official state pronounce-ment through the courts, and nothing less, will satisfy the exacting norms of society. However, it is submitted that bigamous marriages contracted prior to the enactment of the Family Code can still put up the defense of void first marriage in criminal prosecution for bigamy. This is because the jurisprudence prior to the effectivity of the Family Code allows such a defense. Petition for nullity without intent to remarry However, the article does not bar a married person at all to seek a judicial decree to declare his subsisting marriage null and void from the beginning even if he does not intend to remarry. This is the ruling of the Supreme Court in Domingo v. Court of Appeals, et al.27 In this case the petitioner was insisting that the private respondent, Delia Soledad Avera, could file a suit for a declaration of nullity of their void marriage only if she intended to remarry. Otherwise, she had no cause of action for her suit and, hence, such suit should be dismissed. The Supreme Court, through Justice Romero, rejected the petitioners argument, ruling that: . . . Article 40 as finally formulated, including the significant clause, denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between erstwhile spouses, as well as an action for custody and support of their common children and the delivery of the latters presumptive legitimes. In such cases, evidence needed must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. These need not be limited solely to an earlier final judgment of
Decree of Nullity of Void Marriages, The Lawyers Review, Vol. XIV, No. 5, May 31, 2000, p. 7.

Art. 40

MARRIAGE Void and Voidable Marriages

93

a court declaring such previous marriage void. Hence, in the instance where a party who has previously contracted a marriage which remains subsisting desires to enter into another marriage which is legally unassailable, he is required by law to prove that the previous one was an absolute nullity. But this he may do so on the basis solely of a final judgment declaring such previous marriage void (underlining supplied). The need for judicial decree in void marriages In the same case, the Supreme Court, in the concurring opinion of Justice Vitug, also ruled that void marriages are inexistent from the very beginning and . . . no judicial decree is required to establish their nullity. The exception is when one wants to remarry, then he has to obtain a final judicial decree of nullity of his previous marriage. His failure to do so will make his second marriage void from the beginning. In Domingo, the Supreme Court went through the following cases in resolving as to whether or not there is a need for a judicial declaration of nullity of a void marriage, namely: People v. Aragon, People v. Mendoza, Gomez v. Lipana, Vda. de Consuegra v. GSIS, Tolentino v. Paras, and Wiegel v. Sempio-Diy. It is the impression of the Supreme Court that those cases manifest a see-saw in the Court as regards the rule that there is a need for a judicial declaration of nullity of void marriages. But with all due respect, there has actually been no such see-saw. In reality, those cases mentioned in Domingo, with the exception of Wiegel, have unfolded the different legal aspects or consequences coming from void marriages different in each of their particular or individual set of circumstances. But all of them, with the exception of Wiegel, agree that where a marriage is null and void ab initio there is no need for a judicial declaration of nullity. Each case describes a particular set of circumstances which the Supreme Court, with the exception of Wiegel, ably decided.28 In Mendoza and Aragon, the doctrine laid down by the Supreme Court is that in bigamy cases the accused can put up the defense of his or her first marriage being void from the beginning even if there had been no judicial declaration of its nullity for no judicial decree is necessary to establish the invalidity of a void marriage in contradistinction to that of a voidable marriage. In Lipana and Consuegra, the doctrine is that a bigamous mar-

94

THE LAW ON MARRIAGE

Art. 40

riage which one party contracted in good faith, although void from the beginning even without any judicial declaration of its nullity, produces a conjugal partnership of gains with civil effects emanating therefrom as if the bigamous marriage were valid, unless there had been a judicial declaration of nullity of said bigamous marriage. These effects the Supreme Court recognized in the Domingo case when Justice Vitug, in his concurring opinion, wrote: A void marriage, even without its being judicially declared a nullity, albeit the preferability for, and justiciability (fully discussed in the majority opinion) of, such a declaration, will not give it the status or the consequences of a valid marriage, saving only specific instances where certain effects of a valid marriage can still flow (from) the void marriage (underlining supplied). The principle of law in Tolentino is that there is no need for a judicial declaration of nullity of a bigamous marriage where there has already been a judicial declaration that the second marriage is bigamous as determined by the trial court which found the accused guilty of bigamy as charged. Wiegel is a deviation from the jurisprudence. The doctrine of law it established was that a void marriage could not be attacked collaterally. So that the Supreme Court refused to allow the petitioner (respondent in the petition for the declaration of nullity of marriage in the trial court) to present evidence to show that her first marriage was void ab initio as her husband by the first marriage was already validly married to another when it took place. The Supreme Court held that she should have first had such marriage judicially declared a nullity before she married the private respondent. When she did not do that, she could not validly enter into any subsequent marriage even if her first marriage was void. This ruling clearly goes against the jurisprudence which allows a collateral attack against void marriages. And being a later decision of the Supreme Court in a division, it cannot modify or reverse the doctrines established in Mendoza, Aragon, Lipana, Consuegra, and Tolentino. This is because under the Constitution, a doctrine or principle of law in a decision rendered by the Supreme Court en banc or in a division cannot be
Sec. 4(3), Art. VIII, 1987 Constitution and Sec. 2(3), Art. X, 1973 Constitution. Reyes, Luis B., The Revised Penal Code, Bk. II, 12th Ed., p. 907. 31 Vide Domingo v. Court of Appeals, et al., supra.
29 30

Art. 41

MARRIAGE Void and Voidable Marriages

95

modified or reversed except by the same Court sitting en banc.29 Art. 41. 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 Article 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. (83a) Article 41 describes what a bigamous marriage is. It is one where one or both of the contracting parties have a subsisting and undissolved marriage when they entered into the second marriage which could have been valid were it not for the subsisting first marriage. Polygamous marriage has the same meaning as bigamous only that, literally, the marriages contracted are more than two. Prior to the enactment of the Family Code, the jurisprudence is that a void first marriage is a defense against the charge of bigamy, a voidable marriage is not.30 A person charged of bigamy can put up the defense that his first marriage is void ab initio. To free oneself of the charge of bigamy, the voidable marriage must first be declared annulled by a court of competent jurisdiction before marriage. However, with the enactment of the Family Code, the distinction between void and voidable marriage as a defense against the charge of bigamy has disappeared. This is because Art. 40 of the Family Code requires a final judicial declaration of the first marriage as null and void ab initio before the person concerned can enter into a valid second marriage.31 This is the doctrine in Mercado v. Tan,32 which is now the prevailing one, since it is the first case where the Supreme Court has construed the effect of Article 40 of the Family

32

Supra.

96

THE LAW ON MARRIAGE

Art. 41

Code on the legal capacity of a person with a prior subsisting marriage who wants to remarry. Not bigamous under Art. 41 Under Article 41, a previously married person can contract marriage for the second time validly under the following conditions: 1. His spouse has been absent for four consecutive years. In case of disappearance where there was danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two consecutive years suffices; 2. He has a well-founded belief that the absent spouse is already dead; and 3. He has obtained a judicial declaration of the presumptive death of the absent spouse. Article 391 of the Civil Code provides: The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. To obtain a decree of presumptive death, the following must concur: 1. The absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article

33

Republic of the Philippines v. Gregorio Nolasco, G.R. No. 94053, March 17, Supra.

1993.
34

Art. 41

MARRIAGE Void and Voidable Marriages

97

391, Civil Code; 2. The present spouse has a well-founded belief that the absentee is dead; and 3. The present spouse files a summary proceeding for the declaration of presumptive death of the absentee.33 Well-founded belief construed The Supreme Court had an opportunity to construe wellfounded belief in Art. 41 for the first time after the enactment of the Family Code in Republic of the Philippines v. Gregorio Nolasco.34 In construing and applying well-founded belief, the Supreme Court sought guidance from The United States v. Macario Biasbas:35 United States v. Biasbas is instructive as to degree of diligence required in searching for a missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set up the defense of good faith belief that his first wife had already died. The Court held that defendant had not exercised due diligence to ascertain the whereabouts of his first wife, noting that: While the defendant testified that he made inquiries concerning the whereabouts of his wife, he fails to state from whom he made such inquiries. He did not even write to the parents of his first wife, who lived in the Province of Pampanga, for the purpose of securing information concerning her whereabouts. He admits that he had a suspicion only that his first wife was dead. He admits that the only basis of his suspicion was the fact that she had been absent . . . In short, Biasbas had not exercised the due diligence called for by the circumstances of his particular case. Hence, his belief that his wife was already dead due to her absence was not based on good faith.

G.R. No. 8381, August 14, 1913. G.R. No. 10533, November 11, 1915. 37 Adm. Matter No. MTJ-92706, March 29, 1995, 60 SCAD 119, en banc. 38 G.R. No. 5184, August 17, 1909. 39 G.R. No. 133778, March 14, 2000.
35 36

98

THE LAW ON MARRIAGE

Art. 41

With Biasbas as its guide, the Supreme Court went over the evidence presented by petitioner Nolasco: the investigation allegedly conducted by respondent in his attempt to ascertain Janet Monica Parkers whereabouts is too sketchy to form the basis of a reasonable or well-founded belief that she was already dead; when he arrived in San Jose, Antique, he left for London, a vast city of many millions of inhabitants, as a seaman to look for his wife there instead of seeking the help of local authorities or of the British Embassy; he confused London for Liverpool and this casts doubts on his supposed efforts to locate his wife in England; the claim of Nolasco that Janet Monica declined to give any information as to her personal background even after she had married respondent is too convenient an excuse to justify his failure to locate her; his assertion that he had inquired from their friends of her whereabouts cannot be given much credence considering that Nolasco did not identify those friends; his testimony that he immediately cut short his employment contract to return to San Jose upon being informed of his wifes departure from their conjugal dwelling by a letter from his mother but he failed to explain the delay of nine months, from January to November, 1983, before arriving at San Jose; Nolascos failure to try to ask help from the police and other authorities in London and Liverpool in his effort to find his wife. The Supreme Court then concluded: The circumstances of Janet Monicas departure and respondents subsequent behavior make it difficult to regard the claimed belief that Janet Monica was dead a well-founded belief. An example of what constitutes reasonable and well-founded belief that a spouse is dead due to absence of seven consecutive years under Article 390 of the Civil Code is found in The United States v. Dionisio Enriquez,36 where the Supreme Court, en banc, acquitted Enriquez of the charge of bigamy because of his belief that his first wife, who was missing from their home for more than seven years, was well-founded, consisting of his persistent and diligent search for her. They were living in Orion, Bataan, and the accused left their house there for Laguna in 1895 because of his work as a postal employee. He could not return to Orion because of the revolution of 1896 to 1898. He was able to return to Orion only in 1901 and there found his wife missing. It was only in 1905 that Dionisio contracted his second marriage or 10 years from the last time he saw his first wife and only after persistent and diligent search for his missing

Art. 41

MARRIAGE Void and Voidable Marriages

99

first wife which proved fruitless. Here is how the Supreme Court appreciated the evidence in the case: The trial court recognized that the defendant, when he contracted his second marriage with Joaquina Trajano, acted on the reasonable and well-founded belief that his first wife, Juliana Marcelo, was dead, in view of the fact that for 10 years he had no news whatever of her whereabouts and in view of the fruitless result of his endeavors to find her. In short, the exercise of due diligence called for under the circumstances was what led Dionisio to believe that his first wife, who had been missing for more than 10 years, was already dead. The Supreme Court categorized Dionisios belief as reasonable and well-founded. Thus, when he contracted his second marriage, he did so in good faith. Well-founded, therefore, is equivalent to reasonable. And a well-founded belief means that the belief is acquired by the exercise of the due diligence required by the particular circumstances of the case. The failure to exercise the due diligence called for by the circumstances of a particular case means that any belief resulting therefrom falls short of the statutory and jurisprudential requirements and, hence, is not well-founded. A careful perusal of Biasbas and Enriquez will readily reveal that good or bad faith is necessarily connected with reasonable and well-founded belief. Where there is reasonable and well-founded belief, there is necessarily good faith. Absence of reasonable and well-founded belief means that the party concerned contracted the second marriage in bad faith. Effect of reappearance of absent spouse Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
40

Sec. 2. Petition for declaration of absolute nullity of void marriages. (a)

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THE LAW ON MARRIAGE

Arts. 42-43

residence of the parties to the subsequent marriage at the instance of any interested person with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such a fact is disputed. (n) When the absent spouse reappears at any time after the spouse present had remarried, the second marriage remains until the reappearing spouse or any interested person shall have his affidavit of reappearance recorded with the office of the local civil registrar where the parties of the second marriage reside. The second marriage is automatically terminated upon such recording, except when there is a judgment either annulling the first marriage or declaring it void ab initio. However, the spouse present may contest in court that the person who claims to be his spouse is not actually what she claims to be. The affidavit of reappearance must contain not only the fact of the reappearance but also the circumstances surrounding the reappearance. Effects of the termination of the second marriage by reappearance Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding; (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the com-munity property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith,

Art. 43

MARRIAGE Void and Voidable Marriages

101

such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Article 43 gives the consequences of the termination of the second marriage by the reappearance of the first spouse: 1. The children of the subsequent marriage conceived prior to the termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding; 2. The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage, or in default of children, the innocent spouse; 3. Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; 4. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and 5. The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. Effect of bad faith of both spouses Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dis-

102

THE LAW ON MARRIAGE

Art. 44

positions made by one in favor of the other are revoked by operation of law. (n) Art. 44 contemplates a situation where both spouses to the second marriage acted in bad faith. If such is the case, the second marriage is void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law (ipso jure). When is there bad faith in contracting a marriage? An examination of the cases constituting the jurisprudence on the matter reveals that there are two kinds of bad faith in contracting marriage. One is deliberate or intentional, with the intent to deceive as shown in Atienza v. Brillantes, Jr.37 where the respondent, then the presiding judge of Metropolitan Trial Court of Manila, Branch 20, was dismissed from the service with forfeiture of all leave and retirement benefits and barred from any re-appointment to any government agency or government-owned corporation. The cause was his bad faith in contracting marriage with one Zenaida Ongkiko. Here is how the Supreme Court described the bad faith of Judge Brillantes, Jr.: Respondent passed the Bar examinations in 1962 and was admitted to the practice of law in 1963. At the time he went through the two marriage ceremonies with Ongkiko, he was already a lawyer. Yet, he never secured any marriage license. Any law student would know that a marriage license is necessary before one can get married. Respondent was given an opportunity to correct the flaw in his first marriage when he and Ongkiko were married the second time. His failure to secure a marriage license on these two occasions betrays his sinister motives and bad faith. The other kind of bad faith consists of the lack of the exercise of due diligence called for by the particular circumstances of the case. This is illustrated in United States v. Platon Ibaez,38 where the Supreme Court affirmed the conviction of Platon of the crime of bigamy and dismissed his defense that when he married the second time he believed that his first wife was already dead, ruling that his bad faith was shown when he did not exercise due and necessary
A petition for declaration of absolute nullity of void marriage may be filed solely by

Art. 44

MARRIAGE Void and Voidable Marriages

103

diligence in determining whether his wife was still living or not. The due and necessary diligence should have consisted of Platon inquiring from the relatives of his first wife, the parish priest of the town where his first wife was residing, and the municipal secretary who kept a record of the burials that took place in the town, as to whether or not his first wife was still living. Platon did not do any of those. Void marriages due to non-compliance with a mandatory statutory provision Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. Article 53 is new and not found in the Civil Code. Under this provision, the party concerned is disqualified from remarrying until he shall have complied with the provisions of Article 52. The parties have also the duty to record or register the judgment of annulment or absolute nullity of marriage in the local civil registrar where they got married, and the partition and distribution of their properties, the delivery of their childrens presumptive legitimes, in the appropriate registries of property where the properties to be partitioned and distributed are located. If they do not comply with the provisions of Art. 52, two effects will arise, namely: 1. Third persons will not be affected by the judgment of annulment or of absolute nullity of the marriage with all its legal consequences, the partition and distribution of the properties of the former spouses, and the delivery of the childrens presumptive legitimes, and 2. again. The former spouses shall have no legal capacity to marry

the husband or the wife. (n) 41 (c) An action or defense for the declaration of absolute nullity of void mar-

104

THE LAW ON MARRIAGE

Art. 44

When should the spouses comply with Article 52? Although the law does not specify when the former spouses are to comply with Article 52, one can infer that it should be after compliance with Article 102, if the property regime is absolute community of property, or Article 129, if the property regime is conjugal partnership of gains. This is because there can be partition and distribution of the properties of the former spouses only in marriages which require liquidation. There can be no liquidation in a marriage whose property regime is separation of property. If the property regime governing the marriage of the former spouses concerned is separation of property, then their duties consist of recording the final judgment of annulment or declaration of nullity of marriage in the local civil registry where they got married and of recording the delivery of the presumptive legitimes to their common children in the registry of deeds where the legitimes are located. And such duties have to be complied with upon the finality of the judgment of annulment or declaration of nullity of marriage, whichever is applicable. When it is time for the former spouses to perform what is set forth in Article 52 and they do not do so, they lose their legal capacity to marry again by express provision of Article 53. They will re-acquire their legal capacity to marry only upon compliance with Article 52. Who can, when to, file petition for nullity of marriage It is obvious that any of the contracting parties can file an action for the declaration of nullity of marriage. Likewise, the spouse of the first marriage can question the validity of the second marriage of his spouse. But can a child of the first marriage question such validity? Can he do so even after the death of his father, one of the contracting parties of the second marriage? The Supreme Court in Nial v. Bayadog39 answers both questions in the affirmative. Although the Family Code is silent as to who can file an action to declare a marriage null and void ab initio, it rules in said case that any proper interested party can question the validity of a marriage void ab initio. This is because the effect of a void marriage, so far as concerns the conferring of legal rights upon the parties, is as though no marriage had ever taken place. And therefore, being good for no legal purpose, its invalidity can be maintained in any proceeding in which the fact of marriage may be material, either direct or collateral, in any civil court between any parties at any time, whether before or after the death of either or

Art. 44

MARRIAGE Void and Voidable Marriages

105

both the husband and the wife, and upon mere proof of the facts rendering such marriage void, it will be disregarded or treated as non-existent by the courts. The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages has seemingly modified the doctrine of law laid down in Bayadog. Under Sec. 2(a)40 of the Rule, a petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. Sec. 2(c)41 states that an action or defense for declaration of absolute nullity of void marriage shall not prescribe. Correlating the two provisions of the Rule, it means that only the spouses can file the petition during his or her lifetime. But the Rule has not modified Bayadog. Rather it has clarified it. Correlating Bayadog and the Rule, the procedure now is that during the lifetime of the spouses concerned, only they can file the petition to declare either their marriage or the marriage of one spouse to another null and void ab initio. However, upon the death of one or both spouses of either marriage any proper interested party can still question the validity or invalidity of the marriage concerned where such validity or invalidity may be material, either direct or collateral, in any action. This is because substantive law cannot be amended by procedural rules,42 and rules of procedure are provisions prescribing the method by which substantive rights may be enforced in courts of justice.43 Modifications introduced by the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages introduces also some modifications in the procedure of declaration of nullity of marriage and annulment cases, namely: regarding the social worker of the court, the distinction between judgment granting the petition and the decree of absolute nullity or annulment of marriage, the registration of the decree of absolute nullity or of annulment of marriage, the

riage shall not prescribe. 42 Reyes v. Vda. de Luz, G.R. No. L-3238, April 27, 1951. 43 Primicias v. Ocampo, et al., G.R. No. L-6120, June 30, 1963; Philippine National Bank v. Asuncion, et al., G.R. No. L-46095, Nov. 23, 1977; Sec. 5(5), Art. VIII, Constitution. 44 Sec. 10, Rule on Declaration of Absolute Nullity of Void Marriages and An-

106

THE LAW ON MARRIAGE

Art. 44

publication of said decree, and the effect of death of either or both parties on the petition. In cases of declaration of nullity or of annulment of marriage, the court may require its social worker to conduct a case study and submit the corresponding report at least three days before the pretrial conference.44 Under Sec. 19(1) of the Rule, if the court renders a decision granting the petition, it shall declare in said decision that it shall issue the decree of absolute nullity or of annulment of marriage only after the parties shall have complied with articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. Such requirement effectively distinguishes the judicial decision from the judicial decree of absolute nullity or of annulment of marriage. A judicial decision follows after the trial when the court declares that the case is deemed submitted for decision after all the parties have submitted their respective evidence and the court has admitted them. It may be in favor of the petition or may be against the petition. But under the Rule, such decision is not yet the decree of absolute nullity or of annulment of marriage. But for the court to issue the decree of absolute nullity or of annulment of marriage, the following have to be complied with: 1. Registration of the entry of judgment granting the petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; Registration of the approved petition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located; and The delivery of the childrens presumptive legitimes in cash, property, or sound securities.45

2.

3.

The petitioner, who is able to obtain a favorable judgment, has

nulment of Voidable Marriages. 45 Sec. 22(a), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 46 Sec. 23(a), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 47 Sec. 23(b), Rule on Declaration of Absolute Nullity of Void Marriages and

Art. 44

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to register the decree of nullity or of annulment of marriage within thirty days from receipt thereof with the Civil Registry where the marriage was registered, in the Civil Registry where the Family Court is located, and in the National Census and Statistics Office.46 Where the service of summons on the respondent was made by publication, the petitioner has to cause the publication of the decree of nullity or of annulment of marriage once in a newspaper of general circulation.47 The registered decree of nullity or of annulment is the best evidence to prove the declaration of nullity or of annulment of marriage and shall serve as notice to third persons concerning the properties of the petitioner and the respon-dent as well as the properties or presumptive legitimes delivered to the common children.48 If a party dies at any stage of the proceedings but before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of the estate in proper proceedings in the regular courts. If a party dies after the entry of judgment, it shall be binding on the parties and their successors in interest in the settlement of the estate in the regular courts. Grounds for annulment of marriage Art. 45. A marriage may be annulled for any of the following causes, existing at the time of marriage: (1) That the party in whose behalf it is 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; (2) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other
Annulment of Voidable Marriages. 48 Sec. 23(c), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 49 Sempio-Diy, op. cit., p. 55 and Paras, op. cit., p. 424. 50 Memorandum submitted to the Joint Committee on Codification of the Congress, taken from Tolentino, Arturo, M., Jurisprudence and Commentaries on the Civil Code of the Philippines, Vol. 1, 1974 ed., pp. 263-264. 51 Vide. Sempio-Diy, loc. cit.

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as husband and wife; (3) That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife; (4) That the consent of 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; (5) That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or (6) That either party was afflicted with a sexually transmissible disease found to be serious and appears to be incurable. (85a) Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude; (2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of a sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a) Article 45 enumerates the grounds for an annulment of a marriage, namely: 1. 2. Lack of parental or guardians consent; Unsound mind;

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3. sent; 4. 5. 6. disease.

Fraud in obtaining consent; Force, intimidation or undue influence in obtaining conSexual impotency with respect to the spouse; and Serious and apparently incurable sexually transmissible

Art. 45 compared to Art. 85 of the Civil Code Article 45, in repealing Article 85 of the Civil Code, introduces the following changes: 1. The marriageable age is now 18 years old for both the man and the woman (under Article 54 of the Civil Code, 16 years for the man and 14 years old for the woman); 2. Adds undue influence to force and intimidation; and 3. Adds sexually transmissible disease found to be serious and appears incurable as a ground for annulment of marriage. Grounds for annulment: Lack of parental or guardians consent The first ground for annulling a marriage is found in No. 1 of Art. 45: That the party in whose behalf it is 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. When one or both contracting parties are 18 up to 20 years old and have not been emancipated from parental authority by previous marriage, they need the consent of their parents or, in the absence of the latter, of their guardian or whoever has substitute parental authority over them for their marriage to be valid. The lack of such consent makes their marriage voidable (correlating Article 45[1] and Article 14). This means that the parents or, in their absence, the guardian or whoever has substitute parental authority over

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the party concerned, must give their or his consent to the marriage of the party over whom they or he has parental authority for the marriage to be valid. When the consent is not given and somehow the parties are able to get the marriage license and get married, their marriage can be annulled by either the parents or guardian or whoever has legal charge over the party concerned or the party who is not able to get the parental consent. The parents or guardian or the person having legal charge over the party concerned has to file the action for annulment before the latter reach the age of 21. If the party concerned would like to file the annulment, he must do so within five years after reaching 21 years old and must not have freely cohabited with the other after reaching 21 years. Grounds for annulment: Lack of parental consent; ratification of marriage without parental consent Under Article 45(1), the party who got married without parental consent can ratify the marriage by freely cohabiting with the other party after reaching the age of 21. Cohabiting means living together as husband and wife. May the parents or guardian or the person having legal charge ratify the marriage to which they or he did not give their or his consent by giving such consent subsequent to the celebration of the marriage? Justices Sempio-Diy and Paras answer in the negative.49 Justice Paras gives the reason that this is not provided for under the law. Had this been an ordinary contract, and not a social institution, the answer would have been different. The Code Commission (the Commission which drafted the Civil Code of the Philippines) also believes that no such ratification can be made by the parent, because a recognition of such right to ratify would encourage the disregard of the requirement of parental consent before the marriage is performed because the bride or the groom would go ahead and get married even without parental consent with the hope of obtaining the confirmation or ratification later on.50 This is the same position held by Civil Code Revision Com-mittee which drafted the Family Code.51 On the other hand, Dr. Tolentino holds that the parents can ratify the marriage before the child concerned reaches the proper

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age with the following reasoning: We believe, however, that notwithstanding the omission of an express authorization for the parent to ratify, the ratification by the parent whose consent is wanting must be recognized as sufficient to validate the marriage, provided such ratification is made before the party to the marriage reaches the age of twenty or eighteen, as the case may be. Article 87, paragraph (1) recognizes the right of such parent to ask for the annulment of the marriage before the child who has married without parental consent reaches the age of twenty or eighteen. This right can be waived. Besides, if the nullity proceeds from the absence of consent, there is no juridical reason why such defect cannot be cured by subsequent confirmation. The consent is all that the law requires, and it is immaterial whether that consent is given in advance or subsequently by ratification.52 It is submitted that Dr. Tolentinos view is more in accord with the spirit of the law for the following reasons: 1. The law and the policy of the State is always in favor of marriage;53 and 2. The nature of voidable marriage, which is valid until annulled, favors ratification of marriage by parental consent given after the marriage. The law gives the parents or, in their absence, the guardian or the person having legal charge over the child concerned, the right to validate the marriage completely by giving their or his consent thereto. Although the normal procedure is to give the consent prior to the celebration of marriage as can be seen from Article 14, still the law does not give a specific time frame within which the parents or guardian or the person having legal charge over the child concerned are or is to give their or his consent outside of which said consent would not have any valid and binding effect. Given the spirit of the law and the policy of the State on marTolentino, loc. cit. Public policy should aid acts intended to validate and should retard acts intended to invalidate marriages. Adiong v. Cheong Seng Gee, 43 Phil. 43, 56; Marriages is a very sacred institution. It is the foundation on which society rests. To annul it, the proofs must be clear and convincing. Buccat v. Buccat, 72 Phil. 19;
52 53

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riage, it is submitted that parental consent given subsequent to the marriage and prior to the party concerned reaching the age of 21 would take away the defect and completely validate the voidable marriage. One can ask a holder of the view of Dr. Tolentino a corollary question: Can one construe the failure of the parents or guardian or the person having legal charge over the child concerned to file an action to annul the marriage within the time prescribed by law as an implied consent? It is submitted that the failure of the parents or guardian or person having legal charge over the party concerned to file the annulment case does not result in implied parental consent. If within the prescribed time the parents or guardian or person having legal charge over the party concerned do not file the annulment case, it simply means that they have chosen not to exercise the right given them by law. This is strengthened by Article 47(1) where the party concerned is given the right to file an annulment of his marriage with the other party five years after reaching the age of 21. Why should the law give the party concerned the right to annul the marriage if the marriage has already been validated by the implied consent of the parents or the proper person? Hence, the parental consent here must be expressed. An implied consent due to inaction of the parents or guardian is not the parental consent the law requires. Grounds for Annulment: Unsound mind That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; Menciano, et al. v. San Jose, et al.54 is the authority of the mental capacity that a party should possess at the time he gave his consent to the wedding. In this case, the Supreme Court holds that the mental testamentary capacity should apply also to the mental capacity to
The fundamental policy of the State, which is predominantly Catholic and considers marriage indissoluble, is to be cautious and strict in granting annulment of marriage. Roque v. Encarnacion, 95 Phil. 643, all taken from Aquino, op. cit., p. 153. 54 89 Phil. 63. 55 48 Phil. 772. 56 58 Phil. 728. 57 Cf. Hoadley v. Hoadley, 244 N.Y. 424, 155 N.E., 728, taken from Tolentino, op. cit., p. 264.

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contract marriage. Citing Torres, et al. v. Lopez,55 the Supreme Court adopts the definition therein of the mental capacity that should be present in each contracting parties to a marriage, namely, that although a person may be physically and mentally weak because of old age, such person is considered mentally sound if he still possessed that spark of reason and of life, that strength of mind to form a fixed intention and to summon his enfeebled thoughts to enforce that intention, which the law terms testamentary capacity. Also citing Sancho v. Abella,56 Supreme Court holds that Neither senile debility, nor deafness, nor blindness, nor poor memory, is by itself sufficient to establish the presumption that the person suffering therefrom is not in the full enjoyment of his mental faculties, when there is sufficient evidence of his mental sanity at the time of the execution of the will. The test is whether the party at the time of marriage is capable of understanding the nature and consequences of the marriage. It does not require that the party is fully aware of all the responsibilities that marriage entails at the time of the marriage as, for example, the responsibility that will follow from begetting children. It suffices that he is fully aware at the time of marriage that his I do means lifetime living with his spouse.57 Hence, mere mental weakness that does not deprive a party of the capacity to understand and appreciate the consequences of the step he is taking does not affect the validity of marriage.58 Insane delusions or impulses in an otherwise sane party, as, for example, kleptomania, do not affect the validity of his marriage to the other party.59 For the presumption of the law is in favor of sanity. Anyone who claims a person to be of unsound mind has the burden of proving it. However, where general insanity is once shown to exist, it is presumed to continue, and if a recovery or lucid interval is alleged to have occurred, the burden of proving it is on the person claiming the occurrence of the recovery or lucid interval. Thus, any person who claims that an act done subsequent to insanity and claimed to be done during a lucid interval, has to prove that there was a lucid interval and that it was during such interval that the act was done, or that the insane person was sane at the time he did the act. It
58 Elzey v. Elzey, 1 Houst. (Del.) 308; Svanda v. Svanda, 93 Neb. 404, 104 N.W.777, taken from Tolentino, op. cit., p. 265. 59 Lewis v. Lewis, 44 Minn. 12, 46 N.W. 323, taken from Tolentino, loc. cit.

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does not suffice to show a lucid interval before and after the time of the act.60 Intoxication which results in lack of mental capacity to give consent as when the groom was so drunk that after the wedding he had but a dim recollection of going through a marriage ceremony, and had no intention of getting married and had never asked the bride to marry him, the marriage is voidable on the ground that the groom had an unsound mind at the time of marriage.61 Likewise, somnambulism at the time of the wedding is equivalent to having an unsound mind and makes the marriage voidable.62 Insanity as a ground for an annulment of marriage has been defined by the Supreme Court in Engle v. Doe, quoting Section 9 of Act 2122, as follows: Within the meaning of this Act, insanity is a manifestation, in language or conduct, of disease or defect of the brain, or a more or less permanently diseased or disordered condition of the mentality, functional or organic, and characterized by perversion, inhibition, or disordered function of the sensory or of the intellective faculties, or by impaired or disordered volition. Grounds for annulment: Fraud That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife. Art. 46. Any of the following circumstances shall constitute fraud referred to in Number 3 of the preceding Article: (1) Non-disclosure of a previous conviction by final judgment of the other party of a crime involving moral turpitude;
Engle v. Doe, G.R. No. 23317, Aug. 7, 1925. McNee v. McNee, 49 Nev. 90, 237 Pac 534, taken from Tolentino, op. cit., pp. 265-266. 62 15 Sanchez Roman, cited by Paras, op. cit., p. 424. 63 G.R. No. 4810, Jan. 13, 1909. 64 Tolentino, op. cit., p. 272. 65 Ibid. 66 Black, Henry Campbell, Blacks Law Dictionary, abridged 5th Ed., p. 522.
60 61

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(2) Concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband; (3) Concealment of a sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or (4) Concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, existing at the time of the marriage. No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. (86a) The jurisprudence on fraud to obtain consent to the marriage prior to the effectivity of the Civil Code, specifically Article 86 thereof, is expressed in Garcia v. Montague63 where the Supreme Court, in affirming the decision of the trial court dismissing the complaint of Victoria Garcia seeking the annulment of her marriage with B. Montague on the ground that her consent was obtained through deceit by Montague, telling her that he was a Roman Catholic which she found out was a lie after their civil marriage, ruled that it is necessary that from the trial it appear fully proven that the plaintiff who claims the annulment gave her consent as a result of the fraud or deceit practiced on her, and which directly induced her to contract marriage with the person who availed himself of such fraudulent means in order to persuade her to celebrate an act which was of such far-reaching effects in her life, and which caused a change in her status. This was in consonance with the generally accepted principle that in order to affect the validity of marriage, the fraud must relate to essential matters affecting the health or well-being of the parties themselves or any offspring from the marriage. Thus, the fraud in the following cases were held sufficient for annulment where the husband represented himself as an honest, industrious man when in fact he was a professional thief, or a drunkard and seducer of women; or where the party represented himself to be in good health when in fact he was afflicted with a communicable venereal disease, or chronic tuberculosis; or where a woman who was
67

In re Basa, 41 Phil. 275; In re Isada, 60 Phil. 915; Zari v. Flores, 94 SCRA

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incapable of bearing children because of an operation resulting in sterility concealed such fact from her would-be husband.64 However, the Civil Code has abandoned the above rule and has adopted the principle of enumeration. Only those grounds enumerated by Article 86 of the Civil Code can legally constitute the fraud upon which a marriage can be annulled. No other case of fraud, however grave, even if it relates essentially to the marital relation, can be a ground for annulment.65 The Family Code follows the principle of enumeration of the Civil Code. This is clear from the last paragraph of Article 46 which reads: No other misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute such fraud as will give grounds for action for the annulment of marriage. The fraud referred to under Article 46 refers to the fraud under Article 1339, rather than to Article 1338, of the Civil Code. Under Article 46 fraud consists more of failure to disclose facts when there is duty to reveal them. For definitely both parties to the marriage have to reveal any one of the grounds enumerated by Article 46 of the Family Code as any one of them can affect the very fabric of their marital relation. Grounds for annulment: Fraud; non-disclosure of a crime involving moral turpitude To constitute fraud, the following conditions must be present in the non-disclosure by the party concerned of a crime involving moral turpitude: 1. The party concerned has been convicted of a crime involving moral turpitude; 2. The judgment of conviction has become final, i.e., it was not appealed within the reglementary period or the appellate court has affirmed the conviction and there is no more remedial step to
317, 322, cited by Aquino, op. cit., pp. 157-158. 68 Tolentino, op. cit., p. 273. 69 72 Phil. 19.

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question the correctness of the judgment of conviction under the law; and 3. The party concerned did not disclose said final conviction to the other prior to the marriage. Blacks Law Dictionary66 defines moral turpitude as the act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man. Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others. The Supreme Court enumerated some crimes involving moral turpitude as adultery, concubinage, rape, arson, evasion of income tax, barratry, bigamy, blackmail, bribery, smuggling of opium, dueling, embezzlement, extortion, forgery, libel, making fraudulent loss on an insurance contract, murder, mutilation of public records, fabrication of evidence, offenses against pension laws, perjury, seduction under promise of marriage, estafa, falsification of public document.67 Article 46(1) has changed Article 86(2) of the Civil Code by eliminating the requirement that the penalty imposed is imprisonment for two or more years. Now, as long as the conviction by final judgment is a conviction of a crime involving moral turpitude whatever may be the penalty, the party concerned has to tell his would-be spouse about such a conviction prior to the marriage if he wants the marriage to be completely valid and not voidable. Grounds for annulment: Fraud; concealment of pregnancy This kind of fraud affects the very core of the marital relations which should be one of love, respect, and fidelity. Love, respect, and fidelity are all characterized by openness or honesty. To conceal from her husband the fact that she became pregnant by a man other than him reveals a scheming woman who has no love, respect, and fidelity for her husband. As Dr. Tolentino puts it, procreation of children is one of the most important objects of marriage and the husband has the right to require that his wife shall not bear to their bed children alien to his blood and lineage as they will be carrying his name and

70

Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of

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whom he will surely think and treat as his own children.68 However, in Buccat v. Buccat,69 the Supreme Court ruled that the action for annulment could not be granted since the claim of the plaintiff that he did not suspect the pregnancy of his wife at their marriage was unbelievable as it had been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage. In other words, where the husband knows at the time of the marriage that his wife was pregnant, he cannot go to court and ask that his marriage with her be annulled on the ground that she was pregnant by another man, as there was no fraud on the part of the wife. Where a man has had sexual intercourse with his wife before marriage and she was pregnant at the time of the marriage, he cannot go to court to ask for the annulment of their marriage on the ground that she concealed the fact that she was pregnant by a man other than himself although the pregnancy was really caused by the other man.70 There was no fraud as the husband himself knew his wife to be unchaste, being a party to her pre-marital immorality. He cannot go to court with unclean hands (in pari delicto).71 In Aquino v. Delizo,72 the Supreme Court made the following observation in overturning the decision of the Court of First Instance of Rizal and that of the Court of Appeals affirming the CFIs decision which dismissed the complaint of the plaintiff for the annulment of his marriage to the defendant on the ground that the latter concealed her pregnancy by another man from him, rejecting the application of Buccat v. Buccat in the case, to wit: Under the new Civil Code, concealment by the wife of the fact that at the time of the marriage, she was pregnant by a man other than her husband constitutes fraud and is ground for annulment of marriage. (Art. 85, par. [4] in relation to Art. 86, par. [3].) In the case of Buccat vs. Buccat (72 Phil. 19) cited in the decision sought to be reviewed, which was also an action for the annulment of marriage on the ground of fraud, plaintiffs claim that he did not even suspect the pregnancy of the defendant was held to

the Philippines with The Family Code of the Philippines, Vol. 1, 1990 Reprint, p. 299 citing Carris v. Carris, 24 N.J. Eq. 516. 71 Ibid., citing Crehore v. Crehore, 97 Mass. 330, 93 Am. Dec. 98; Franke v. Franke, 96 Cal. 494, 31 Pac. 570.

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be unbelievable, it having been proven that the latter was already in an advanced stage of pregnancy (7th month) at the time of their marriage. That pronouncement, however, cannot apply to the case at bar. Here the defendant wife was alleged to be only more than four months pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say that her pregnancy was readily apparent, especially since she was naturally plump or fat as alleged by plaintiff. According to medical authorities, even on the 5th month of pregnancy, the enlargement of a womans abdomen is still below the umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement of the womans abdomen reaches a height above the umbilicus, making the roundness of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122.) Hence, the following must be present for concealment of pregnancy as a ground for annulment to prosper: (a) The wife got pregnant by a man other than her husband at the time of marriage; (b) She concealed her pregnancy from her husband; (c) The husband did not know of the pregnancy at the time of the marriage; and (d) wife. Grounds for annulment: Fraud; concealment of sexually transmissible disease This is one of the grounds constituting fraud added by the
109 Phil. 21. Tiongco v. Matig-a, 44 O.G. No. 1, p. 96, from Sempio-Diy, op. cit., p. 57. 74 People v. Santiago, 51 Phil. 68, from Sempio-Diy, loc. cit. 75 Ruiz v. Atienza, O.G. Aug. 30, 1941, p. 1903. 76 Sempio-Diy, op. cit., p. 57. 77 Menciano, et al. v. San Jose, et al., supra.
72 73

He was not a party to the pre-marital immorality of his

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Civil Code Revision Committee. The elements constituting this ground are: 1. One of the parties is suffering from a sexually transmissible disease regardless of its nature; 2. The party concerned was suffering from such a disease at the time of marriage; and 3. The party concerned has concealed such illness from the other party prior to or at the time of the marriage. Grounds for annulment: Fraud; concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism This is the second new ground that the Civil Code Revision Committee adds as constituting fraud. The elements are as follows: 1. One of the parties is suffering from drug addiction or habitual alcoholism or homosexuality (man) or lesbianism (woman); 2. The party concerned was suffering from such addiction, alcoholism, homosexuality or lesbianism at the time of marriage; and 3. He/she concealed such fact prior to or at the time of the marriage. Grounds for annulment: Force, intimidation, undue influence The force referred to is that described by the first paragraph of Article 1335 of the Civil Code which is serious or irresistible, preventing a party from acting as a free agent. The intimidation under this provision is the one defined by the second paragraph of Article 1335 which is a reasonable and wellfounded fear by one party of an imminent and grave evil that will happen upon his person or property or upon the person or property of his descendants or ascendants which caused him to give his consent to the marriage. The threat or intimidation must be of such a nature as to prevent the victim from acting as a free agent. Thus, where a man was threatened with armed demonstrations by the brothers of the woman in order to marry the latter, the marriage was held annullable.73 When a man rapes a girl and then forces her to marry him in order that he may not be prosecuted for rape, but he has no intention

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to live with the girl, the marriage is annullable.74 However, threat or intimidation, which consists of seeking redress of a wrong done as provided by law, cannot fall under this kind of threat and intimidation. Thus, a threat to file a case of seduction against a man which threat forced him to marry the woman he seduced is not a ground for the annulment of his marriage with the woman he seduced.75 Article 1337 of the Civil Code states that undue influence exists when a person takes improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice. The following circumstances are to be considered: the confidential, family, spiritual and other relations between the parties, or the fact that the person alleged to have been unduly influenced was suffering from mental weakness, or was ignorant or in financial distress. A mother, suffering from heart ailment and such ailment is known to her son, pleads with her son to marry the daughter of her best friend, saying, Pagbigyan mo na ako, anak. Huling kahilingan ko ito sa yo. Gusto ko lang makasiguro na tama ang babaeng pakakasalan mo, is exercising such pressure on her son. Justice Sempio-Diy gives the reason for adding this ground: The Committee added undue influence as a ground for annulment of marriage because while the fear that induces a person to enter into a marriage may not strictly be founded on any threatened physical, material, or moral harm, he may be compelled to enter into marriage out of reverential fear, i.e., fear of causing distress, disappointment, or anger on the part of one whom a person has been conditioned to revere, respect, or obey out of a special debt of gratitude, like his parents, grandparents, godparents, employer, etc..76 Grounds for annulment: Impotence The impotence referred to under Article 45(5) refers to the physical inability to have sexual intercourse and should not be confused with sterility.77 There is a difference between the impotence under Article 85

78 79

Tolentino, 1974 ed., op. cit., p. 267. Capistrano, Francisco R., Civil Code of the Philippines with Comments and

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(6) of the Civil Code and under Article 45(5) of the Family Code in that the latter refers to impotence quoad hanc, that is, the spouse concerned may be incapable of sexual intercourse with his spouse only but not with other persons. Under Article 85(6), the impotence is general, that is, the spouse concerned is incapable of sexual intercourse. In Menciano, et al. v. San Jose, et al., the Supreme Court quoted the definition of impotence of Dennis System of Surgery which is inability on the part of the male organ of copulation to perform its proper function. It quoted also the definition of impotency or impotence of Websters New International Dictionary, 2nd Ed., Unabridged, p. 1251, under Law and Medicine, which is incapacity for sexual intercourse. The difference can clearly be seen by comparing the words of Article 85(6) to Article 45(5). Under Article 85(6), the words are either party was, at the time of marriage, physically incapable of entering into the married state . . . Under Article 45(5), the words are either party was physically incapable of consummating the marriage with the other. . . Hence, to be a ground for annulment, the impotence under Article 45(5) must have the following elements: (a) At the time of marriage either party was incapable of having sexual intercourse with the other; (b) Such incapacity continues to the time when the case for annulment is being tried; and (c) It appears to be incurable. Dr. Tolentino adds a fourth element, namely, the impotence must be unknown to the other party.78 This is opposite to the opinion expressed by Dean Capistrano who writes that . . . even if the physical incapacity (impotence) of one party was known to the other at the time of marriage, such marriage is voidable just the same, but the latter cannot recover damages should he sue for annulment (Art. 91, No. 2; Art. 87, No. 6).79 Justice Jurado, in espousing the view of Dr. Tolentino over that of Dean Capistrano, gives the following reasons: 1. Under No. 6 of Article 87 of the Civil Code, the law declares that the person who can bring the action for annulment of the
Annotations, Vol. I, 1950 Ed., p. 99. 80 Adong v. Cheong Seng Gee, supra. 81 Buccat v. Buccat, supra.

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marriage on the ground of physical incapacity is the injured party. Now, if the plaintiff was aware that the defendant was impo-tent at the time of their marriage, how can we say that he or she is the injured party? 2. The equitable principle of estoppel is applicable here. When a party to a marriage contract is aware that he is getting married to a man or woman, who is impotent, it is clear that he is renouncing copulation which is a purely personal right. 3. Sexual intercourse is not the only end or purpose of marriage. There are other purposes. This is clearly indicated by the fact that there is no maximum age requirement imposed by our law. Consequently, even when one of the parties has already reached that age when copulation is no longer possible, the marriage is still valid. By parity of reasoning, the same can be applied to a marriage where the party is aware of the impotence of the other. Another reason may be added public policy favors the continued validity of marriage. As expressed by the Supreme Court, public policy should aid acts intended to validate marriages.80 Marriage is a very sacred institution. It is the foundation on which society rests. To annul it, the proofs must be clear and convincing.81 Thus, if the other party knew of the incurable impotence of the party concerned before the marriage, he cannot file a case of annulment based on the impotence of his spouse. The same rule applies also to a man and a woman who are both impotent before the marriage.82 The weight of authorities also favors Dr. Tolentinos position. However, impotence, being an abnormal condition, should not be presumed. The presumption is in favor of potency.83 Thus, in Jimenez v. Caizares84 where the husband complained that his wife could not copulate because her vaginal orifice is too small to allow the penetration of a male organ, and the wife abstained from taking part in the case, and the city attorney found that there was no collusion, the Supreme Court held that the wife should be examined because the husbands testimony as to her impotence was not sufficient. As a ground for annulment of a marriage, impotence must be shown to exist not only at the time of marriage but also has continued to exist

2-11 Ruggiero, 104-105, cited by Tolentino, op. cit., p. 269. Menciano, supra. 84 109 Phil. 273.
82 83

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to the time when the case for annulment is being tried and seems to be incurable. So that if it ceases to exist before the hearing or there is a probability that the party concerned can have sexual intercourse with the other, the annulment cannot be granted.85 If the impotence on the part of the wife may be removed by surgical operation which is not greatly dangerous to life or extremely painful, it is not sufficient in law to constitute impotency.86 In England and in some American courts, the presumption is that the husband is impotent if his wife has remained a virgin after three years of living together. This presumption is called triennial cohabitation. It is a disputable presumption, meaning that the husband has the burden to prove his potency.87 Grounds for annulment: Sexually transmissible disease (STD), serious and seemingly incurable To be a ground for annulment, the following conditions must be present, namely: (a) disease; (b) (c) (d) riage.88 Either party was afflicted with a sexually transmissible The STD is found to be serious; It appears to be incurable; and The other party did not know of it at the time of the mar-

Dr. Tolentino adds the last condition. Justice Sempio-Diy supports this with the following comments: The sick party might not even have known of his own illness at the time of marriage, but once the illness is discovered, the other party is entitled to annul the marriage, on the theory that if she or he had known about it, she or he would not have consented to the marriage. The healthy party, because of love and compassion for the sick party, might not after all annul their marriage, but he or she
85 Am. Jur., p. 257, cited by Francisco, Vicente J., Civil Code of the Philippines, Book I, 1953 Ed., p. 286. 86 Ibid. 87 Tompkins v. Tompkins, 92 N.J. Law 113, 111 Atl. 599, cited by Francisco, op. cit., p. 287.

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should be given the right to annul the same, considering the seriousness of the others illness, which may not only be transmitted to the healthy spouse but may even have serious effects in their offspring.89 Article 45(6) differs from Article 46(3) as follows: 1. The STD under Article 45(6) is serious and appears to be incurable; under Article 46(3), the STD may or may not be serious and incurable; 2. The STD under Article 45(6) was not concealed; under Article 46(3), the STD was concealed. Ratification of voidable marriages Article 45 also provides for ratification of the following marriages: 1. For one who had to obtain parental consent and got married without obtaining it, he ratifies the marriage by freely cohabiting with the other as husband and wife after reaching 21 years old. 2. For the spouse with an unsound mind, he ratifies the marriage by freely cohabiting with the other as husband and wife after coming to reason. 3. For one whose consent was obtained through fraud, he ratifies the marriage by freely cohabiting with the other as husband and wife after knowing fully the facts constituting the fraud. 4. For one whose consent was obtained through force, intimidation or undue influence, he ratifies the marriage by freely cohabiting with the other as husband and wife after the force, intimidation or undue influence has ceased or disappeared. The law does not fix a definite period for the cohabitation to last in order to constitute ratification. Dr. Tolentino submits that the cohabitation must last for such a length of time, after the cause of nullity has ceased to exist, as to give rise to a reasonable inferTolentino, 1990 Reprint, op. cit., p. 294. Sempio-Diy, op. cit., pp. 61-62. 90 Tolentino, 1990 Reprint, op. cit., pp. 294-295. 91 Tolentino, 1990 Reprint, op. cit., pp. 295-296. 92 168 N.C. 311, 84 S.E. 703, cited by Tolentino, 1990 Reprint, p. 303. 93 244 N.Y. 424 155 N.E. 728, cited by Francisco, supra.
88 89

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ence that the party entitled to bring the action for nullity prefers to continue with the marriage.90 Ratification means that the party, who has the cause of action to seek annulment of the marriage he entered into with another, freely confirms it by an act subsequent to the marriage, which act the law looks at as ratifying or confirming the marriage. The consequence of the act ratifying the defective marriage cures the defect and makes the marriage valid. Consequently, the marriage can no longer be subject to annulment under the ground which made it defective. So that even if the concerned party will change his mind subsequent to the ratification, he cannot successfully seek annulment of their marriage from the courts. Ratification: Marriages which cannot be ratified There are, however, marriages which cannot be ratified, namely, (1) where one spouse is incurably impotent, and (2) where one spouse is afflicted with a serious and incurable sexually transmissible disease. This is because the ground of nullity in each case will never cease to exist. Dr. Tolentino proffers the opinion that a third case of marriage is not subject to ratification, namely, marriage between a sane and an insane person insofar as the sane spouse is concerned. This is because as long as the insane spouse remains insane he cannot freely give his consent to the marriage. He writes: A third case of a marriage which cannot be ratified because no provision is made in law, is marriage where a sane marries an insane spouse without knowledge of the insanity. Although the insane spouse can ratify the marriage after recovering reason, the sane spouse cannot be barred from asking for annulment even if he has continued to cohabit with the insane spouse after learning of such insanity.91 The author agrees with Dr. Tolentino insofar as his view on ratification is concerned. He, however, disagrees, with all due respect, with his view on the sane spouse not being barred from asking for annulment even if he has continued to cohabit with the insane
Cf. Sec. 6 of Rule 18 of the 1964 Rules of Court. Under Sec. 9(1) in relation to Sec. 8(3) of Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages, the court shall
94 95

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spouse after learning of such insanity is concerned. He submits the following reasons: 1. The equitable principle of estoppel which Justice Jurado puts forth in support of Dr. Tolentinos view on the spouse marrying an impotent person knowing him to be impotent, applies with equal force to this particular situation; 2. So does the reason behind the ratification of the other voidable marriages by freely cohabiting with the other after knowing fully the facts constituting the fraud or after the cause of the nullity has disappeared or ceased. The fact that the law does not provide for the ratification of this particular situation does not mean that one cannot apply the reason behind the other statutory provisions closely connected thereto in concluding that the sane spouse has waived his right to annul his marriage with the insane spouse when he freely cohabited with the latter after knowing of the insanity; and 3. The wordings of Article 47(2) shows that only when the sane spouse does not know of the others insanity can he file an annulment of his marriage with the other spouse. So that if he knew of his spouses insanity, he cannot institute any annulment against his marriage. The reason for Article 47(2) may be found in the American jurisprudence. Watters v. Watters92 gives the principle of estoppel as the reason why the sane spouse cannot seek annulment of his marriage when he knew of his wifes insanity and had lived with her for several years, begetting children. Hoadley v. Hoadley93 applies the principle of in pari delicto (he who comes to court must come with clean hands) in holding that where the sane spouse knew of the others insanity he cannot seek annulment of their marriage. Who can file, when to file annulment of marriage Art. 47. The action for annulment of marriage must be filed by the following persons and within the periods indicated therein: (1) For causes mentioned in number 1 of Article 45, by the party whose parent or guardian did not give his or her consent, within five years after attaining the age of twenty-

order the prosecutor to investigate whether there is collusion between the parties if

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one; or by the parent or guardian or person having legal charge of the minor, at any time before such party reaches the age of twenty-one; (2) For causes mentioned in number 2 of Article 45, by the sane spouse who had no knowledge of the others insanity; by any relative, guardian or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity; (3) For causes mentioned in number 3 of Article 45, by the injured party, within five years after the discovery of the fraud; (4) For causes mentioned in number 4 of Article 45, by the injured party, within five years from the time the force, intimidation or undue influence disappeared or ceased; (5) For causes mentioned in numbers 5 and 6 of Article 45, by the injured party within five years after the marriage. (87a) Marriage without parental consent For a marriage entered into without parental consent when such consent is required by law, the party who has to obtain the consent can file an annulment within five years after reaching 21 years old. The parents, guardian or the person who has legal charge of the party concerned can also file an annulment of the marriage before the latter reaches 21 years old. It is, of course, understood that the party concerned did not freely cohabit with the other spouse after reaching 21 years old for then such an act would ratify the marriage. Marriage with an insane person For the marriage with an insane person, the sane spouse can file the annulment before the death of the other provided he did not know of the insanity of the other when marrying her. The insane spouse can file the annulment before the death of the sane spouse during a lucid interval or after regaining sanity. Any relative of the
no answer is filed or if the answer does not tender an issue and the prosecutor has to submit a report to the court of the result of his investigation.

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insane spouse, his guardian or person who has legal charge over him can file also an annulment of the marriage before the death of either spouse. The statutory wordings, however, indicate that the sane spouse is precluded from filing an annulment if he knows of the insanity of the other at the time he married her. Consent to marriage with fraud For a marriage where one spouses consent was obtained by fraud, the deceived spouse can file an annulment of the marriage within five years after the discovery of the fraud. Consent through force, intimidation, undue influence For a marriage where the consent of one spouse was obtained through force, intimidation or undue influence, the victim-spouse can file an annulment of the marriage within five years after the force, intimidation or undue influence has ceased. Impotence For a marriage where one spouse is physically incapable of consummating the marriage with the other, the physically capable spouse can file an annulment of the marriage within five years from the celebration of the marriage. STD, serious and seemingly incurable For a marriage where one spouse is afflicted with a serious and seemingly incurable STD, the healthy spouse can institute an annulment within five years from the date of the marriage. It is interesting to note that in a marriage where one spouse is either impotent or afflicted with a serious and seemingly incurable STD, the law provides a five-year prescription within which the proper party can file an annulment case but does not provide for the ratification of such a marriage. But although the law does not provide for its ratification, it gives a specific time frame within which the proper party can void such marriage in court. After the lapse of the period, he can no longer seek to annul the marriage. It would seem that the present law allows this kind of voidable marriage to lapse into a valid one by taking away the remedy to void them. For voidable marriages are valid until annulled. Duties of the courts in annulment/declaration of absolute

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nullity of marriage Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the court shall order the prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. In the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment. (88a) Over the public prosecutor Under this article, one of the duties of the court trying a case of annulment or declaration of absolute nullity of marriage is to order the public prosecutor assigned to it to appear for the State for the following purposes: 1. and 2. To take care that the evidence presented is not fabricated or that evidence which should be presented is not suppressed by any of the parties so that the case will prosper. The manifest purpose of the Article is prevent the granting of the petition for annulment or declaration of nullity of marriage when there actually exists no legal ground for such judicial decree. If there is collusion between the parties, they can easily fabricate or suppress evidence which would bar the grant of the petition. If the public prosecutor finds no evidence of collusion, he is still dutybound to intervene for the State so that the evidence submitted is not fabricated.94 This article differs from Article 88 of the Civil Code, a similar article, in that the appearance and active participation of the defendant do not affect the courts duty to order the public prosecutor to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that there is no fabrication nor suppression of evidence. Under Article 88 of the Civil Code, the courts duty to order the fiscal or public attorney to inquire whether or not there is a collusion between the parties arises only when the defendant fails To take steps to prevent collusion between the parties,

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to appear in court. So that if the defendant answers the complaint and then actively participates in the proceedings, the court does not have to order the fiscal to intervene for the State. The courts duty to order the fiscal to intervene for the State arises only if the defendant does not appear in court or does not actively participate in the proceedings of the case.95 Under the Family Code the defendants active participation in the proceedings of an annulment or declaration of nullity of a marriage does not affect the courts duty to order the public prosecutor to act on behalf of the State to prevent collusion between the parties and to see to it that no evidence is fabricated or suppressed. This more strict policy may be traced to the fact that the sacredness of marriage and the vital importance of the family are now enshrined in the present Constitution.96 Because of this, the Supreme Court in Roque v. Hon. Encarnacion97 holds that the fundamental policy of the State is to be cautious and strict in granting annulment of marriage, citing Articles 88 and 101 of the Civil Code (now Articles 48 and 60 of the Family Code). In Tolentino v. Villanueva, et al.,98 it explains why the law enjoins the court to direct the fiscal to intervene for the State when the defendant fails to appear in court in this way: The prohibition expressed in the aforesaid laws and rules is predicated on the fact that the institutions of marriage and of the family are sacred and therefore are as much the concern of the State as of the spouses; because the State and the public have vital interest in the maintenance and preservation of these social institutions against desecration by collusion between the parties or by fabricated evidence. The prohibition against annulling a marriage based on the stipulation of facts or by confession of judgment or by non-appearance of the defendant stresses the fact that marriage is more than a mere contract between the parties; and for this reason, when the defendant fails to appear, the law enjoins the court to direct the prosecuting officer to intervene for the State in order to preserve the integrity and sanctity of the marital bonds.

96

Sec. 12, Art. II and all sections of Art. XV of the Constitution.

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What is collusion? When is there collusion between the parties? In De Ocampo v. Florenciano,99 the Supreme Court cited with approval the definition of collusion given in Griffiths v. Griffiths, 69 N.J. Eq. 689 60 Atl. 1099 and Sandoz v. Sandoz, 107 Ore. 282, 214 Pas. 590, American cases, which is an agreement between husband and wife for one of them to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. In Brown v. Yambao,100 the Supreme Court defines collusion in matrimonial cases as the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of (an) agreement to defend divorce proceed-ings which definition it lifted from Cyclopaedic Law Dictionary; Nelson, Divorce & Separation, Section 500. In Yambao, the Supreme Court dismissed the argument of appellant Brown who argued that the Assistant Fiscal acted as counsel for the defaulting wife, when the power of the prosecuting officer is limited to finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for Juanita Yambao, the defendant-appellee, who is a private citizen and who is far from being the state. Here is how the Supreme Court answered the appe-llants argument: The argument is untenable. Collusion in matrimonial cases being the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of (an) agreement to defend divorce proceedings (Cyclopaedic Law Dictionary; Nelson, Divorce & Separation, Section 500), it was legitimate for the Fiscal

G.R. No. L-6505, Aug. 23, 1954. G.R. No. L-23264, March 15, 1974. 99 G.R. No. L-13553, Feb. 23, 1960. 100 G.R. No. L-10699, Oct. 18, 1957. 101 See Secs. 2 and 3 of the Rule on Provisional Orders regarding support of the spouses and of common children. 102 Art. 213, Family Code. 103 Sec. 2, Rule on Provisional Orders (Resolution No. A.M. No. 02-11-12-SC)
97 98

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to bring to light any circumstances that could give rise to the inference that the wifes default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation (underlining supplied) that he sought without regard to the legal merits of his case. One such circumstance is obviously the fact of Browns cohabitation with a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the new Civil Code. Wherefore, evidence of such misconduct, and the failure of the wife to set it up by way of defense, were proper subject of inquiry as they may justifiably be considered circumstantial evidence of collusion between the spouses. On stipulation of facts and confession of judgment In Florenciano, the Supreme Court explains when there is a confession of judgment which happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to plaintiffs demand. However, the Supreme Court takes pain in explaining that the article does not exclude as evidence any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. What the law prohibits is a judgment based exclusively or mainly on defendants confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. In De Cardenas v. Cardenas, the Supreme Court, in upholding the lower courts judgment which declares the second marriage between the defendant-appellants null and void ab initio because of the existence of the valid first marriage between the complainantappellee and Leoncio Cardenas based on the stipulation of facts of the parties supported by the marriage certificates of the parties, explains why the lower courts judgment is correct: In disposing of this appeal we did not overlook article 88 of the new Civil Code which provides that No judgment annulling a marriage shall be promulgated upon

effective March 15, 2003. 104 Sec. 3, Rule on Provisional Orders.

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a stipulation of facts . . . This article and Article 101 on legal separation of the same Code contemplates the annulment of a marriage or legal separation where the parties might secure the annulment of their marriage or their legal separation by collusion. In this case the possibility of such collusion is remote, because the interests of the wives are conflicting. Apart from this, the marriage certificates attached to the stipulation of facts are evidence (underlining supplied) and cannot be deemed to be a stipulation of facts. In other words, besides the stipulation of facts entered into by the parties, there were the marriage certificates of the complainant and the defendants. The marriage certificates were evidence independent of, and could stand alone without, the stipulation of facts. A marriage to be declared null and void or annulled should be truly based on any of the grounds the law provides, not on the desire of the contracting parties to end their marriage which they can get either by fabricating or suppressing evidence. With the active participation of the public prosecutor, the parties will find it quite difficult to fabricate or suppress evidence so as to attain what they would want. Providing for the support and custody of minor children, duty of the court Art. 49. During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses, the court shall provide for the support of the spouses and the custody and support of their common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. (n) While the case for annulment or declaration of absolute nullity of marriage is being tried, the court shall see to it that: 1. There are adequate provisions for the support of the contending spouses and their common child either because it finds that the written agreement between them does not adequately provide support for them and their common child or because there is no agreement, written or oral, between them as regards their support

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and that of their common child;101 2. The custody of the common child (minor) above seven years old shall be given to the parent the child chooses to live with. If the common child is under seven years old, the mother shall get the custody of the child unless the court finds compelling reasons not to do so.102 However, before the court decides to whom to award the custody of the minor child, it must give paramount consideration to his moral and material welfare; and 3. After deciding to whom the custody of the common child belongs, the court shall then provide for the appropriate visitation rights of the parent who lost custody of the common child. How to determine support for the spouses In determining support for the spouses, the court may consider the following factors: 1. Whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; 2. The time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouses future earning capacity; 3. The duration of marriage; 4. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market; 5. The needs and obligations of each spouse; 6. The contribution of each spouse to the marriage, including services rendered in home-making, child care, education, and career building of the other spouse; 7. 8. The age and health of the spouses; The physical and emotional conditions of the spouses;

9. The ability of the supporting spouse to give support, taking into account that spouses earning capacity, earned and unearned
105 106

1st and 2nd paragraphs, Sec. 4, Rule on Provisional Orders. 3rd and 4th paragraphs, Sec. 4, Rule on Provisional Orders.

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income, assets, and standard of living; and 10. Any other factor the court may deem just and equitable.103 During the hearing of the petition, the Family Court may direct the deduction of the provisional support from the salary of the spouse who is obliged to support. How to determine child support Subject to the sound discretion of the court, either or both parent may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: 1. The financial resources of the custodial and non-custodial parent and those of the child; 2. The physical and emotional health of the child and his or her special needs and aptitudes; 3. The standard of living the child has been accustomed to; 4. The non-monetary contributions that the parents will make toward the care and well-being of the child. The Family Court may direct the deduction of the provisional support for the child from the salary of the parent.104 How to determine child custody In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child. It shall consider the following factors: 1. The agreement of the parties; 2. The desire and ability of each parent to foster an open and loving relationship between the child and the other parent;
107

G.R. No. 115640, March 15, 1995, 59 SCAD 631.

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3.

The childs health, safety, and welfare;

4. Any history of child or spousal abuse by the person seeking custody, or who has had any filial relationship with the child, including anyone courting the parent; 5. 6. 7. The nature and frequency of contact with both parents; Habitual use of alcohol or regulated substances; Marital misconduct;

8. The most suitable physical, emotional, spiritual, psychological and educational environment; and 9. The preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit.105 Provisional custody; order of preference The court may award provisional custody of the child in the following order of preference to: 1. Both parents jointly; 2. Either parent taking into account all relevant considerations under the foregoing paragraph (2nd paragraph of Sec. 4, Rule on Provisional Orders), especially the choice of the child over seven years of age, unless the parent chosen is unfit; 3. The surviving grandparent, or if there are several of them, the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; 4. The eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; 5. The childs actual custodian over twenty-one years of age, unless unfit or disqualified; or 6. Any other person deemed by the court suitable to provide proper care and guidance for the child. The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change
108 Art. 363 and all the articles constituting Title II, Book I of the Civil Code have not been repealed by the Family Code and, therefore, are still in effect. 109 101 SCRA 183 (1980).

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the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents.106 Illustrative case; custody of a child to a parent Espiritu and Layug v. Court of Appeals and Masauding107 is a case which illustrates how a court should award the custody of a child, whether under or over seven years old, to the parent whom it considers can best serve the latters moral and material welfare. In resolving the issue raised before it, the Supreme Court applied Articles 363 of the Civil Code108 and 213 of the Family Code. The facts are as follows: The parties are Reynaldo Espiritu and his sister Mrs. Guillerma Layug, as the petitioners, and Teresita Masauding, the wife of Reynaldo, as the private respondent. The petitioners are the respondents in the petition for habeas corpus filed by Teresita in the Regional Trial Court of Quezon City (RTC) to gain custody of her children by Reynaldo. The RTC dismissed the petition, suspended the parental authority of Teresita over the children and gave Reynaldo the sole parental authority over them. The RTC ordered Teresita and Reynaldo to agree on Teresitas visitation rights and submit such agreement to the court for approval. Disagreeing with the judgment of the court of origin, Teresita went to the Court of Appeals which reversed the RTCs decision, giving the custody over the children to her and visitation rights on weekends to Reynaldo. Reynaldo and Guillerma went to the Supreme Court asking it to reverse the Court of Appeals decision and to reinstate the RTCs decision. Reynaldo and Teresita first met in 1976 at Iligan City where Reynaldo was working for the National Steel Corporation and Teresita was working as a nurse in a local hospital. In 1977, Teresita left for Los Angeles, California to work as a nurse. She acquired immigrant status later. In 1984, Reynaldos employer sent him to Pittsburgh, Pennsylvania as its liaison officer. There he and Teresita began living as husband and wife.

110

27 SCRA 501 (1969).

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On August 16, 1986, Rosalind Therese was born to them. On October 7, 1987, while on vacation in the Philippines, Reynaldo and Teresita got married. On January 12, 1988, they had their second child, Reginald Vince, born in the United States. Their relationship deteriorated until some time in 1990 they decided to separate. Teresita blamed Reynaldo for the break-up, accusing him of nagging her always on money matters. Reynaldo, on the other hand, pointed to her as the cause of the break-up, saying that she was a spendthrift, buying expensive jewelry and antique furniture instead of attending to household expenses. Instead of giving their marriage a second chance, Teresita left Reynaldo and the children and went back to California. However, she kept in constant touch with the children through long distance telephone calls. Reynaldo then brought the children to the Philippines and left them with his sister, Guillerma, as his work assignment in Pittsburgh was not yet completed. In 1992, Teresita returned to the Philippines and on December 8, 1992 filed the petition for habeas corpus. On June 30, 1993, the RTC dismissed the petition, suspended the parental authority of Teresita over the children and gave the sole parental authority over them to Reynaldo. It ordered the parties to agree on the visitation rights of Teresita, which agreement was to be submitted to the court for approval. Teresita, obviously not agreeing with the lower courts decision, went to the Court of Appeals. The Court of Appeals reversed the lower courts decision, gave the custody over the children to Teresita and visitation rights on weekends to Reynaldo. Reynaldo and Guillerma went to the Supreme Court. The Supreme Court cited Articles 363 of the Civil Code and 213 of the Family Code as the applicable legal provisions in resolving as to who of the contending parents should have custody over the children. Article 363 of the Civil Code reads:
111 The author does not also agree with Justice Sempio-Diys belief. Psychologists are one that besides heredity, environment is also a vital factor in the formation of human behavior and personality. In the words of the psychologists, . . . every person is the product of his heredity and environment. Always the two forces interact.

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In all questions on the care, custody, education and property of children, the latters welfare shall be paramount. No mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure. Article 213 of the Family Code reads: In case of separation of the parents, the parent designated by the court shall exercise parental authority. The court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. The Supreme Court started by distinguishing between children under seven years old and over seven. Children under seven should be given to their mothers as custodians, citing the report of the Code Commission, which drafted Art. 213, which says that a child below seven years old still needs the loving, tender care that only a mother can give and which, presumably, a father cannot give in equal measure. The choice of children over seven years old on who of the parents should have custody should be given paramount consideration unless the court finds the chosen parent unfit. Once the child over seven years old chose a parent over the other, the court should start determining whether the chosen parent is fit or unfit to be the custodian of the child. However, underlying all these is the principle that the paramount criterion must always be the childs interest. In Unson III v. Navarro,109 the Supreme Court puts it this way, in all controversies regarding the custody of minors, the sole and foremost consideration is the physical, education, social and moral welfare of the child concerned, taking into account the respective resources and social and moral situations of the con-tending parents. The Supreme Court then pointed out that the task of the trial court to choose the parent to whom the custody over the child should be awarded is not ministerial which should depend on whether the child is under seven and, hence, the custody is to be given to the mother, or over seven, and, hence, the choice of the child on who is to be his custodian, should be followed. As has been discussed, the court has to actively determine which of the parents can best serve

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the welfare of the child, material, social, and moral, the result of which should be the basis for the courts choice of the custodian of the child. The historical development of the parental duty over his child is explained in Medina v. Makabali110 as follows: . . . while our law recognizes the right of a parent to the custody of her child, Courts must not lose sight of the basic principle that in all questions on the care, custody, education and property of children, the latters welfare shall be paramount (Civil Code of the Philippines, Art. 363), and that for compelling reasons even a child under seven may be ordered separated from the mother (do). This is as it should be, for in the continual evolution of legal institutions, the patria potestas has been transformed from the jus vitae ac necis (right of life and death) of the Roman law, under which the offspring was virtually a chattel of his parent, into a radically different institution, due to the influence of Christian faith and doctrines. The obligational aspect is now supreme. As pointed out by Puig Pena, now there is no power, but a task; no complex of rights (of parents), but a sum of duties; no sovereignty, but a sacred trust for the welfare of the minor. As a result, the right of parents to the company and custody of their children is but ancillary to the proper discharge of parental duties to provide the children with adequate support, education, moral, intellectual and civic training and development (Civil Code, Art. 356). Based on the above considerations, the Supreme Court observed that the Court of Appeals was unduly swayed by an abstract presumption of law rather than an appreciation of relevant facts and the law which should apply to those facts; instead of scruti-nizing the records to discover the choice of the children and rather than verifying whether that parent is fit or unfit, respondent court simply followed statutory presumptions and general propositions applicable to ordinary or common situations. The seven-year age limit was mechanically treated as an arbitrary cut-off period and not a guide based on a strong presumption.

Psychologically speaking, the one cannot exist without the other. To ask Which is

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Then the Supreme Court started enumerating the facts of the case which should serve as the guide for the resolution of the issue, to wit: 1. The choice of the children was the father, Reynaldo. At the time the Supreme Court was deciding the case, both Rosalind and Reginald were over seven years old. Against the argument of Teresita that the seven-year reference in law applies to the date when the petition for a writ of habeas corpus is filed, not to the date when a decision is rendered, the Supreme Court answered: Considerations involving the choice made by a child must be ascertained at the time that either parent is given custody over the child. The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a future character change and becomes unfit, the matter of custody can always be re-examined and adjusted (Unson III v. Navarro, supra at p. 189). 2. The studies conducted by the child psychologist and the social welfare worker on Rosalind when she was a little over five years old came out with similar results: both against the mother, Teresita Masauding. The child psychologists study was to determine the effect on Rosalind being uprooted from Assumption College where she was studying. The social welfare case study of Rosalind was to secure clearance required before minors may go abroad. The child psychologists study on Rosalind revealed strong conflict with her mother, resulting in feelings of insecurity and anxiety. She refused to talk to her mother even on the phone. She feared being forced to leave school and her aunts (Guillerma) family to go back to the United States to live with her mother. She also saw her mother hugging and kissing a bad man who lived in their house and working for her father. The social welfare workers study revealed that Rosalind felt unloved and uncared for. She was more attached to her Yaya. She was suffering from emotional shock from her discovery of her
more important, heredity or environment? is like asking Which is more essential

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mothers infidelity. 3. The personal observation of Judge Lucas P. Bersamin, the presiding judge of the trial court, which is as follows: And, lastly, the Court cannot look at petitioner [Teresita] in similar light, or with more understanding, especially as her conduct and demeanor in the courtroom (during most of the proceedings) or elsewhere (but in the presence of the undersigned presiding judge) demonstrated her ebulent (sic) temper that tended to corroborate the alleged violence of her physical punish-ment of the children (even if only for ordinary disciplinary purposes) and emotional instability, typified by her failure (or refusal?) to show deference and respect to the Court and the other parties (pp. 12-13, RTC Decision). 4. The findings of the trial court which are as follows:

a) Teresita was legally married to one Roberto Lustado on December 17, 1984 in California when, within less than a year, she started living with Reynaldo, driving across continental United States for that purpose; b) She had an affair with one Perdencio Gonzales, a co-employee of Reynaldo, right there in their conjugal home, and it was there that her daughter, Rosalind, saw her hugging and kissing the bad man referred to by Rosalind in her story to the child psychologist; c) It was Teresita who left the conjugal home and her children, going to California; d) When Perdencio was reassigned to the Philippines, Teresita followed him, was seen in his company in a Cebu hotel, staying in one room and taking breakfast together. The letters and written messages sent by Teresita to Perdencio and submitted in evidence to the trial court prove their illicit relationship. All the above facts taken together constitute compelling reasons not to award the custody of the children to Teresita, their mother. The argument put forth by the Court of Appeals to justify its reversal of the decision of Judge Bersamin that moral dereliction has no effect on a baby unable to understand such action, citing Justice

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Sempio-Diy, who believed that a child below seven years should be given to his mother even if the latter is a prostitute or unfaithful to her husband, cannot apply.111 Observed the Supreme Court: The argument that moral laxity or the habit of flirting from one man to another does not fall under compelling reasons is neither meritorious nor applicable in this case. Not only are the children over seven years old and their clear choice is the father, but the illicit or immoral activities of the mother had already caused emotional disturbances, personality conflicts, and exposure to conflicting moral values, at least in Rosalind. This is not to mention her conviction for the crime of bigamy, which from the records appears to have become final. The Supreme Court then concluded: The law is more than satisfied by the judgment of the trial court. The children are now both over seven years old. Their choice of the parent with whom they prefer to stay is clear from the record. From all indications, Reynaldo is a fit person, thus meeting the two require-ments found in the first paragraph of Article 213 of the Family Code. The presumption under the second paragraph of said article no longer applies as the children are over seven years. Assuming that the presumption should have persuasive value for children only one or two years beyond the age of seven years mentioned in the statute, there are compelling reasons and relevant considerations not to grant custody to the mother. The principle which the Supreme Court elucidated in the abovecited case and which should guide the court in deciding as to whom it should award the custody of the minor child or children has its root in Pelayo v. Aedo112 where it gives the basis on which the court should decide as to who should have the care, custody and control of the minor children, citing Section 771 of the Code of Procedure in civil actions, saying: . . . When husband and wife are living separate and apart from each other, or are divorced and the question as to the care, custody, and control of the offspring of their marriage is brought before the Court of First Instance, by petition or otherwise, or rises as an incident to any other

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proceeding . . . The court . . . shall decide which one of them shall have the care, custody, and control of such offspring, taking into account that which will be for the best interest (underlining supplied) of the children . . . In Chua v. Cabangbang, et al.,113 the Supreme Court affirmed the decision of the trial court which decided against the natural mother of the five-year old female child, giving the custody over the latter to a couple who were not related by blood in anyway to the child. Again, the basis for its decision was that the childs welfare shall be paramount, ruling that the petitioner was an unfit mother. Explains the Supreme Court: The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the child, the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum, childrens home, or benevolent society. (Sec. 6, Rule 99, Rules of Court, Sec. 7, id.) Parenthetically, Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioners contention that the first

to running a car, the motor or the gasoline? Obviously both are essential. (Sargent, Stansfeld, Ph.D., in collaboration with Stafford, Kenneth R., Ph.D., Basic Teachings of the Great Psychologists, Revised Ed., p. 40) A person is what he is because of his heredity and environment. The family and the value system of the family are part and parcel of the childs environment. The Holy Bible affirms this when it says: Train up a child in the way he should go: and when he is old, he will not depart from it. (Proverbs 22:6). 112 G.R. No. 15953, November 15, 1919. 113 G.R. No. L-23253, March 28, 1969, en banc. 114 In considering the childs welfare, the court should address his needs which are physical, emotional, psychological, mental, and spiritual. The sound and balanced development of the childs personality depends on these needs being satisfied. 115 Sec. 6, Rule on Provisional Orders.

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sentence of Art. 363 of the Civil Code, which states that: In all questions on the care, custody, edu-cation and property of children, the latters welfare shall be paramount. . .114 applies only when the litigation involving a child is between the father and the mother. That the policy enunciated in the above-quoted legal provision is of general application, is evident from the use of the adjective all meaning, the whole extent or quantity of, the entire number of, every of. (Websters New World Dictionary of the American Language, College Edition, 1959) It is, therefore, error to argue that if the suit involving a childs custody is between a parent and a stranger, the law must necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among others, a suit between a parent and a stranger who, in the words of the provision, is some reputable resident of the province. And under the authority of the said rule, the court if it is for the best interest (underlining supplied) of the child may take the child away from its parents and commit it to, inter alia, a benevolent person. Under the Rule on Provisional Orders, the Family Court has the authority to issue a hold departure order to prevent any person from bringing the child whose custody is being litigated out of the country,115 and an order of protection. The order of protection may require any person: (a) To stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; (b) To refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; (c) To refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child;

116 117

G.R. No. 140817, December 7, 2001, 159 SCAD 917. Art. 886, Civil Code.

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(d) To permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; (e) To permit a designated party to enter the residence during a specified period of time in order to take personal belongings not contested in a proceeding pending with the Family Court; (f) To comply with such other orders as are necessary for the protection of the child. Law applicable when one spouse is Christian and the other Muslim regarding custody of the minor children In Bondagjy v. Bondagjy, et al.,116 the Supreme Court was con-fronted with what statute to apply where the parties were both Muslims when married and the wife became or returned to being a Christian when the issue of who has to have custody of their children arose. The Supreme Court applied civil law. The controlling consideration on the issue is the welfare of the minors. Here is how the Supreme Court, speaking through Justice Pardo, resolves the issue The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The Family Code shall be taken into consideration in deciding whether a non-Muslim woman is incompetent. What determines her capacity is the standard laid down by the Family Code now that she is not a Muslim. Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and moral welfare of the children, and the ability to give them a healthy environment as well as physical and financial support taking into consideration the respective resources and social and moral situations of the parents. xxx The welfare of the minors is the controlling considVol. XXIII, No. 4, 4th Quarter 1997 and Vol. XXIV, No. 1, 1st Quarter 1998,

118

p. 33. Supra., p. 34. Transcript of the Senate hearing on January 27, 1988, quoted by Sta. Maria, Jr., op. cit., pp. 300-302.
119 120

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eration on the issue. In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take into account all relevant considerations. xxx We do not doubt the capacity and love of both parties for their children, such that they both want to have them in their custody. Either parent may lose parental authority over the child only for a valid reason. In cases where both parties cannot have custody because of their voluntary separation, we take into consideration the circumstances that would lead us to believe which parent can better take care of the children. Although we see the need for the children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the childrens needs. Respondent is a businessman whose work requires that he go abroad or be in different places most of the time. Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the contrary, is given to the mother. However, the award of custody to the wife does not deprive the husband of parental authority. Duties of the courts under Art. 50 Art. 50. The effects provided for in paragraphs (2), (3), (4), and (5) of Article 43 and in Article 44 shall also apply in proper cases to marriages which are declared void ab initio or annulled by final judgment under Articles 40 and 45. The final judgment in such cases shall provide for the liquidation, partition and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous judicial proceedings.
121 Sec. 19. Decision. (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall

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All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be notified of the proceedings for liquidation. In the partition, the conjugal dwelling and the lot on which it is situated, shall be adjudicated in accordance with the provisions of Articles 102 and 129. (n) Under Art. 50, the court has the following duties: 1. To provide in its judgment the liquidation, partition, and distribution of the properties of the spouses, and the custody and support of the common child, who may be a minor; 2. To determine the presumptive legitime of the child and provide for its delivery to the child; 3. To ascertain during the trial who of the spouses contracted marriage in bad faith if the counsels and the public prosecutor fail to inquire about this aspect. Articles 43 and 44 demand this from the court; and 4. In providing for the partition of the community property or the conjugal partnership, the court must see to it that the provisions of Art. 102 or 129, whichever article is applicable, are complied with insofar as the conjugal dwelling and the lot on which it is constructed are concerned. Effects of final judgment of annulment and declaration of nullity of marriage The effects of a final judgment of the annulment or declaration of nullity of a marriage are those found in (2) to (5) of Articles 43, 44, and the second paragraph of Article 50. The effects are as follows: 1. The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated. But if either spouse contracted the marriage in bad faith, his share in the net profits of the community property or in the conjugal partnership shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or, in default of children, the innocent spouse; 2. Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

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3. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as a beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; 4. The spouse who contracted the marriage in bad faith shall be disqualified from inheriting from the innocent spouse by testate and intestate succession; 5. If both spouses acted in bad faith, all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law; and 6. The final judgment shall provide for the liquidation, partition, and distribution of the properties of the spouses, the custody and support of the common children, and the delivery of their presumptive legitimes, unless such matters had been adjudicated in previous proceedings. Final judgment; liquidation, partition and distribution Liquidation consists of the inventory of the properties and the payment of the obligations of the spouses and of the marriage. All creditors shall be notified of the liquidation so they can assert their claims and be paid. After they are paid, the balance of the properties will constitute the assets of the spouses. In the inventory of the properties, the properties donated by the innocent spouse to the spouse in bad faith, or their value, should be counted as part of the separate properties of the innocent spouse as their donation has been revoked by operation of law and the properties are now part of the separate properties of the innocent spouse. If both spouses acted in bad faith then all the donations they made to each other by reason of marriage are revoked by operation of law and, hence, the donated properties should be now counted as part of the separate properties of the donor-spouse or spouses. Partition is the division of the remaining properties of the spouses after liquidation into parts which will then be allocated to all the parties. In general, the remaining properties are classified into the capital of the spouses and the net profits of the common (absolute community of property) or the conjugal properties (conjugal partnership of gains). The net profits in marriage depend on whether the property regime is absolute community of property or conjugal partnership of gains. In the absolute community of property, the net profits consist

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of the increase in the market value of the community property at the time of the dissolution of the marriage from its market value at the time of the celebration of the marriage. In the conjugal partnership, the net profits consist of the net remainder of the properties after liquidation. Distribution is the delivery to the spouses and the children the shares of the remaining properties allocated to them by law. Included in the distribution of the properties is the delivery of the forfeited share of the spouse in bad faith to the common children plus their presumptive legitimes. If the spouses have no children, then the share will go to the child or children of the spouse in bad faith by previous marriage. If such spouse has no child by previous marriage, then the forfeited share will go to the innocent spouse. The conjugal dwelling and the lot upon which it is built should be adjudicated to the spouse with whom the majority of the children choose to live. Children under seven years old are deemed to have chosen the mother unless the court decides otherwise. If there is no such majority, the court shall decide as to who between the spouses it will adjudicate the conjugal dwelling, taking into consideration the best interests of the children. The conjugal dwelling will be adjudicated to the spouse who will be awarded custody of the children. Presumptive legitime Art. 51. In said partition, the value of the presumptive legitimes of all common children, computed as of the date of the final judgment of the trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual agreement judicially approved, had already provided for such matter. The children or their guardian, or the trustee of their property, may ask for the enforcement of the judgment. The delivery of the presumptive legitimes herein prescribed shall in no way prejudice the ultimate succes-sional rights of the children accruing upon the death of either or both of the parents; but the value of the properties already received under the decree of annulment or absolute nullity shall be considered as advances on the legitimes. (n) Presumptive legitime is a new legal creation of the drafters of

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the Family Code. Legitime is defined by the Civil Code as that part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.117 Presumptive means resting on presumption, assumed, inferred or supposed. Presumptive legitime may, therefore, be defined as that part of the properties which the spouses have acquired during the marriage equivalent to the legitime of their compulsory heirs at the time of the final judgment of annulment or declaration of nullity of the marriage, and which they have to deliver to their common children pursuant to the said final judgment. But the question arises, What part of the properties of the spouses can be considered presumptive legitime? Does it include the separate properties of the spouses or only the conjugal properties? Atty. Diana F. Franco, in her article Presumptive Legitime in the Law Journal of the Integrated Bar of the Philippines,118 answers that the presumptive legitime should come from the conjugal properties only, not the exclusive or separate properties of the spouses. She gives the following persuasive explanation: The minutes of the Civil Code Revision Committee and the Family Code Committee on July 28, 1984 and on August 11, 1984 reveal that the main interest of the framers of the Family Code was to protect the interests of the children of the first marriage by providing not only for their support in the annulment proceedings but also for the delivery of their presumptive legitime. To insure that the delivery is complied with, the framers added the provision in Article 53 that either of the former spouses may marry again after compliance with the requirements of the immediately preceding Article; otherwise the subsequent marriage shall be null and void. While the Civil Code Revision Committee and the Family Code Committee may not have included in their deliberations any discussion on where the presumptive legitime should be taken from, it is most likely presumed that when they were discussing the delivery of the presumptive legitime, it flowed from a discussion of the partition, distribution and liquidation of the conjugal properties of the spouses. One other Article that attests to this is Article 43, Section 2 of the Family Code, which states that the absolute community or the conjugal partnership, as the case may be, shall be dissolved and liquidated . . .

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Hence when Articles 50 and 52 of the Family Code provide that the liquidation, partition and distribution of the properties of the spouses and the delivery of the presumptive legitime shall be included in the final judgment of annulment and recorded in the registry of properties, it can be presumed that the Committee was thinking of the conjugal properties or the absolute community, whichever is applicable for the particular marriage that is being annulled. If the conjugal partnership is the system prevailing in the marriage being annulled, the Committee could not have intended that a parent should be forced to prematurely part with his/her inherited or exclusive property during his lifetime in order to provide for the presumptive legitime of the children. This could result in the children being in a better financial position than the parent, who may suffer financial reverses in their later years and would have no more assets to fall back on, simply because they have delivered the presumptive legitimes of their children from their exclusive or inherited properties. The real intent of the framers of the Family Code in providing for the delivery of the presumptive legitime from the conjugal properties of the spouses was to provide for the children of the first marriage from the conjugal properties of the parents so that in the event one parent enters into another marriage, the children from the prior or first marriage would not be prejudiced in their ultimate successional rights. When a parent marries for another time and the properties from the first marriage are commingled with the properties acquired during the second marriage, because there was no delivery of the presumptive legitime, the children from the first marriage would be greatly prejudiced if the children of the second marriage get to inherit from properties which were acquired during the first marriage.119 Hence, if the spouses have not acquired any conjugal property,

be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties.

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there would be no presumptive legitime to deliver to the common child. The presumptive legitime must be given to the common child either in cash, property or sound securities. The child, his guardian or the trustee of his property, can ask the court to compel his parents to deliver to him the presumptive legitimes by enforcing the final judgment, if the parents shall have failed or refused to deliver his presumptive legitime. What is given, however, to the child as his presumptive legitime will be considered as advances on his legitime which he will inherit as a compulsory heir from his parents upon the latters death. The reason for the presumptive legitime During the Senate hearing on the Family Code on January 27, 1988 before the Committee on Women and Family Relations, Justices JBL Reyes and Puno explained the reason for the delivery of the presumptive legitime to the children: JUSTICE REYES. xxx xxx May I point out that the reason for this was to protect the legitime of the children against the result of subsequent marriages that might be contracted after an annulment or its declaration as void. You will notice that the question of its being a presumptive legitime is expressed in the Code. It is not a real legitime and, of course, if he is incapacitated to have any legitime at all at the time of the transmission that is an objection that will be raised by the transferor and can be decided by the court. Second point: Assuming that he has received a presumptive legitime and the transferee becomes incapacitated to receive, it is a matter of recovery of the property that has been transmitted to him, or its value, since the legitime anyway is a matter of values and not of specific property. MR. PUNO. xxx xxx Well, this is not a new phrase: This is not a new provision. It is contained in the Civil Code of 1950 and even in the Spanish Code. It is contained in Article 201, for instance, of the present Civil Code of 1950 where in the case of absolute community the law excludes from the community, among others, a portion of the property of either of the presumptive legitime of the children by the former marriage.

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Now, the term presumptive legitime is exactly what it is, it is a presumption. It is not actual legitime. Actual legitime is that which is present at the time of death. Now, since the parties are still alive, we can only presume what legitime is, what is the basis of the presumption? The basis of the presumption is that properties of the persons involved at the time of this particular situation arises would be the same as when he dies which is not a fact. Because these properties may increase or they may decrease or they may disappear. But the point is, certain persons have to be protected. In the case of the system of absolute community when the two parties to the marriage merge their properties, the law looks forward. It is possible that there have been children by a former marriage. If you do not exclude the presumptive legitime, then the children of the first marriage will be at a disadvantage because they will have to share that part which should have belonged to them, to one of the children of the second marriage. That is why in the present Code, in a system of absolute community, we exclude that presumptive legitime. Meaning, that property which would have belonged to the children, if there had been death at this moment. But there is no doubt; the parties are still alive. So therefore, we can only presume. That is the same theory insofar as the Family Code is concerned. We except this, we exclude this, as presumptive legitime, meaning that we assumed that if he died at this moment, this would have been the legitime of the children, but they have to be protected for the time being. Thats why we set aside the property. xxx xxx120 Thus, it is clear that the enactment of the presumptive legitime is to protect the legitime of the children against the result of subsequent marriages that might be contracted after an annulment or its declaration as void. The protection is made by excluding that part of the community or conjugal property of the first marriage which under the law is part of those which are to be given to

122

Sec. 22(a), Rule on Declaration of Absolute Nullity of Void Marriages and

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compulsory heirs upon the death of the person whose succession is under consideration from being merged into the properties of the parties of the subsequent marriages. And since the person, a part of whose property is considered legitime, is still alive, the property is called presumptive legitime. Justice Puno explains this as follows: Now, the term presumptive legitime is exactly what it is, it is a presumption. It is not actual legitime. Actual legitime is that which is present at the time of death. Now, since the parties are still alive, we can only presume what legitime is, what is the basis of the presumption? The basis of the presumption is that properties of the persons involved at the time of this particular situation arises would be the same as when he dies which is not a fact. Because these properties may increase or they may decrease or they may disappear. But the point is, certain persons have to be protected. The basis of the presumption is the properties which the persons involved have at the time this particular situation arises would be the same as when he dies which is not a fact. Because these properties may increase or they may decrease or they may disappear. But the point is, certain persons have to be protected. In the case of the system of absolute community when the two parties to the marriage merge their properties, the law looks forward. It is possible that there have been children by a former marriage. If you do not exclude the presumptive legitime, then the children of the first marriage will be at a disadvantage because they will have to share that part which should have belonged to them, to one of the children of the second marriage. An oversight of the Civil Code Revision Committee It seems to be an oversight on the part of the Civil Code Revision Committee and the Family Code Committee that they did not provide presumptive legitimes for the children of the second marriage terminated by the recording of the affidavit of reappearance of the absentee-spouse in the civil registry of the residence of the spouses of the second marriage as it did provide for the children of judicially annulled or declared void marriages. The children of the second marriage in the first case are similarly situated as those in

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the second case and it is of judicial notice that when a marriage fails, it is usually the children who suffer the most. If the reasons for not providing presumptive legitimes to children born of the second marriage terminated by the reappearance of the spouse of the first marriage are because of the absence of court proceedings and that ordinary persons not conversant with the law cannot determine the presumptive legitimes of the common children, then why did they not provide for a procedure by which a lawyer can draw up a document which will determine the presumptive legitimes for the children of the second marriage? Compulsory compliance with Articles 50 and 51 To ensure compliance with the provisions of Articles 50 and 51, Sec. 19 of the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages121 provides that if the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. The Procedure under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages Distinction between decision and decree of annulment of marriage Under Sec. 19(1) of the Rule, if the court renders a decision granting the petition, it shall declare in said decision that it shall issue the decree of annulment of marriage only after the parties shall have complied with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. Such requirement effectively distinguishes the judicial decision from the judicial decree of annulment of marriage. A judicial decision follows after the trial when the court declares that the case is deemed submitted for decision after all the parties

Annulment of Voidable Marriages. 123 Sec. 23(a), Rule on Declaration of Absolute Nullity of Void Marriages and

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have submitted their respective evidence and the court has admitted them. It may be in favor of the petition or may be against the petition. But under the Rule, such decision is not yet the decree of annulment of marriage. But for the court to issue the decree of annulment of marriage, the following have to be complied with: 1. Registration of the entry of judgment granting the petition for annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; 2. Registration of the approved petition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located; and 3. The delivery of the childrens presumptive legitimes in cash, property, or sound securities.122 Registration of the decree, a duty The petitioner, who is able to obtain a favorable judgment, has to register the decree of annulment of marriage within thirty days from receipt thereof with the Civil Registry where the marriage was registered, in the Civil Registry where the Family Court is located, and in the National Census and Statistics Office.123 When the decree has to be published; registered decree, best evidence Where the service of summons on the respondent was made by publication, the petitioner has to cause the publication of the decree of annulment of marriage once in a newspaper of general circulation.124 The registered decree of annulment is the best evidence to prove the annulment of marriage and shall serve as notice to third persons concerning the properties of the petitioner and the respondent as well as the properties or presumptive legitimes delivered to the common children.125

Annulment of Voidable Marriages. 124 Sec. 23(b), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 125 Sec. 23(c), Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages. 126 Art. 165, Family Code.

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Effect of death of a party on the petition for annulment If a party dies at any stage of the proceedings but before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of the estate in proper proceedings in the regular courts. If a party dies after the entry of judgment, it shall be binding on the parties and their successors in interest in the settlement of the estate in the regular courts. Duties of the former spouses Art. 52. The judgment of annulment or of absolute nullity of marriage, the partition and distribution of the properties of the spouses, and the delivery of the childrens presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Art. 53. Either of the former spouses may marry again after complying with the requirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void. (n) It is the obligation of the former spouses to record or cause to be recorded the final judgment of annulment or absolute nullity of the marriage in the appropriate civil registry. It is submitted that the appropriate civil registry is the office of the local civil registrar where they had their marriage registered. The appropriate registries of property where the partition and distribution of the properties of the spouses, and the delivery to the children of their presumptive legitimes are to be recorded are the registry of deed where the spouses and the children habitually reside if the property is personal; if the property is real, then the appropriate registry of deeds is the registry of deeds where the property is located. Effects of the recording The recording of the final judgment, the partition and distribution of the properties of the former spouses, and the delivery to the

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children of their presumptive legitimes has the following effects: 1. Third persons are deemed to have been notified of the final judgment, the partition and distribution of the properties of the spouses and the delivery of the presumptive legitimes of the children, and 2. The former spouses can now remarry, if they want to. Compliance with Art. 52 is a conditio sine qua non for former spouses to be able to remarry, i.e., to contract a valid subsequent marriage with another. Non-compliance with Art. 52 means that the former spouses have no legal capacity to enter into a valid subsequent marriage. Status of children conceived or born before final judgment of annulment or declaration of nullity Art. 54. Children conceived or born before the judgment of annulment or absolute nullity of the marriage under Article 36 has become final and executory shall be considered legitimate. Children conceived or born of the subsequent marriage under Article 53 shall likewise be legitimate. Under this article only those children conceived or born before the judgment declaring a marriage an absolute nullity due to psychological incapacity and those conceived or born out of a void marriage for non-compliance with Art. 52 are legitimate. Children born of void marriages due to causes or grounds other than psychological incapacity and non-compliance with Art. 52 are illegi-timate.126 Children conceived or born before the judgment annulling a marriage becomes final are legitimate since voidable marriages are valid or legitimate until annulled. Damages in marriages annulled or declared null and void Article 91 of the Civil Code, which provides for damages in

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marriages judicially annulled and declared null and void from the beginning, does not appear in the Family Code. Art. 91 provides: Damages may be awarded in the following cases when the marriage is judicially annulled or declared void from the beginning: (1) If there has been fraud, force or intimidation in obtaining the consent of one of the contracting parties; (2) If either party was, at the time of the marriage, physically incapable of entering into the married state, and the other party was unaware thereof; (3) If the person solemnizing the marriage was not legally authorized to perform marriages, and that fact was known to one of the contracting parties, but he or she concealed it from the other; (4) If a bigamous or polygamous marriage was celebrated, and the impediment was concealed from the plaintiff by the party disqualified; (5) If in an incestuous marriage, or a marriage between a stepbrother and a stepsister or other marriage prohibited by Article 82, the relationship was known to only one of the contracting parties but was not disclosed to the other; (6) If one party was insane and the other was aware thereof at the time of the marriage. However, it is submitted that under the general principles enunciated in Articles 20 and 21 of the Civil Code, the innocent party can still seek damages from the party in bad faith although said Article 91 was not retained in the Family Code. Art. 20 of the Civil Code reads: Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21 of the Civil Code is as follows: Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good

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customs or public policy shall compensate the latter for the damage.

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TITLE II. LEGAL SEPARATION


Concept of legal separation Divorce may be absolute or relative. In absolute divorce the marital bond is dissolved, freeing the spouses to marry another if they so desire. In relative divorce, the marital bond is not dissolved although the spouses are freed from their obligation to live together and render mutual help and support. In absolute divorce, there is freedom a vinculo matrimonii (from the bond or chain of marriage); in relative divorce, freedom a mensa et thoro (from board and bed). As the Supreme Court expresses it in one case, relative divorce is quoad thorum et mutuam habitationem, and absolute divorce is quoad vinculum. Legal separation is relative divorce. The draft of the Civil Code provided absolute and relative divorce. However, during the discussion of said draft in Congress, the congresswomen suggested that the provisions on absolute divorce be eliminated and the term relative divorce changed to legal separation. The Family Code retained the term legal separation.1 Legal separation, therefore, may be defined as the judicial approval of the separation of the spouses from bed and board after the court has ascertained the existence of a legal cause therefor, thus freeing them from their obligation to live together and to render mutual help and support, without dissolving the marital bond.2 However, it is within the prerogative of the court to order the guilty spouse to give support to the innocent one who is in need of such support, specifying the terms thereof in its order.3

Tolentino, 1990 reprint, op. cit., p. 313. Cf. Art. 63(1) and second sentence of Art. 198, Family Code. 3 Art. 198, Family Code.
1 2

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Legal separation and separation of property Although both legal separation and separation of property need judicial approval, the former involves the separation of both the persons and properties of the spouses,4 freeing them from their marital obligation to live together and render mutual help and support, although the court may order the guilty party to give support to the innocent one when it sees that the latter needs the support, specifying the terms thereof in its order; whereas, the latter involves only the separation of their properties and do not free the spouses from their marital obligation to live together and render mutual help and support. The spouses may actually be living together. Thus, a judicial decree of legal separation includes separation of property as a necessary consequence but that of separation of property does not include legal separation. Another difference is that the court can approve legal separation only on any of the grounds enumerated by Art. 55 and that such legal ground or grounds, alleged by the spouse seeking legal separation, really exist. On the other hand, the court can approve the separation of property between spouses even if the only cause thereof is the desire of the spouses to have separate properties.5 This is called voluntary separation of property. An involuntary separation of property is when one spouse seeks approval from the court a separation of property for any of the causes enumerated by Art. 135 of the Family Code. Legal separation and separation de facto It is a fact of life that many spouses are separated, each living his own life apart from the other, without the stamp of a judicial approval. This is called separation de facto. The question is whether, under the Family Code, agreements by the spouses to lead separate lives without any interference (walang pakialaman) from the other is valid. Most authors answer that such an agreement is invalid, citing as their authority Panganiban v. Borromeo.6 Dr. Tolentino proffers
4 In the Matter of Voluntary Dissolution of Conjugal Partnership of Jose Bermas, Sr. and Pilar Bermas, 14 SCRA 327 and Lacson v. Lacson, 24 SCRA 837, cited by Sempio-Diy, op. cit., p. 192. 5 Art. 134, last sentence, Family Code. 6 58 Phil. 367; actually what the written agreement contains is that the husband can have a concubine and the wife can live in adulterous relationship with another

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the opinion that with the repeal of Title VII under which Article 221 is found, an agreement to live separate lives between spouses is valid. As usual, his opinion is backed up by authorities. Here is how Dr. Tolentino presents his argument favoring the validity of agreement to live separate lives between spouses: The rule making such agreements void, which comes from canon law, has been severely criticized, because there is no reason of public policy which is opposed to the legality of an amicable agreement of separation (1 Colin & Capitant 493). If by the acquiescence of the husband, the wife can acquire a separate domicile, there is no reason why separation cannot be made expressly. Such agreements do not contravene public policy (Keezer, Marriage and Divorce, sec. 257, and cases cited). Prior to the enactment of the Civil Code, such agreements were recognized as valid in this jurisdiction (Guillera v. Perez, 43 Off. Gaz. 5121). With the repeal of Article 221 under Title VII of the Civil Code, and the omission from the Family Code of a similar provision, the rule prior to the Civil Code is restored, and such agreements are again valid.7 It is submitted that an agreement to live separate lives between spouses is void, being against public policy, with all due respect to Dr. Tolentino. The Constitution, the Family Code, and jurisprudence lay down a uniform policy on marriage the foundation of the family and an inviolable social institution which the State should protect. The Constitution lays down the following policy on marriage: Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.8
man. The case where there is an actual written agreement to live separately, renouncing their rights and obligations, authorizing each other to remarry, renouncing any action they may be entitled to, and promising not to be a witness against each other, is found in Biton v. Momongan, Per Rec. No. L-2555, Sept. 3, 1935, en banc, 62 Phil. 7. 7 Tolentino, 1990 Reprint, op. cit., p. 314. 8 Sec. 2, Art. XV, Constitution. 9 Buccat v. Buccat, supra.

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The Family Code looks at marriage as . . . 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 . . . The jurisprudence, from Goitia v. Campos Rueda to the relatively recent Domingo v. Court of Appeals, et al., expresses basically the same thought marriage is a very sacred institution. It is the foundation on which society rests.9 It is a relation for life and the parties cannot terminate it at any shorter period by virtue of any contract they may make. The reciprocal rights arising from this relation, so long as it continues, are such as the law determines from time to time, and none other. When the legal existence of the parties is merged into one by marriage, the new relation is regulated and controlled by the state or government upon principles of public policy for the benefit of society as well as the parties.10 So crucial are marriage and family to the stability and peace of the nation that their nature, consequences, and incidents are governed by law and not subject to stipulation. As a matter of policy, therefore, the nullifi-cation of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect and nothing more. Were this so, this inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed.11 Precisely because marriage is the foundation of the family and an inviolable social institution that the Supreme Court condemned, in a case, the written agreement between the spouses to separate, to renounce their rights and obligations, to authorize them to remarry, to renounce any action to which they may be entitled, and
Goitia v. Campos Rueda, supra. Domingo v. Court of Appeals, et al., supra. 12 Biton v. Momongan, supra.
10 11

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to promise not to be a witness against the other, even before the present Constitution under which the State has the duty to protect marriage, and subjected the notary public to a disciplinary sanction for notarizing the written agreement of the spouses.12 History of divorce in the Philippines During the Spanish regime, the only allowable kind of divorce was legal separation under Leyes de Siete Partidas. Although Las Leyes Provisionales del Matrimonio repealed the Partidas in 1870, which, in turn, the Spanish Civil Code repealed on December 8, 1889,13 legal separation remained the only kind of divorce obtainable during the Spanish regime. Then on March 11, 1917, the Philippine Legislature enacted Act No. 2710 which allowed absolute divorce on two grounds, namely, adultery by the wife and concubinage by the husband. Conviction of either of the grounds was a requirement for the court to grant the divorce.14 The Supreme Court describes this law as follows: On March 11, 1917, Act No. 2710 of the Philippine Legislature, relating to the subject of divorce, became effective in the Philippine Islands. This enactment introduced the radical innovation of causing divorce to operate, after the expiration of one year from the date of the degree, as dissolution of the bonds of matrimony. Another feature of the same Act. . . is a provision to the effect that a petition for divorce can only be filed for adultery on the part of the wife or concubinage on the part of the husband and cannot be granted except upon conviction of the guilty party in a criminal prosecution (Secs. 1, 8).15 Then came the Japanese occupation. On March 25, 1943, pursuant to the authority conferred on him by the Commander-in-Chief of the Imperial Japanese Forces in the Philippines and with the approval of the latter, Jorge Vargas, the Chairman of the Philippine Executive Commission, promulgated a New Divorce Law, ExecuSy Joc Lieng v. Encarnacion, G.R. No. 4718, March 19, 1910. Valdez v. Tuason, G.R. No. 14957, March 16, 1920. 15 Ibid. 16 Baptista v. Castaeda, Adm. Case No. 12, April 6, 1946.
13 14

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tive Order No. 141, which repealed Act No. 2710 of the Philippine Legislature and provided ten grounds for absolute divorce. When the American forces was liberating the Philippines from the Japanese, General Douglas MacArthur, as the Commander-inChief of the Central Philippine Attack Force of the United States Armed Forces, issued the following proclamation on October 23, 1943 at Tacloban City, Leyte, then the provisional seat of the Philippine Commonwealth Government, to wit: 1. That the Government of the Commonwealth of the Philippines is subject to the supreme authority of the Government of the United States, the sole and only government having legal and valid jurisdiction over the people in areas of the Philippines free of enemy occupation and control; 2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the Philippines free of enemy occupation and control; and 3. That all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control.16 With that proclamation, E.O. No. 141 ceased to have any legal effect and Act No. 2710 was revived among all other laws of the Commonwealth. Thus from October 23, 1943 to August 29, 1950, the divorce law was that of Act No. 2710.17 On August 30, 1950, R.A. No 386, otherwise known as the Civil Code of the Philippines, took effect,18 repealing Act No. 2710. From thereon, only relative divorce or legal separation has been allowed in the Philippines. Under the Civil Code, legal separation can be granted on three grounds, namely, adultery by the wife, or
17 Vd. Valdez v. Tuason, supra, where the minority led by J. Avancea opined that R.A. No. 2710 did not repeal the law on relative divorce so that there were relative and absolute divorce laws in the Philippines during that time. 18 Lara v. Del Rosario, 94 Phil. 778. 19 Art. 97, Civil Code.

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concubinage by the husband, and attempt by one spouse against the life of the other. 19 Changes introduced by the Family Code Although the Family Code adopts the concept of legal separation of the Civil Code, it, however, introduces some changes: 1. It eliminates adultery by the wife and concubinage by the husband as grounds for legal separation, replacing them with sexual infidelity by either spouse, an act intended to put the wife in par with the husband; 2. It adds seven more grounds for its grant; 3. It eliminates the one-year-residence requirement for the one filing the action for legal separation by not re-enacting Art. 99 of the Civil Code;20 4. It eliminates the requirement that only the innocent spouse can file a legal separation by not reproducing Article 100 of the Civil Code;21 5. It enacts a legal provision not found in the Civil Code which requires the spouses, who reconcile after one of them has filed an action for legal separation, to file a joint manifestation of reconciliation under oath with the court. Does it mean now that any of the spouses, including the offending one, can file a petition for legal separation? It would seem now that any of the spouses can file an action for legal separation. If the offending spouse files an action for legal separation based on what he himself has committed, the principle of in pari delicto cannot apply as he is not pointing any accusing finger to the innocent spouse. In fact, he is accusing himself of committing the offense which is the ground for his petition for legal separation.22 Grounds for legal separation Separation, the petition for legal separa20 Under Sec. 2(c) of the Rule on Legal
tion shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing or in the case of a non-resident respondent where he may be found in the Philippines, at the election of the petitioner. 21 Cf. Art. 254 of the Family Code. 22 Under Sec. 2(a) (1) of the Rule on Legal Separation, only the husband or the wife can file the petition for legal separation within five (5) years from the occurrence of any of the grounds for legal separation. 23 Under noscitur a sociis, one can ascertain the meaning of a word used in

Art. 55

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Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purpose of this Article, the term child shall include a child by nature or by adoption. (97a) Repeated physical violence and grossly abusive conduct Websters New World Dictionary defines violence as the physical force used so as to injure or damage. Blacks Law Dictionary (Abridged 5th Edition) defines violence as an unjust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury. Thus, repeated physical violence means the unjust or unwarranted exercise of force by a spouse against the other spouse or their common child or the child of the other spouse, repeatedly. How often should the violence against the other spouse, common child or the other spouses child be made to qualify it as a

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ground for legal separation? The Supreme Court has no opportunity yet to define repeated physical violence. However, it is submitted that repeated physical violence must reveal a tendency or habit in the abusing spouse to qualify the violence as a ground for legal separation. This is because it is grouped with conduct which denotes behavior or a characteristic way of acting in relation to others.23 It connotes a habitual way of acting. So that if the repetition of the violence does not reveal a tendency or habit of the abusing spouse to violence, as, for example, in his twenty years of marriage, he had slapped his nagging wife only twice to stop her from nagging him further, such repetition of violence cannot qualify as a ground for legal separation. It does not reveal a tendency or habit of the husband to violence. Of course, if he slaps his wife more often than not whenever they argue, he is showing his tendency or proneness to violence which is a ground for legal separation. Although a husband may not be prone to violence, he may still be grossly abusive in his conduct towards his wife, a common child or his wifes child. Websters New World Dictionary describes abusive as abusing, mistreating, insulting, scurrilous. Abuse, according to Blacks Law Dictionary, is everything which is contrary to good order established by usage; departure from reasonable use; immoderate or improper use; physical or mental maltreatment; to wrong in speech, reproach coarsely, disparage, revile, or malign. And gross is flagrant, very wrong, coarse, vulgar, or obscene. So that grossly abusive conduct means flagrant24 behavioral maltreatment by one spouse of the other spouse, or their common child or the child of the other spouse. Such conduct or behavior is a ground for legal separation. It is submitted that the two grounds under No. 1 of Article 55 is different in that the first refers to physical violence, whereas the other, to verbal, mental or psychological abusive behavior. A husband who often shames his wife in front of others is exhibiting grossly abusive conduct. If he slaps or boxes her, more often than not,

a statute by considering the company in which it is found and the meaning of the terms which are associated with it. 24 Some of its synonyms are glaring, brazen, scandalous, shocking, blatant, indecent, shameless. 25 Art. 202, Revised Penal Code. 26 Reyes, Luis B., op. cit., p. 826.

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whenever they quarrel in the secrecy of their bedroom or elsewhere, away from the public eye, he is guilty of repeated physical violence. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation A spouse exerts the physical violence or moral pressure on the other for the sole purpose of coercing him into changing his religious or political affiliation. Religious affiliation or political affiliation refers to membership of a religious sect or a political party. When the husband subjects his wife to a beating so she would changed from being a member of Iglesia ni Cristo to a member of the Church of Ang Dating Daan, he is guilty of physical violence to compel his wife to change her religious affiliation. There is moral pressure to change religious affiliation when a husband, a Roman Catholic, has been giving his wife the silent treatment so she would change from being a Baptist to being a Roman Catholic. Moral pressure to change political affiliation occurs when a wife has been refusing to have sexual intercourse with her husband until the latter would agree to vote for the candidates of the Partido ng Masang Pilipino. Attempt of respondent to corrupt or induce the petitioner, a common child, or child of the petitioner, to engage in prostitution, or connivance in such corruption or induce-ment There are two acts in this legal ground, existence of one being a sufficient ground for legal separation, namely, (1) mere attempt by a spouse to corrupt or induce the other spouse, a common child or a child of the other spouse, to engage in prostitution, or (2) the connivance of a spouse with another persons attempt to corrupt or induce the other spouse, a common child or a child of the other spouse, to engage in prostitution. As prostitution can be committed only by a woman under the law,25 this ground can be committed only by the husband insofar as attempting to corrupt or induce, or conniving with another person in corrupting or inducing his wife to engage in prostitution. However, a wife can also be guilty of attempting to corrupt or induce a common child (daughter) or a child (daughter) of her husband, or in conniving with another person in corrupting or inducing her (her own daughter or that of her husband) to engage in prostitution.
27

Art. 56(1), Family Code.

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The primary objective of the corruption or inducement or the connivance in such corruption or inducement by the spouse is for the other spouse, a common child or a child of the latter, to engage in prostitution. If the primary purpose is not for prostitution, as, for example, the husband seducing a common child or a child of the wife simply for his own pleasure, this would not fall under this category but on the category of grossly abusive conduct, it is submitted. If the attempt succeeds and the wife, the common child or the child of the other spouse, becomes corrupted or is induced to engage in prostitution, it is submitted that there is still a ground based on attempt to corrupt or induce or connivance in such corruption or inducement. This is so because if mere attempt is a ground, there is more reason to apply the ground if the attempt becomes successful. For if the law punishes an attempt to corrupt or induce to engage in prostitution, the more reason would it punish if the attempt or inducement succeeds. However, besides this ground becoming available for legal separation, the offending spouse can also face the criminal charge of being a principal by induction for the crime of prostitution under Article 202 in relation to no. 2 of Article 17 of the Revised Penal Code. If he has connived, then he can be charged of being a principal by induction through conspiracy. An adopted child of the spouses or of a spouse is included in the term child by expressed provision of Article 55 of this Code. The reason is clear. An adopted child is legally the child of the spouses or the other adopting spouse. Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned The spouse, against whom this ground is invoked for legal separation, must have been charged of a crime with an imposable penalty of imprisonment of more than six years, tried, found guilty, and then sentenced to imprisonment of more than six years. The judgment or decision finding him guilty of the crime he was charged of becomes final when no appeal thereof has been made within the reglementary period, or, if appealed, the remedies to overturn the judgment have already been exhausted and the judgment still imposes an imprisonment of more than six years. Pardon is an act of grace proceeding from the power entrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for the crime he has committed.26 In the Philippines, only the president has the power to pardon a convict. But a presidential pardon will not be

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an obstacle to the grant of legal separation based on this ground. The reason may be that pardon does not erase the fact that the person on whom the pardon is bestowed is still a convicted criminal. However, if it is the offended spouse who grants the pardon, he can longer use this ground for legal separation.27 To prove this ground, the petitioning spouse will only have to submit to the court the judgment of conviction and the proof that such has become final. Drug addiction or habitual alcoholism of the respondent Under this ground, the offending spouse is suffering from either drug addiction or habitual alcoholism. Both are dependence of the body and mind on things which would destroy the personality and character of the offending spouse. Drug addiction is the dependence of the offending spouse on some dangerous drug. Habitual alcoholism is the dependence of the offending spouse on alcohol. Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, defines drug dependence as a state of psychic or physical dependence, or both, on a dangerous drug, arising in a person following administration or use of that drug on a periodic or continuous basis.28 It classifies dangerous drug into prohibited and regulated. Prohibited drug embraces those with physiological effects of a narcotic or a hallucinogenic drug, examples of which are opium and its active components and its derivatives such as heroin and morphine, coca leaf and its derivatives, principally cocaine, alpha and beta cocaine, mescaline, lysergic acid diethylamide (LSD) and other substances producing similar effects, Indian hemp (marijuana) and its derivatives, and all preparations made from any of the foregoing, and other drugs and chemical preparations, whether natural or synthetic, with the physiological effects of a narcotic or a hallucinogenic drug.29 Regulated drug embraces those which are self-inducing sedatives and those with hypnotic effect. Examples of self-inducing

Sec. 2(g), Article I, R.A. No. 6425, as amended. Sec. 2(e)(1), Article I, R.A. No. 6425, as amended. 30 Sec. 2(e)(2), Article I, R.A. No. 6425, as amended.
28 29

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sedatives are secobarbital, phenobarbital, pentobarbital, barbital, amobarbital, and other drug which contains a salt or a derivative of a salt of barbituric acid, any salt, isomer or salt of an isomer, of amphetamine, such as benzedrine or dexedrine, or any drug which produces a physiological action similar to amphetamine. Examples of hypnotic drugs are methaqualone, nitrazepam or any other compound producing similar physiological effects.30 A person suffering from habitual alcoholism is a drunkard. In U.S. v. McMann,31 the Supreme Court explains what a drunkard is: The exact degree of intemperance which constitutes a drunkard may not be easy to define, but speaking in general terms, and with the accuracy of which the matter is susceptible, he is a drunkard whose habit is to get drunk, whose inebriety has become habitual. To convict a man of the offense that he is a common drunkard, it is, at the least, necessary to show that he is a habitual drunkard. Indeed the terms drunkard and habitual drunkard mean the same thing. If the offended spouse comes to know of the drug addiction or habitual alcoholism of the other spouse after marriage, which the latter has had even prior to the marriage, because the offending spouse had deliberately concealed such a physiological and/or psychological dependence from the former, he can ask the court for the annulment of the marriage based on fraud.32 Lesbianism and homosexuality of the respondent Lesbianism is homosexuality between women. A homosexual is one who has sexual desire for those of the same sex. Homosexual is usually used to refer to male homosexual, while lesbian to female homosexual. It is submitted that unless a spouse actually engages in homosexuality, this ground cannot be availed of by the normal or heterosexual spouse because there can only be an offended spouse if there is an offending spouse.

31 4 Phil. 565, cited by Pineda, Ernesto L., Legal Separation in the Philippines, 1994 Ed., p. 26. 32 Cf. Art. 46(4) of the Family Code. 33 Cf. Art. 46(4) of the Family Code. 34 Reyes, op. cit., Book II, p. 906. Cf. Article 349 of the Revised Penal Code.

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Where the lesbianism or homosexuality of one spouse becomes known to the other spouse only after marriage because the lesbian or homosexual spouse had successfully hidden it from him or her, the offended spouse can file an annulment of marriage based on fraud.33 Contracting a subsequent bigamous marriage A bigamous marriage is one which is contracted by an already married person and could have been valid and legal were it not for the fact that the person is already legally married to another. A marriage is bigamous if it has all the following elements: (1) The offender is legally married, (2) His marriage has not been legally dissolved or, in case his spouse is absent, the absent spouse could not yet be presumed dead according to the Family Code and he has not obtained a judicial decree of the presumptive death of the absent spouse, (3) He contracts a second or subsequent marriage, and (4) The second or subsequent marriage has all the requisites of a valid marriage.34 The bigamous marriage of the offending spouse need not be proved in a criminal action. The offended spouse can prove it even in the action for legal separation. Of course, if there is already a conviction of bigamy, the final judgment of conviction can just be presented to the court in the legal separation case. Sexual infidelity or perversion Sexual infidelity means any sexual act by a spouse with a person other than his spouse, either of the same or opposite sex. This term includes acts of homosexuality or lesbianism. Besides adding eight more grounds for legal separation, the Family Code differs from the Civil Code in its obvious intent to put women on equal footing with men. By replacing adultery of the wife and concubinage of the husband by sexual infidelity or perversion by either spouse as a ground for legal separation, the Family Code puts the wife on equal footing with her husband. Under the Civil

35 In the desire of the Family Codes drafters to pull up women into the level of men, it has failed to observe that it fails to put men on equal footing with women

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Code, an adultery by the wife is a ground for the husband to seek legal separation while the wife can seek legal separation if the husband has committed concubinage. But the two are quite unequal: adultery can be committed by a wife even if she had only one sexual intercourse with a man other than her husband; concubinage can be committed only if any of the three ways is present, namely, (1) maintaining a mistress in the conjugal dwelling, (2) sexual intercourse with another woman under scandalous circumstances, or (3) cohabiting with another woman in any other place. The first two ways are quite uncommon here in the Philippines. The third way, to cohabit with another woman, has been construed as to dwell or live together in the same house as husband and wife. A husband can have sex with many women other than his wife, or with a woman other than his wife, many times without committing concubinage. The Family Code ends this disparity. Now, any sexual infidelity committed by a husband can be a ground for legal separation. 35 However, Dr. Arturo Tolentino gives the following sage observation on the change made by the Family Code: The distinction under the Civil Code was not, however, entirely unjustified. In the first place, there may not, from the social standpoint, be equality in the injury to feelings of the husband and of the wife caused by the infidelity of the other spouse. If a husband commits an act of sexual infidelity, the offended wife usually becomes the object of sympathy from friends. On the other hand, if a wife becomes unfaithful, the husband becomes an object of ridicule; this is insult and injury combined. But a more serious reason for the distinction in the Civil Code can be found in the natural differences in physiology and biological functions between man and woman. It is the woman who has the childbearing function. When a child is born in the marriage of a husband and a wife who have access to each other, the offspring will be presumed their legitimate child. But if a husbands sexual infidelity results in a child born to the other

in No. 3 of Art. 55 since only women can be victims thereof. 36 UST Law Journal, March 1988 issue, pp. 5-6, cited by Pineda, op. cit., p. 33. 37 Pineda, op. cit., p. 34.

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woman, that child is outside the family and has no rights in relation to the offended wife. If the wifes sexual infidelity produces an offspring, the child will be inside the family and will have the rights of a legitimate child of the husband. The husband sees the evidence of his wifes infidelity everyday in his home, gives it his surname, spends for its support and education, and must give it successional rights. Certainly, the positions of an offended husband and an offended wife, in this regard, are not the same. Their recourse to legal separation, however, is the same under the new Family Code. This is a case of equal remedy for unequal injury, in the name of equality in status.36 Sexual perversion is abnormal sex. A man or a woman having sex with an animal is sexual perversion and punishable by death under the Bible. Psychologists consider sadism, sex mania, sodomy, exhibitionism, fetishism, compulsive voyeurism as sexual perversions.37 Attempt by the respondent against the life of the petitioner The attempt in this ground should not be understood as that defined by Art. 6 of the Revised Penal Code. The attempt here should be understood as an overt act or acts made by the offending spouse with intent to kill the other spouse, whether or not all the acts of executing the intended killing (parricide) had been made. This means that the attempt to kill the spouse may either result in an attempted or frustrated parricide. As to whether or not the acts were committed with intent to kill can be ascertained from the acts themselves. Where, the husband aimed his gun at the head of his wife and pulled the trigger but the gun did not fire because it jammed, there was a clear intent by the husband to kill the wife. Where the wife pulled a gun from the drawer and aimed it at her philandering husband, shouting again and again, Ill kill you if Ill catch you again with another woman! and then she aimed the gun at the roof and pulled the trigger, making her husband urinate in

38 39

Pineda, op. cit., pp. 35-36. 4 CA Rep. 168, cited by Pineda, supra.

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his pants, is clearly a case where the wife had no intention to kill but simply to put fear into her husband so he would desist from philandering further in the future. As Prof. Pineda puts it, the attempt here is an effort to kill ones spouse such as attempted or frustrated parricide.38 The attempt must also be unsuccessful. Otherwise, there can be no spouse to file the legal separation case. In Koh-Gabriel v. Gabriel,39 the Court of Appeals, citing Supreme Court decisions, laid down the following rule in determining whether there is an attempt against the life of a spouse by the other as follows: As a general rule, in determining whether there was an attempt by one spouse against the life of the other, as a ground for legal separation, the intention of the culprit must be deduced from the nature and extent of the tangible evil produced as such is almost always the palpable manifestation of his will (U.S. vs. Reyes, 36 Phil. 904), considering the difficulties in discovering intention as a tangible mental act. Such intention could only be deduced from external acts performed (underlining supplied) and when these acts have naturally given a definite result, courts of justice should not, as a general rule, hold that some other results were intended (U.S. vs. Mendoza, 38 Phil. 691). Prima facie (,) one should be presumed to have intended to do that which he actually did (People vs. Villanueva, 51 Phil. 488). Where the spouse has to take some steps to kill the other to protect his own life because the latter is trying to kill him, this ground cannot be used against the former by the latter. This is because the former is not the aggressor. His acts are simply to protect his life. For the attempt against the life of a spouse to be used as a ground for legal separation, the same must be unjustified. If justified, it cannot be availed of as a ground for legal separation.40 Abandonment of petitioner by respondent without justifiable cause Under Articles 101 and 128 of the Family Code, a spouse is

40 41

Ibid. Last sentence of Articles 101 and 128.

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deemed to have abandoned the other when he has left the conjugal dwelling without any intention of returning. And if the spouse leaving the conjugal dwelling does not return within three (3) months or has failed to give any information as to his whereabouts within the same period, there is a prima facie presumption that the spouse does not intend to return to the conjugal dwelling.41 It must be stressed, however, that this presumption does not apply to spouses whose jobs require them to be outside of the conjugal dwelling most of the time without any fixed office hours, such as soldiers, forest rangers or spies. By the nature of their jobs, their spouses are not to know their whereabouts. The Supreme Court has defined abandonment in De la Cruz v. De la Cruz42 as the act of the husband or the wife who leaves his or her consort wilfully, and with an intention of causing perpetual separation. The Supreme Court went on to say that the abandonment would result in the absolute cessation of marital relations, duties and rights. In Partosa-Jo v. The Honorable Court of Appeals, et al.,43 the Supreme Court restates the conceptual meaning of abandonment of the De la Cruz ruling as follows, a departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in the least for ones family although able to do so. There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation. The law also recognizes constructive abandonment as where one spouse, without just cause, forcibly ejects the other from their conjugal dwelling and refuses to allow her to return.44 There is also constructive abandonment when a husband denied his wife admission to their conjugal home at Dumaguete City when she returned from Zamboanguita, Negros Oriental.45 To be a ground for legal separation, the abandonment must be unjustified and for more than a year. Where the abandonment is justifiable or lasted only for a year or less, there is no ground for legal separation under this legal provision. Under Sec. 8 of the Rule on Provisional Orders,46 if a spouse
G.R. No. L-19565, Jan. 30, 1968, en banc. G.R. No. 82606, Dec. 18, 1992. 44 Orenstein v. Orenstein, N.Y.L.J., March 6, 1947, cited by Pineda, supra. 45 Partosa-Jo v. The Honorable Court of Appeals, et al., supra. 46 Resolution No. A.M. 02-11-12-SC.
42 43

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without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precuationary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. And such provisional order should be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. The ten grounds enumerated in Art. 55 are exclusive, outside of which no legal separation can be granted. Grounds for denying petition for legal separation Article 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain the decree of legal separation; or (6) Where the action is barred by prescription. (100a)

Art. 56 gives the grounds for denying a petition for legal separation, namely, (1) condonation, (2) consent, (3) connivance, (4) mutual guilt, (5) collusion, and (6) prescription. Any one of them can defeat an action for legal separation.

47 Cf. Bugayong v. Ginez, 100 Phil. 622 and Almacen v. Baltazar, No. L-10028, May 23, 1958.

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Condonation Condonation is the forgiveness or pardon of the marital offense constituting a ground for legal separation of a spouse by the other.47 It comes after the commission of the offense. For forgiveness or pardon cannot be made without the commission of an offense as there would be nothing to forgive or pardon. Thus, in People v. Schneckenburger, et al.,48 the Supreme Court differentiates pardon and consent as pardon unquestionably refers to the offense after its commission, consent must have been intended, agreeably with its ordinary usage, to refer to the offense prior to its commission. A subsequent case affirms this distinction clearly. In the case, the husband charged the wife with adultery and she invoked the defense of pardon or condonation by her husband against such charge.49 The Supreme Court brushed aside her defense, citing Viada and Groizard, with the following pronouncement, Even if the husband should pardon his adulterous wife, such pardon would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the pardon was granted, because the pardon refers to previous and not to subsequent adulterous acts. (Viada [5th ed.] Vol. 5, p. 208; Groizard [2nd ed.] vol. 5, pp. 57-58). Condonation may be express or implied.50 When the aggrieved spouse, orally or in writing, forgives his erring spouse, there is express condonation. When the forgiveness is expressed by acts indicative of pardon, other than telling or informing the offending party, such as sleeping together after knowing of the marital infidelity of the erring spouse,51 or giving money to the erring spouse and not going to the court of justice against the erring spouse despite knowing fully well the marital infidelity committed, the condonation is implied.52 It has been held, however, that the fact that the husband did not actively look for his wife when she left the conjugal home after he discovered her infidelity cannot be construed as an implied

48 G.R. No. 48183, Nov. 10, 1941, en banc. The accused Schneckenburger was being accused of concubinage but the defense of consent or pardon can successfully bar its prosecution under the Revised Penal Code. 49 People v. Zapata and Bondoc, G.R. No. L-3047, May 16, 1951, en banc. 50 Almacen v. Baltazar, supra. 51 Bugayong v. Ginez, supra. 52 Almacen v. Baltazar, supra.

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condonation for it is the duty of the wife to return home.53 And the condonation of an infidelity does not imply condonation of another one after the condonation of the previous infidelity because pardon applies to previous acts and not subsequent adulterous acts.54 Consent Consent, as a verb, is to agree, to give permission, approval or assent.55 The Supreme Court construes consent as assent in a number of cases they have decided where the term consent requires a definitive meaning as a defense against concubinage, rape or legal separation.56 It may be express or implied. When the consent is manifested through written or oral words, there is express consent. Otherwise, it is implied. The Guinucud, Schneckenburger, and Matubis cases are examples of express consent through written agreements executed prior to the commission of the acts complained of by the complainant-spouses against the defendant-spouses. The Sensano case is an example of implied consent shown through the acts of the complainant-husband towards his accused-wife. Here is how the Supreme Court appreciates the acts of the husband: After completing her sentence, the accused left her paramour. She thereupon appealed to the municipal president and the justice of the peace to send for her husband so that she might ask his pardon and promised to be a faithful wife if he would take her back. He refused to pardon her or to live with her and said she could go where she wished, that he would have nothing more to do with her, and she could do as she pleased. Abandoned for the second time, she and her child went back to her co-accused Marcelo Ramos (this was in the year 1924) and they have lived with him ever since. The husband, knowing that she resumed living with her co-defendant
De Ocampo v. Florenciano, supra. People v. Zapata and Bondoc, supra. 55 Websters New World Dictionary. 56 People v. Sensano, et al., G.R. No. 37720, March 7, 1933, 58 Phil. 73 (adultery); People v. Guinucud, et al., G.R. No. 38672, Oct. 27, 1933, 58 Phil. 624 (adultery); People v. Schneckenburger, et al., supra (concubinage); Matubis v. Praxedes, G.R. No. L-11766, Oct. 25, 1960 (legal separation with concubinage as a ground). 57 Abridged 5th Edition. 58 White v. White, NJ Eq., 95 Atl. 197, cited by Pineda, op. cit., p. 49.
53 54

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in 1924, did nothing to interfere with their relations or to assert his rights as husband. Shortly thereafter he left for the Territory of Hawaii where he remained for seven years completely abandoning his said wife and child. On his return to these Islands, he presented the second charge of adultery here involved with the sole purpose, as he declared, of being able to obtain a divorce under the provisions of Act No. 2710. From the above acts of the husband the Supreme Court made the following conclusion: Apart from the fact that the husband in this case was assuming a mere pose when he signed the complaint as the offended spouse, we have come to the conclusion that the evidence in this case and his conduct warrant the inference that he consented to the adulterous relations existing between the accused and therefore he is not authorized by law to institute this criminal proceeding. Connivance Blacks Law Dictionary57 defines connivance as the secret or indirect consent or permission of one person to the commission of an unlawful or criminal act by another; as constituting defense in divorce action, is plaintiffs corrupt consent, express or implied, to offense charged against defendant. It would seem that connivance has the same or similar import as consent. However, keeping in mind that the legislature does not group things into different categories or classes if the things are not really distinct or different, the presumption being that it places things with the same or similar characteristics in one category or class and those with different or dissimilar characteristics in another category or class, one has to conclude that connivance, being placed in a category distinct from consent, must have a different import from consent. What then is the meaning of connivance as used in Article 56? Since the Supreme Court has had no occasion yet to define connivance, let some of the authorities serve as the guide to get at what connivance may mean in Article 56.
59

Richardson v. Richardson, 114 N.Y. Supp. 668, cited by Pineda, ibid.

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A husband has the duty to protect his wife from temptation and not connive in her downfall.58 The same duty rests on the wife with respect to her husband. Thus, where a wife knew that by leaving her husband, he would seek the arms of other women, and was satisfied that while they were living together, he had kept all his obligations to her, and yet she deliberately abandoned him, her act constituted consent and connivance.59 Where a husband employed a detective to get evidence of his wifes adultery, and the adultery was brought by the detective himself, or vice-versa, resulting in the mans act of concubinage with the woman hired to lure him, there is connivance.60 To evade connivance, there must be no active participation on the part of a spouse for the downfall of the other as by providing actively the opportunity for the wrongdoing directly or indirectly (italics supplied).61 It would seem that what differentiates connivance from consent is that the conniving spouse is more actively involved in the wrongdoing, which constitutes a ground for legal separation, of the other spouse, or acting in such a way as to cause or push the latter into the commission of the wrongdoing. In contrast, the consenting spouse is more passive, his or her involvement consists merely in allowing or permitting the other to engage in the wrongdoing constituting a ground for legal separation. He does not do any act which would cause or push the other spouse to the commission of the wrongdoing. Mutual guilt Mutual guilt is also known as recrimination. This ground exists when both spouses are guilty of committing one or more of the grounds for legal separation. In law, both of them are in pari delicto, meaning both are guilty of acts constituting a ground or grounds for legal separation. When both spouses are in pari delicto, they cannot seek the courts help in getting a legal separation. The courts will leave them as they are, for the law requires that he who comes to court must do so with clean hands.

60 Rademacher v. Rademacher, 74 N.J. Eq. 570, 70 Atl. 687; Dennis v. Dennis, 68 Conn. 186, 57 Am. Rep. 95, cited by Pineda, ibid. 61 Noyes v. Noyes, 194 Mass. 20, 79 N.E. 814, cited by Pineda, ibid. 62 G.R. No. L-13553, Feb. 23, 1960, en banc. 63 Supra.

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Collusion In De Ocampo v. Florenciano62 the Supreme Court defines collusion in divorce or legal separation as the agreement between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. (Griffiths vs. Griffiths, 69 N.J. Eq. 689, 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590). In Brown v. Yambao,63 the Supreme Court defines collusion in matrimonial cases as the act of married persons in procuring a divorce by mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of (an) agreement, to defend divorce proceedings. (Cyclopaedic Law Dictionary; Nelson, Divorce & Separation, Section 500) However, the Supreme Court warns that the mere fact that the guilty party confesses to the offense of adultery, desires the divorce and makes no defense should not be taken as a sign of collusion.64 Prescription Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102a) Under Article 57 an action for legal separation shall have to be filed within five years from the occurrence of the ground. If the action is filed beyond five years from the occurrence of the ground, the court shall have to dismiss the action as being barred by prescription. In other words, prescription of an action means that the law grants a right to file a specific action to a group of persons similarly situated against those who have violated their rights within a specific time frame. Their failure to file such an action within the specific time frame automatically extinguishes their right to file the action. That actions based on violations of rights have to be filed within the period prescribed by law or they can no longer be filed, or have prescribed, is recognized by our law, specifically the Civil Code, which states that Actions prescribe by the mere lapse of time fixed by law.65
De Ocampo v. Florenciano, supra. Art. 1139, Civil Code of the Philippines (R.A. No. 386). 66 Cf. Contreras v. Macaraig, G.R. No. L-29138, May 29, 1970, where the Su64 65

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It is submitted that the Civil Code is not only more practical but is also more in accord with the spirit of public policy as expressed by jurisprudence and embodied in the Constitution with regard to the prescriptive period within which the aggrieved spouse can file the action for legal separation than the Family Code. It provides two prescriptive periods within which the aggrieved spouse should file an action for legal separation under its Art. 102. The first period consists of one year the aggrieved spouse has to file the action for legal separation within one year from the time he has come to know of the cause for legal separation, otherwise such action will be barred forever.66 The second period consists of five years within five years from the date of the occurrence of the cause for legal separation the aggrieved spouse has to file the action, regardless of whether or not he has come to know of the cause of the legal separation. Art. 102 reads: An action for legal separation cannot be filed except within one year from and after the date on which the plaintiff became cognizant of the cause and within five years from and after the date when such cause occurred. The Family Code provides only one period within which the aggrieved spouse has to file an action for legal separation. It does not take into consideration the personal knowledge of the cause for legal separation by the aggrieved spouse. So that it may happen that within one year, the aggrieved spouse has come to know of the cause but refrains from filing the action. If he will decide to file the action at the fifth year from the occurrence of the cause, he can still do so. Effect of death of a spouse during the pendency of an action for legal separation In Sy, represented by Lapuz v. Eufemio,67 the Supreme Court, through Justice J.B.L. Reyes, rules that the death of the petitioner abates an action for legal separation before the court issues its de-

preme Court construed the 1st period within which to file the action for legal separation under Art. 102 of the Civil Code. It expressly states that the period of five years from after the date when such cause occurred is not here involved. 67 G.R. No. L-30977, Jan. 31, 1972. 68 Araneta v. Concepcion, G.R. No. L-9667, July 31, 1956, en banc.

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cree. This is the explanation of the Supreme Court: An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur cum persona. . . . When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The action is absolutely dead. (Cass., July 27, 1871, D. 71. 1.81; Cass. Req., May 8, 1933, D.D. 1933, 332. [Planiol, Civil Law Treatise, Vol. 1, Part 1, pages 658-659]) Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. (1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilson v. Wilson,

69

G.R. No. L-34132, July 29, 1972.

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73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S.W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141.) The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208). Death also dissolves the marriage. And the dissolution of marriage by death ipso facto dissolves the property regime between the spouses. Liquidation of the properties, which form part of the absolute community or the conjugal partnership, follows dissolution. Under Sec. 21 of the Rule on Legal Separation, the death of a party shall have the following effect: If the death occurs prior to the entry of judgment, whether the case is in the court of origin or in the appellate court, the court concerned shall order the case closed and terminated without prejudiced to the settlement of estate in proper proceedings in the regular courts. If the death occurs after the entry of judgment, the same is binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. Effects of the filing of an action for legal separation When a petition for legal separation is filed in court, Articles 58, 59, 60, 61, and 62 come into play. Cooling-off period Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103) This article is a replica of Article 103 of the Civil Code. The court trying the separation case cannot start trying the case, that is, allow the parties to prove their respective cause or causes of action for a period of six months, to start from the filing of the petition. This six-month period the Supreme Court describes as a cooling-off period with the intent to make possible a reconciliation between the spouses. The recital of their grievances against each other in court may only fan their already inflamed passions against one another,

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and the lawmaker has imposed the period to give them opportunity for dispassionate reflection.68 The reason for this cooling-off period is also explained in Somosa-Ramos v. Vamenta, Jr., et al.69 as follows: Ordinarily of course, no such delay is permissible. Justice to the parties would not thereby be served. The sooner the dispute is resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on which the law for the best of reasons would attach the quality of permanence. That there are times when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained by one or both of the spouses. There may be constant bickering. The loss of affection on the part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow them to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more imperative. It is a mark of realism of the law that for certain cases . . . it recognizes, albeit reluctantly, that the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty party may mend his or her ways, and the offended party may, in turn, exhibit magnanimity. Hence, the interposition of a six-month period before an action for legal separation is to be tried. Cooling-off period; not a ban to hear administration, support, custody matters However, Art. 58 does not bar the courts to hear matters pertaining to the administration or management of the community or conjugal properties, the support of the spouses and the children, the custody of the children, and other matters whose very nature requires the immediate and urgent action of the court. Thus, in Somosa-Ramos the Supreme Court rules that Article 103 of the

70 71

Cited by the Supreme Court in Somosa-Ramos v. Vamenta, Jr., et al. G.R. No. L-8218, Dec. 15, 1955.

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Civil Code (now Article 58 of the Family Code) is not an absolute bar to the hearing of a motion for preliminary injunction prior to the expiration of the six-month period. It explains: That the law, however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads thus: After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except in accordance with the orders of the court (Art. 104, Civil Code). There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such six-month period. Article 104 of the Civil Code is now replaced by Article 61 of this Code which retains the first sentence of Article 104 of the Civil Code but its subsequent sentences make it very clear that the court has to act on who shall be the administrator of the community or conjugal property upon the filing of the petition for legal separation in the absence of a written agreement between the spouses. So that where there is already a written agreement between the parties as to who shall be the administrator of the community or conjugal property during the pendency of the action for legal separation, the court does not have to determine through a hearing or series of hearings who the administrator of the community or conjugal property shall be. Article 61 provides: After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court.

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Another reason is the possible injustice that may result if the determination of the custody of the children and alimony and support pendente lite would be banned during the cooling-off period. As the Supreme Court has observed in Araneta v. Concepcion: But this practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions such as the determination of the custody of the children and alimony and support pendente lite according to the circumstances. (Article 105, Civil Code) If these are ignored or the courts close their eyes to actual facts, rank injustice may be caused.70 If fact, under Section 1 of the Rule on Provisional Orders, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without hearing. These orders may be enforced immediately, with or without bond, and for such period and under such terms and conditions as the court may deem necessary. Duty of the court Art. 59. No legal separation may be decreed unless the court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) The law imposes on the court the duty to take steps toward the reconciliation of the spouses and to be fully satisfied that despite its efforts to effect such reconciliation the spouses cannot be reconciled. This may be done before, during, and after the trial but before the decree of legal separation. As long as the court is not fully satisfied that the spouses cannot be reconciled, it has to continue exerting efforts to effect reconciliation. Once it can truly say that reconciliation is improbable between the spouses, then it can cease its efforts towards reconciliation. Stipulation of facts/confession of judgment; Article 60 compared to Article 101 of the Civil Code Art. 60. No decree of legal separation shall be based upon
72

G.R. No. L-13553, Feb. 23, 1960, en banc.

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a stipulation of facts or a confession of judgment. In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a) Article 60 is a paraphrase of Article 101 of the Civil Code. Article 101 reads: No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment. In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated. Insofar as the first paragraphs of the articles are concerned, they express exactly the same thought. Courts cannot promulgate a decree of legal separation solely or mainly on stipulation of facts or confession of judgment. Thus, in De Cardenas v. Cardenas and Rien71 the Supreme Court upheld the judgment of the court of origin declaring the marriage between Leoncio Cardenas and Florencia Rien null and void ab initio because of the prior legitimate marriage between Leoncio and Eulogia Bigornia despite the stipulation of facts entered into by Eulogia and Leoncio because of the marriage certificates which the parties attached to their stipulation of facts. The marriage certificates in themselves are evidence independent of the stipulation of facts. In De Ocampo v. Florenciano72 the Supreme Court reversed the affirmation by the Court of Appeals of the dismissal by the court of origin of the petition for legal separation filed by Jose de Ocampo against his wife Serafina Florenciano. The Court of Appeals construed the conformity of Serafina to the petition of Jose and her admission of having had sexual relations with Nelson Orzame to the fiscal as confession of judgment. In reversing the resolution of the Court of Appeals, the Supreme Court gave the same reason given in the Cardenas case and then added a practical one: As we understand the article (Art. 101, Civil Code),
73

Vd. Sec. 19(b) of the Rule on Legal Separation

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it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiffs demand. This did not occur. Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendants confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it. A stipulation of facts is one where the parties stipulate or agree on the facts of the case they are litigating and on which the court will base its judgment. A confession of judgment is one where a party admits the right of the other to judgment as sought for in his complaint, either in open court or in the pleadings. There are, however, differences between the two articles. One, on the action of the court to order the public prosecutor to intervene in an action for legal separation. Under Article 101, the courts duty to ask the public prosecutor to step in starts only upon the non-appearance of the defendant in court. Under Article 60, the courts duty to ask the public prosecutor to intervene to prevent collusion and take care that the evidence is not fabricated or suppressed starts upon its acquisition of the jurisdiction of the case. Two, with respect to the public prosecutor. Under Article 101, when the court asks the public prosecutor to intervene in the legal separation case because of the non-appearance of the defendant in court, the public prosecutor must first determine the existence of collusion between the parties. After finding out that there is none, he has to actively participate in the case to see to it that no evidence is fabricated. Under Article 60, the public prosecutors duty to take steps to prevent collusion between the parties and to take care that
74

Sec. 16. Decision. . . .

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no evidence is either fabricated or suppressed starts upon the courts order for him to intervene in the action. And it continues as long as the trial of the case lasts. This recognizes the fact that there can be collusion between the parties even during the trial of the petition for legal separation. Three, the addition of suppressed, a word not found in Article 101 but present in Article 60. This is an important addition because a decree of legal separation may be obtained not only by fabricating evidence but also by suppressing evidence that may be damaging to the grant of legal separation. Further, fabricated and suppressed are ideas that compliment each other in evidence. For fabricated evidence means introducing in court as existing or factual something that is non-existent or fictitious to prove the cause or fact in issue. Suppressed evidence means the intentional failure or omission to present a fact which is relevant and material to the cause or fact in issue. A third duty of the courts is what the Rule of Legal Separation imposes on them under Sec. 16(b). Under Sec. 16(b), if the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be issued only after full compliance with liquidation under the Family Code. In effect, the Rule on Legal Separation distinguishes between the decision which grants the petition for legal separation and the judicial decree of the legal separation. It is now possible to have a decision granting the legal separation without the decree of the legal separation itself. The latter shall be issued by the court only upon full compliance by the parties of the liquidation mandated under the Family Code. It consists of the title Decree of Legal Separation under which is quoted the dispositive portion of the decision or judgment.73 However, the need for such liquidation arises only if there are community or conjugal properties. That is why the same Rule provides that in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation.74 Under Sec. 19 of the Rule on Legal Separation, the court shall issue the decree of legal separation after (1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located, and (2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located.

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The prevailing party shall register the decree of legal separation in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office within thirty days from receipt thereof. After registering the decree of legal separation, he must report to the court which issued the decree that he has already complied with his duty to register the decree with the proper government agencies as mandated by the Rule on Legal Separation.75 The registered decree of legal separation is the best evidence to prove the legal separation of the parties and shall serve as notice to third persons regarding the properties of said parties.76 Where the summons in the legal separation case was served on the respondent by publication, the prevailing party shall have to publish the decree of legal separation once in a newspaper of legal separation.77 Cessation of personal rights Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a) After the filing of the petition for legal separation in court, the spouses can now live separately. They are no longer duty bound to live together. And the court will have to appoint an administrator
(b) If the court renders a decision granting the petition, it shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code. However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal separation which shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry were where the Family Code granting the legal separation is located. 75 Sec. 20(a), Rule on Legal Separation. 76 Sec. 20(c), Rule on Legal Separation. 77 Sec. 20(b), Rule on Legal Separation. 78 Vd. Art. 145, Family Code.

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over the community or conjugal property if there is no written agreement submitted by the parties right after the filing of the petition. The court can choose either of the spouses or a third person. For this purpose it may be necessary for the court to conduct a hearing with the sole objective of determining who should be the administrator over the community or conjugal property. However, this article applies only where the property regime governing the marriage is one of absolute community or of conjugal partnership of gains. Where the property regime is one of separation of property, this article does not apply. This is clear not only because Art. 61 contains only the words absolute community or conjugal partnership property, but also because in a marriage governed by total separation of property, each spouse has the exclusive and sole administration of his property.78 The right to live separately means that the wife can now establish her own residence apart from her husband79 and the right of consortium of the spouses no longer exists. So that if a husband forces his wife to have sex with him, he is guilty of rape.80 Likewise, a wife who forces her husband to have sex with her is guilty of acts of lasciviousness, rape being a crime that can be committed against women only.81 Under the Rules of Court, specifically Rule 96, the following are the general powers and duties of guardians: 1. To pay the debts of the community or conjugal property out of the income thereof if sufficient. If not, then out of the proceeds of the sale of the real estate upon obtaining an order of its sale or encumbrance thereof.82 2. To settle all accounts, collect debts and appear in action in behalf of the community or conjugal property.83 3. To manage the community or conjugal property frugally and without waste and apply the income and profits thereof, as far as may be necessary, to the comfortable and suitable maintenance of the spouses and children, if any. If the same are insufficient, to sell or encumber real estate upon being authorized to do so, and apply the proceeds thereof as may be necessary to such maintenance.84 4. To make and render an inventory of the properties within

Sempio-Diy, op. cit., p. 88. Pineda, op. cit., p. 57; Vd. R.A. No. 8353, An Act Expanding the Definition of the Crime of Rape, Reclassifying it as a Crime against Persons, Amending the Revised Penal Code, where it is suggested that a husband can be guilty of raping his wife even
79 80

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three (3) months after his appointment, and annually after such appointment an inventory and account, the rendition of any of which may be compelled upon application of any interested person, such as the spouses or any of the children.85 5. To render an accounting report of his administration for settlement and allowance upon the expiration of a year from his appointment, and as often thereafter as may be required by the court.86 Support and custody Art. 62. During the pendency of the action for legal separation, the provision of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a) During the pendency of the action for legal separation, the court has to see to it that the spouses and the children have adequate support if the written agreement between the parties does not provide adequate provisions. There is more reason for the court to see to it that there are adequate provisions for the support of the spouses and the common children in the absence of a written agreement between the parties. Of course, if the written agreement provide adequate provisions for their support or if there are adequate provisions for the parties and their common children even in the absence of a written agreement, the court will have an easier task. If the children are minors, it has to determine who of the parents can have custody over them. Article 49 provides: During the pendency of the action and in the absence of has the right provisions in a Maria, Jr., agreement between it is adequate of consortium; Sta. written op. cit., pp. 346-349 where when he
argued that a husband can rape his wife, backed up by American judicial decisions. 81 Art. 335, Revised Penal Code. 82 Sec. 2, Rule 96, Revised Rules of Court. 83 Sec. 3, Rule 96, Revised Rules of Court. 84 Sec. 4, Rule 96, Revised Rules of Court. 85 Sec. 7, Rule 96, Revised Rules of Court. 86 Sec. 8, Rule 96, Revised Rules of Court. Cf. Rule 96, Revised Rules of Court; Pineda, op. cit., p. 59. 87 Art. 213, Family Code. 88 Cf. The discussion on Article 49 is void and voidable marriages. 89 Article 68, Family Code. 90 Article 69, Family Code.

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Art. 62

the spouses, the court shall provide for the support of the spouses and the custody and support of their common children. The court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. It shall also provide for appropriate visitation rights of the other parent. While the petition for legal separation is being heard, the court shall see to it that: 1. There are adequate provisions for the support of the contending spouses and their common child either because it finds that the written agreement between them does not adequately provide support for them and their common child or because there is no agreement, written or oral, between them as regards their support and that of their common child; 2. The custody of the common child (minor) above seven years old shall be given to the parent the child chooses to live with. If the common child is under seven years old, the mother shall get the custody of the child unless the court finds compelling reasons not to do so.87 However, before the court decides to whom to award the custody of the minor child, it must give paramount consideration to his moral and material welfare; and 3. After deciding to whom the custody of the common child belongs, the court shall then provide for the appropriate visitation rights of the parent who lost custody of the common child. Espiritu, et al. v. Court of Appeals and Masauding88 is instructive in how the court is to determine who of the parents should have custody of the common child. For further discussion please turn back to Art. 49. Effects of the decree of legal separation Art. 63. The decree of legal separation shall have the following effects: (1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; (2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits

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earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2); (3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and (4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a) The decree of legal separation affects four aspects of the marriage, to wit: (1) the right of consortium or cohabitation of the spouses, (2) their property relations if such were either one of absolute community or conjugal partnership, (3) the custody of their minor children, and (4) the right of a spouse to inherit from the other. The right of consortium Marriage obliges husband and wife to live together, observe mutual love, respect, and fidelity, and render mutual help and support.89 They are also to fix the conjugal home or family domicile.90 However, a decree of legal separation extinguishes the obligation to live together. In extinguishing the obligation to live together, a decree of legal separation also extinguishes the right of the spouses to consortium, which is the result of their obligation to live together. Consortium is the conjugal fellowship of husband and wife, and the right of one to the others company, society, cooperation, affection, and aid.91 However, the spouses cannot go around having relationships with others since the marriage bonds remain. It would seem that all rights arising out of the persons of the spouses are extinguished by the decree of legal separation but not rights and obligations coming out of the essence of marriage itself. This means that the spouses cannot remarry, cannot have sexual relations with others, and cannot live together with others. If they do, they can be charged either with adultery or concubinage, as the case may be. It means also that
91 92

Blacks Law Dictionary, Abridged 5th Ed. G.R. No. 115640, March 15, 1995, 59 SCAD 631, supra.

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the wife can establish her own domicile and cannot be forced to have sex with her husband, and, of course, vice-versa. To compel the other to have sex with him or her, can be ground for the criminal charge of rape or acts of lasciviousness, as the case may be. The property relations A decree of legal separation automatically dissolves the property regime governing the marriage of the spouses if it is one of absolute community or conjugal partnership or partial separation of property. A property regime of total separation of property will not be affected by legal separation, as there is nothing to dissolve. Once the property regime is dissolved, the properties acquired during the marriage and prior to the decree of legal separation should be liquidated and distributed in accordance with the law. Section 5 of Chapter 3, Title IV of the Family Code, comprising Articles 99 to 101, governs the dissolution of absolute community. Section 6 of the same Chapter and Title of the Code, comprising Articles 102 to 104, governs its liquidation. Section 6 of Chapter 4, Title IV of the Family Code, comprising Articles 126 to 128, governs the dissolution of conjugal partnership. Section 7 of the same Chapter and Title of the Code, comprising Articles 129 to 133, governs its liquidation. However, with respect to the net profits earned by the absolute community or conjugal partnership, the offending spouse cannot get his share. He forfeits it in favor of the common child or children, or if there be none, his child or children by a previous marriage, or if there be none, the innocent spouse. The custody of the minor child or children The court shall award the custody of the minor child or children to the innocent spouse subject to the provisions of Article 213 which states that:

93

Vd. Art. 43(5) and 1st par., Art. 50, Family Code. Sec. 19, Rule on Legal Separation. 95 Sec. 20(a), Rule on Legal Separation.
94

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In case of separation of the parents, parental authority shall be exercised by the parent designated by the court. The court shall take into account all relevant considerations, especially the choice of the children over seven years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother, unless the court finds compelling reasons to order otherwise. For a better understanding of the above article, study Espiritu and Layug v. Court of Appeals and Masauding,92 Unson III v. Navarro, Pelayo v. Aedo, and Chua v. Cabangbang. See Art. 49. The right to inherit from the other spouse The decree of legal separation also takes away the right of the offending spouse to inherit from the innocent spouse by intestate succession, and revokes automatically (ipso jure) any provision of a will made by the innocent spouse in favor of the offending one. But if the will is executed by the innocent spouse after the decree of legal separation, any provision thereof in favor of the offending spouse is valid and effective. This differs from the effect of a decree annulling, or declaring the nullity of, a marriage, or a marriage where one of the spouses has been missing for four consecutive years under Article 41, where the guilty party cannot inherit from the innocent spouse either by testate or intestate succession.93 The procedure under the Rule on Legal Separation Distinction between decision and decree of legal separation Under Sec. 16(b) of the Rule, if the court renders a decision granting the petition, it shall declare in said decision that it shall issue the decree of legal only after the parties shall have complied fully with liquidation under the Family Code. However, in the absence of any property of the parties, the court shall immediately issue the decree of legal separation. Such requirement effectively distinguishes the judicial decision granting the legal separation from the judicial decree of legal separation. A judicial decision follows right after the trial when the court declares that the case is

96 97

Sec. 20(b), Rule on Legal Separation. Sec. 20(c), Rule on Legal Separation.

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deemed submitted for decision after all the parties have submitted their respective evidence and the court has admitted them. It may be in favor of the petition or may be against the petition. But under the Rule, such decision is not yet the decree of legal separation. But for the court to issue the decree of legal separation, the following have to be complied with: 1. Registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; and 2. Registration of the approved petition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located.94 Registration of the decree, a duty The petitioner, who is able to obtain a favorable judgment, has to register the decree of legal separation within thirty days from receipt thereof with the Civil Registry where the marriage was registered, in the Civil Registry where the Family Court is located, and in the National Census and Statistics Office.95 When the decree has to be published; registered decree, best evidence Where the service of summons on the respondent was made by publication, the petitioner has to cause the publication of the decree of legal separation once in a newspaper of general circulation.96 The registered decree of legal separation is the best evidence to prove the legal separation of the parties and shall serve as notice to third persons concerning the properties of the petitioner and the respondent.97 Donations and insurance beneficiary Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as a beneficiary in any insurance
98 Sec. 22. Petition for revocation of donations. (a) Within five (5) years from the date the decision granting the petition for legal separation has become final,

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policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured. The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation has become final. (107a) Article 64 gives two rights to the innocent spouse upon the finality of the decree of legal separation. The first is the right of the innocent spouse to revoke the donations he made in favor of the offending spouse. It is submitted that the word donations embraces all kinds of donations given by the innocent spouse to the offending spouse, whether donations propter nuptias or moderate donations. This is because one should not make any distinction as to whether the donation be one of propter nuptias or of a moderate one under the statutory principle of Ubi lex non distinguit nec nos distinguere debemos, meaning, where the law does not distinguish, we should not distinguish. Under Sec. 22(a) of the Rule on Legal Separation, the revocation of the donation in favor of the offending spouse is through a petition under oath filed by the aggrieved spouse in the same proceeding for legal separation within five years from the finality of the decision granting the legal separation.98 The revocation shall be recorded in the Register of Deeds in the places where the properties are located.99 Any alienations, liens and encumbrances of the donated thing before the recording of the revocation are valid and have to be respected. Alienations, liens and encumbrances made after the recording of the revocation are of no legal effect. Under Sec. 22(c) of the Rule on Legal Separation,100 the registration of such alienations, liens and encumbrances must be in good faith. It means that if the

the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations in favor of the offending spouse. 99 Sec. 22 (b), Rule on Legal Separation.

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person, in whose favor the alienation, lien or encumbrance of the donated property was made, knew of the revocation of the donation, the alienation or lien or encumbrance of the donated property cannot be valid and respected. The second right which the law gives to the innocent spouse is the power to revoke or change the designation of the offending spouse as a beneficiary in any insurance policy even if such designation is stipulated as irrevocable. The revocation or change takes effect upon written notification thereof on the insured offending spouse. This is a legislative act that reverses the doctrine in Gercio v. Sun Life Assurance Co. of Canada101 where the wife got the insurance indemnity after the death of her husband inspite of the fact that there was already a final decree of legal separation based on adultery because she had been named as the irrevocable beneficiary of the insurance policy.102 The right to revoke the donation under this Article has to be exercised within five years from the date the decree of legal separation has become final. After five years, it prescribes. However, it does not provide any prescriptive period within which to revoke the insurance policy in favor of the guilty spouse. Justice Sempio-Diy is of the opinion that this right does not prescribe and the innocent spouse can revoke it as long as the policy is effective.103 Reconciliation Reconciliation is the mutual agreement of the spouses to resume their marital relationship.104 A renewal of cohabitation between husband and wife is proof of reconciliation.105 There is no reconciliation without cohabitation or living together even though the spouses may be cordial and friendly to each other. Articles 65 to 67 are provisions that deal with the spouses who reconcile after the filing of an action for legal separation. Article 65 states what the duty of the spouses is to the court when they reconcile. Article 66 states the consequences of the reconciliation
100 Alienations, liens and encumbrances registered in good faith before the recording of the petition for revocation in the registries of property shall be respected. 101 48 Phil. 53. 102 Sempio-Diy, op. cit., p. 93. 103 Ibid. 104 Pineda, op. cit., p. 92. 105 4 Eccl. 238; Bouviers Law Dictionary, p. 2843; cited by Pineda, loc. cit.

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with respect to the action for legal separation if it is still pending or if there is already a final decree of legal separation. Article 67 provides the procedure the reconciled spouses should follow if they want to revive the property regime they had prior to the final decree of legal separation. Duty of the reconciling spouses to the court Art. 65. If the spouses should reconcile, the corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n) This is a new legal provision not found in the Civil Code. This article requires the spouses who are parties in an action for legal separation to inform the court trying the legal separation case that they have reconciled through a verified joint manifestation. The spouses are to do this even if there is already a final decree of legal separation. In the Civil Code, specifically Art. 108, reconciliation stops the proceedings for legal separation if the action is still pending, or rescinds the decree of legal separation if one is already rendered. However, the Civil Code does not give any procedure that may make such reconciliation known to the court in which the action for legal separation is being heard and tried. For, as stated by Justice Sempio-Diy in her book, there are cases where after the decree of legal separation, the court does not even know that the parties have already reconciled and the decree of legal separation, in effect, has ceased to be effective.106 Effect of reconciliation Art. 66. The reconciliation referred to in the preceding Article shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated in whatever stage; and

Sempio-Diy, op. cit., p. 93. Under Sec. 23, Rule on Legal Separation, the Family Court shall immediately issue an order terminating the proceeding. 108 Vd. Sec. 3, Rule 17, Revised Rules of Court. 109 Vd. Sec. 23, Rule on Legal Separation.
106 107

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(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court order containing the foregoing shall be recorded in the proper civil registries. (108a) The article gives two possible stages in the action for legal separation when the verified joint manifestation of reconciliation may be filed by the spouses with the court, namely, while the action for legal separation is still pending or when there is already a final decree of legal separation. The Rule on Legal Separation clarifies the filing of the manifestation in the second stage of the action for legal separation. During the pendency of action When the verified joint manifestation is filed while the action for legal separation is still pending, the court will immediately terminate the proceedings or trial and then dismiss the petition. This means that there is no change whatever regarding the personal and property relations of the spouses. It is as if there had been no action for legal separation.107 Now, suppose the reconciled spouses do not file the required joint manifestation during the pendency of the action for legal separation, what will happen? It is submitted that since the petitionerspouse is no longer interested in pursuing the action, the court will have no alternative but to dismiss the petition.108 The dismissal by the court is in consonance with the public policy which is always in favor of the maintenance and continued subsistence and integrity of marriage. It is also in accordance with the provisions of Sec. 3 of Rule 17, The Revised Rules of Court. After final judgment of legal separation The spouses may file the sworn joint manifestation of reconciliation when the decree of legal separation has not been issued yet or

110

Sec. 23(c), Rule on Legal Separation.

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when such decree has already been issued.109 Before issuance of decree of legal separation If the spouses file the verified joint manifestation after the judgment has become final but before the issuance of the decree of legal separation, they can include in said manifestation a motion to revive the former property regime governing their marriage before the action for legal separation. In such case, the court shall immediately issue a decree of reconciliation setting aside the final judgment of legal separation and specifying the revived property relations that should govern the marriage.110 In this case the guilty spouse shall not suffer the forfeiture referred to in Art. 63(2) in case the final judgment provides for it.111 But if the spouses desire to have another property regime to govern their marriage, they have to file a verified motion in court. The verified motion shall contain their verified agreement regarding the property regime they have chosen to govern their marriage, specifying the properties to be contributed thereto, the properties retained as their separate properties, and the name of their known creditors, with their addresses and the amounts owing them.112 They are also to furnish the creditors with copies of the verified motion wherein their agreement is contained. The court shall require them to cause the publication of their verified motion in a newspaper of general circulation for two consecutive weeks.113 After due hearing, the court may grant the motion. If it does, then it shall issue an order directing the spouses to record the order granting their motion to have a new property regime to govern their marriage in the proper registries of property within thirty days from receipt thereof and submit proof of their compliance thereto within the same period of time.114 Besides this order, the court shall also issue a decree of reconciliation setting aside the judgment of legal separation.115 The spouses shall register the decree of reconciliation in the Civil Registry where the marriage had been registered.116 After issuance of decree of legal separation

Compare Sec. 23(c) to Sec. 23(d) of the Rule on Legal Separation. Sec. 23(c) and (e), Rule on Legal Separation. 113 Sec. 24(d), Rule on Legal Separation. 114 Sec. 24(e), Rule on Legal Separation.
111 112

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If the spouses file the verified joint manifestation after the judgment has become final and after the issuance of the decree of legal separation, they have to file a verified motion to set aside said decree of legal separation. Upon receipt thereof, the court shall issue a decree of reconciliation declaring that the decree of legal separation is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists.117 If the reconciled spouses like to revive the former property regime or to have a new property regime to govern their marriage, they have to file a verified motion for such revival or for such a new property regime in the court.118 The verified motion must also contain their agreement verified, regarding the property regime that is to govern their marriage, specifying therein the properties to be contributed to the restored or new property regime, the properties to be retained as separate properties for each spouse, and all their known creditors, with their addresses and the amounts owing to each of them. The court shall then require the spouses to cause the publication of their verified motion in a newspaper of general circulation for two consecutive weeks, and then hear the motion. After due hearing, the court may grant the motion and shall issue an order directing the spouses to record the order granting their motion to revive their former property regime or to have a new property regime in the proper registries of property within thirty days from receipt of said order and submit proof of their compliance thereto within the same period of time.119 The spouses shall also register the decree of reconciliation issued by the court with the Civil Registries where the marriage and the decree of legal separation had been registered. Art. 66 compared to provisions of similar import in the Civil Code The rule in Art. 66 is in contrast to the rule in the Civil Code where the second paragraph of Art. 108 in relation to the second paragraph of Art. 195(1) states that the property relations between

Vd. Sec. 23(c) and (d), Rule on Legal Separation. Sec. 23(f), Rule on Legal Separation. 117 Sec. 23(d), Rule on Legal Separation. 118 Sec. 23(d) correlated to Sec. 24(a), Rule on Legal Separation. 119 Sec. 24(e), Rule on Legal Separation. 120 Supra, pp. 96-97. 121 Sec. 23(c), Rule on Legal Separation. 122 Sec. 23(d) and Sec. 24(a), Rule on Legal Separation. 123 Sec. 24(a) and (b), Rule on Legal Separation.
115 116

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the spouses shall be governed by the same rules as before the separation, without prejudice to the acts and contracts legally executed during the separation. Effect of failure to file the sworn joint manifestation of reconciliation Suppose the reconciled spouses do not file the required joint manifestation after the decree of legal separation has become final, what will happen? It is submitted that the decree of separation remains. Although there is reconciliation de facto, in the eyes of the law there is no reconciliation since the decree of legal separation remains. The guilty spouse continues to suffer the incapacity to inherit from the other spouse; his loss of parental authority over the minor child or children by the final decree of legal separation is still binding; the separation of property and any forfeiture of the share of the guilty spouse already effected still subsists; and the order of the court where the final decree of separation appears shall remain in the records of the civil registry concerned. For final decree of legal separation to be set aside by the court, the reconciled spouses have to file a verified joint manifestation with the court as mandated by Art. 65 and in accordance with the pertinent provisions of the Rule on Legal Separation. The above opinion may run counter to the principle that in case of doubt every intendment of the law should favor marriage. However, the mandatory character of the legal provision is manifest not only in the word shall but also by the other things that the reconciled spouses should do under the Rule on Legal Separation. Duty of the court When the court receives the verified joint manifestation of reconciliation from the spouses, it must do either of the following: (1) Issue an order terminating the proceedings for legal separation; or (2) Issue a decree of reconciliation setting aside the proceedings of legal separation and specifying therein the regime of property relations under which the spouses shall be covered; or
Sec. 24(c), Rule on Legal Separation. Sec. 24(d), Rule on Legal Separation.

124 125

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(3) Issue a decree of reconciliation setting aside the decree of legal separation but the separation of property and the forfeiture of the share of the guilty spouse already effected shall subsist; or (4) Issue a decree of reconciliation setting aside the decree of legal separation and stating therein that the former property regime shall be revived or a new property regime is to govern the marriage, and that the forfeiture of the share of the guilty spouse is set aside if already effected. Where there are creditors, the court shall take measures to protect their interests. Agreement to revive former property regime Art. 67. The agreement to revive the former property regime referred to in the preceding Article shall be executed under oath and shall specify: (1) The properties to be contributed anew to the restored regime; (2) Those to be retained as separated properties of each spouses; and (3) The names of all their known creditors, their addresses and the amounts owing to each. The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measures to protect the interest of creditors and such order shall be recorded in the proper registries of property. The recording of the order in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditors claim. (195a, 108a) Procedure Article 67 provides the procedure which the reconciling spouses have to follow if they want to revive their former property regime when there is already a final decree of legal separation.

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To revive the former property regime, the spouses should put their agreement in writing and under oath, specifying: (1) regime; The properties to be contributed anew to the restored

(2) The properties which are to be the separate properties of each spouse; and (3) The names of all their known creditors, their addresses, and the amounts they owe each creditor. Then the spouses should file a joint motion with the court for the approval of their joint agreement under oath, furnishing copies thereof to the creditors named in the agreement. The court should take measures to protect the interests of the creditors in its order approving the written agreement under oath. The order of the court shall then be recorded in the proper registries of property, without prejudice to any creditor not listed in the written agreement or not notified of the hearing of the motion for the approval of the written agreement, unless the debtor-spouse has sufficient separate properties to satisfy the creditors claim. Justice Sempio-Diy makes the following comment regarding the recording of the courts order in the reconciliation of the spouses in action for legal separation:120 (f) The court order approving the parties agreement shall be recorded in the proper registries of property in all the places where the spouses have properties. This recording is in addition to the recording of the order setting aside the decree of legal separation in the civil registry where the decree of legal separation is recorded as well as in the place where the parties reside, if they have changed residence. In other words, there will be double recording in the proper registries of property, and in the proper civil registries. (g) The recording of the said order shall not, however, prejudice creditors not listed or not notified of the proceedings, unless the debtor-spouse has sufficient separate properties to satisfy the claims of such creditors. In other words, the revival of the old property regime between the parties is without prejudice to vested rights already acquired by creditors prior to such revival. In effect, a legal lien is created in favor of unsecured creditors. Thus:

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(i) lien; (ii)

Contractual lienholders retain their lien; Creditors without liens are given a legal

(iii) In case of insufficiency of properties of the debtor-spouse with which to pay his or her creditors, the future share of said spouse in the community or conjugal properties will answer for his personal obligations. (h) There is no more publication of the proceedings, because publication is very expensive and it is usually made in newspapers that nobody reads. Anyway, creditors not personally notified of the proceedings are not affected by the same. (i) The creditors not notified of the proceedings may assert the claims against the debtor-spouse within the ordinary periods of prescription. Procedure under the Rule on Legal Separation Under the Rule on Legal Separation, the reconciled spouses may revive the former property regime governing their marriage or may choose to have another property regime to govern their marriage. The procedure may differ depending on what stage of the action for legal separation is when the spouses file the verified joint manifestation of reconciliation with the court. But definitely when the reconciliation takes place during the pendency of the petition for legal separation, the spouses cannot change their property regime in the same petition for legal separation. Such can be done only when the reconciliation of the spouses takes place when there is already a final judgment of legal separation. Reviving the former property regime The focal point in determining whether to file a verified motion to revive the former property regime that shall govern the marriage is the time of the issuance of the decree of legal separation. Where the decree of legal separation has not been issued yet, the spouses need not file any motion to revive the former property regime. All that is required of them is to express in their verified joint manifes126

Sec. 24(e), Rule on Legal Separation.

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tation of reconciliation that they want to revive the former property regime governing their marriage.121 When there is already a decree of legal separation, the spouses have to file the appropriate motion, verified, to revive the former property regime.122 The verified motion shall contain the agreement of the spouses, which shall be verified, regarding the revived property regime, specifying the following: 1. 2. and 3. The names of all their known creditors, their addresses, and the amounts owing each.123 The spouses shall furnish the creditors with copies of the motion and the agreement.124 The court shall require the spouses to cause the publication of the verified motion in a newspaper of general circulation for two consecutive weeks.125 And after due hearing and the court grants the motion, it shall issue an order directing the parties to record the order in the proper registries of property within thirty days from receipt of a copy of the order and submit proof of compliance within the same period.126 Adopting a new property regime When it comes to adopting a new property regime to govern the marriage after the final judgment of legal separation, the issuance of the decree of legal separation is irrelevant.127 When the spouses want a new property regime to govern their marriage, they should file a verified motion asking the court to approve their agreement, verified, attached to the motion, which contains the new property regime which they want to adopt in lieu of the property regime governing their marriage before the action for legal separation. They should furnish their known creditors with copies of the motion and the agreement and the court shall require them to cause the publication of the motion for two consecutive weeks in a newspaper of general circulation. And if the court grants the motion after due hearing, it shall issue an order directing the parties to record the order in the proper registries of property within thirty days from The properties to be contributed to the restored regime; Those to be retained as separate properties of each spouse;

127 128

Vd. Sec. 23(e) correlated to Sec. 23(c) and (d), Rule on Legal Separation. Sec. 24, Rule on Legal Separation.

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receipt of a copy of the order and submit proof of compliance within the same period.128

217

TITLE III. RIGHTS AND OBLIGATIONS OF SPOUSES


The rights and obligations of the spouses are what constitute the marital relations. They may be purely personal and not purely personal. The purely personal marital relations are inaccessible to law for they are essentially of the natural and moral kind. Examples of such marital relations are the sex life of the spouses, how they express and show their love for each other, the right of each spouse to open the correspondence of the other, the career and profession they choose for their children, the practices and traditions they establish for their family. The not purely personal marital relations refer to those where third persons and the public interest are affected. Examples of this aspect are the rights of the children and the spouse against the abuses of the other spouse, support, parental authority, the liabilities of the spouses affecting the community or conjugal properties. Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support. (109a) Art. 68 enumerates the reciprocal rights and duties of the spouses. They are to live together, love and respect each other, be true and faithful to each other, and help and support each other. The duty to live together, observe mutual love, respect, and fidelity is purely personal. The duty to render mutual help and support is not purely personal. This article is a reproduction of Art. 109 of the Civil Code except for the addition of love.

217

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To live together The law obliges the spouses to live together. This means that they are to live together under one roof, have a common life, a common purpose. This right is also called right to consortium. It entitles the spouses to enjoy not only each others body but also each others companionship, commitment, help and support. The law considers them as one, two lives in one. His life for her and her life for him. The Lord Jesus expresses this as follows: Wherefore they are no longer two but one body. For what God has joined together, let no man pull apart.1 Any person who interferes with the right of the spouses to cohabitation may be held liable for damages under Art. 26(2) of the Civil Code. A parent cannot keep his daughter from living with her husband and if he does, the husband can get his wife back from the parent through habeas corpus proceedings.2 The right of consortium is also a duty. A husband cannot, therefore, be accused of rape when he compelled his wife to have sex with him.3 Neither can the wife be accused of acts of lasciviousness where she compelled her husband to have sex with her. However, the sexual intercourse here should be normal, not abnormal or unnatural.4 And where she is ill or where sex would endanger her health, the wife can refuse to have sex with her husband.5 A husband cannot throw his wife out of the conjugal dwelling and vice-versa. If the husband breaks down the door closed by his wife to keep him out of their house, he cannot be charged of trespass to dwelling. A promise by the husband to pay his wife to allow him to have sex with her is void for want of consideration.6 However, if a spouse would refuse to cohabit with the other, the court cannot compel him to do so.7 The Supreme Court explains: Upon examination of the authorities we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of
1 2

Matthew 19:5-6. 4 I Enenccerus, Kipp & Woff 188, cited by Tolentino, 1990 Reprint, op. cit.,

p. 342.
3 Vd. Sta. Maria, Jr., op. cit., pp. 346-349, where it is argued that a husband can rape his wife, backed up by American judicial decisions. 4 Tolentino, 1990 reprint, op. cit., p. 340, citing 2 Planiol & Ripert 271-272. 5 Sempio-Diy, op. cit., p. 98. 6 Tolentino, 1990 reprint, op. cit., p. 339, citing 2 Planiol & Ripert 271-272. 7 Arroyo v. Vazquez de Arroyo, supra. 8 Ibid.

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course where the property-rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and the experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable.8 Instead of compelling the spouse concerned to return to the conjugal dwelling, the court can compel him to pay damages to the left-behind spouse for refusing to comply with his marital obligation to cohabit,9 or where the spouse seeking support was the one who left the conjugal home without any justifiable cause, the left-behind spouse cannot be compelled to support the former.10 In one case, the Supreme Court held that where the wife has abandoned the husband without justification, it is her duty to return and conform to his reasonable mode of living. It is not the duty of the husband to ask her to return, and until she returns, the husband has no obligation to support her.11 Since to cohabit is both a right and a duty, the courts should move with caution in enforcing the duty to provide for the separate maintenance of the wife (or husband), for this step involves a recognition of the de facto separation of the spouses a state which is abnormal and fraught with grave danger to all concerned. From this consideration it follows that provision should not be made for separate maintenance in favor of the wife (or husband) unless it appears that the continued cohabitation of the pair has become impossible and separation necessary from the fault of the husband (or wife). The general rule, therefore, is not to support the spouse who abandons or leaves the conjugal dwelling. The exception is when continued cohabitation has become impossible and separation
9 Tenchavez v. Escao, supra; cf. 2 Planiol & Rippert 271-172, cited by Tolentino, 1990 reprint, op. cit., p. 341. 10 Vd. Goitia v. Campos Rueda, supra, and Arroyo v. Vazquez de Arroyo, supra; De Ocampo v. Florenciano, supra; Kessler v. Kessler, 2 Cal. App. 509, 83 Pac. 257, cited by Tolentino, 1990 Reprint, op. cit., p. 341. 11 Kessler v. Kessler, supra; cf. De Ocampo v. Florenciano, supra. 12 Goitia v. Campos Rueda, supra, cited by Aquino, op. cit., p. 179. 13 Garcia v. Santiago, 53 Phil. 952, cited by Aquino, ibid.

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necessary. In the language of the Supreme Court: In Davidson v. Davidson, the Supreme Court of Michigan, speaking through the eminent jurist, Judge Thomas M. Cooley, held that an action for the support of the wife separate from the husband will only be sustained when the reasons for it are imperative (47 Mich., 151). That imperative necessity is the only ground on which such a proceeding can be maintained also appears from the decision in Schindel v. Schindel (12 Md., 294). The imperative necessity which can compel a spouse to support the other who left the conjugal dwelling is found in the following instances: 1. Where the husband asked the wife to perform unchaste and lascivious acts on his genital organs, apart from legal and valid cohabitation, and she refused to do so.12 2. Where the husband practically drove out the wife of the conjugal home and threatened her with violence if she would return.13 3. Where the husband had repeated illicit relations with women outside of the marital establishment even though he did not bring a concubine to their marital domicile.14 4. Where the husband has no fixed residence and lives a vagabond life as a tramp.15 5. Where the husband is carrying on a shameful business at home.16 To observe mutual love, respect, and fidelity To observe mutual love, respect, and fidelity to one another is purely personal and goes into the very core of the marital relations. The spouses have to do this voluntarily and no court can compel them to love, respect, and be faithful to one another if they do not want to. This is something that is beyond the court to control and
Dadivas de Villanueva v. Villanueva, G.R. No. 29959, Dec. 3, 1929, en banc. 1 Manresa 329, cited by Sempio-Diy, op. cit., p. 99. 16 Gahn v. Darby, 36 La. Ann. 70, cited by Sempio-Diy, loc. cit. 17 Matthew 5:28, NIV. 18 Tolentino, 1990 reprint, op. cit., p. 342. 19 2nd par. of Art. 333 of the Revised Penal Code.
14 15

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impose. However, the lawmakers want to emphasize the fact that marriage should be based on love, respect, and fidelity to one another. They know that a marriage without love, respect, and fidelity to one another would be an impossibility in this world where marriage is a beleaguered institution. With mutual love, respect, and fidelity, living together would be a joy; the grave problems oftentimes encountered in marriage and in the rearing up of children would bind rather than destroy the tie between the spouses. Problems shared in love would not be as heavy as when borne alone. The American College Dictionary defines respect as esteem or deferential regard felt or shown. Prior to the enactment of the Civil Code the marriage law in the Philippines was the Spanish Civil Marriage Law of 1870 and it provides that the wife must obey her husband (Article 48). The Civil Code and the Family Code abolished this. They instead order that husband and wife are to respect each other. This change shows that the present law considers the wife equal to her husband. The present law makes the man and the woman joint heads of the family. The theory is that the marital relations would be better if the husband and the wife decide and do things together. Doing things together, planning things together, leading the family together, based on love and respect, would be more a labor of love, resulting in a happy and harmonious family life. Each spouse can learn from the other. One can be a gentle guide teaching the other things not known to him, and vice-versa. Husband and wife would face the problems, the burdens of life and of their marriage as one. Ones triumph is the others. Ones defeat is the others. Ones frustrations, pains, disappointments, sickness, are the others. Truly the husband and the wife are one in sickness and in health, in richness and in poverty until death do part them. Leyes de Siete Partidas explains fidelity between the spouses as the loyalty which each should observe toward the other, the wife having nothing to do with another man, nor the husband with another woman. The ideal is to be faithful not only in act but also in thought. As Christ expresses it: But I tell you that anyone who looks at a woman lustfully has already committed adultery in his heart.17 However, since no man can see the heart of another, the law looks at the acts of man to determine his intent. So that adultery can be punished by law only when there is a physical act.
20

Sec. 7(c), Domestic Adoption Act of 1998.

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The law and public opinion consider the infidelity of the wife graver than that of the husband. The infidelity of the wife results in greater danger to the marriage and the family. An unfaithful husband will not cause dishonor to the family as the case of the former president, Joseph Ejercito Estrada, proves. But the infidelity of a wife makes the husband a laughingstock. A long time ago, a well-known basketball player became the laughingstock of the public because of the unfaithfulness of his wife. He was greatly affected by it that his play deteriorated. Why is this so? Dr. Tolentino explains that the infidelity of the wife seriously injures the family honor, impairs the purity of the home, and may bring illegitimate children into the family.18 That is why just one act of infidelity of a wife is a criminal offense of adultery which will subject her to an imprisonment of two years, four months, and one day to six years (prision correccional in its medium and maximum periods).19 A man cannot commit the crime of adultery. For a man to be criminally liable because of sexual infidelity, he has to have sex with a woman other than his wife under scandalous circumstances, or shall keep her as a mistress in the conjugal dwelling, or cohabit with her in another place. If he does any of these, he will be guilty of concubinage under Art. 334 of the Revised Penal Code. To render mutual help and support This aspect of the marital rights and duties is not purely personal and is but an expression of the mutual love, respect, and fidelity the spouses have for each other. Help and support are synonyms. Help and support involve not only the financial and material help and support of one spouse to the other but also that of lifting him up when he is down, telling him he can do it when he feels that the task before him is beyond his capability, telling him gently but firmly that he is wrong when he tries to justify his mistake, listening patiently and with interest to his wifes tale of woes and hurts when he has just arrived from work, very tired and exhausted, and wants to relax and rest, caring for her when she is sick and cannot serve him and the children. As Dr. Tolentino puts it, it is not limited to material assistance and care during sickness. It extends to everything that involves moral assistance and mutual affection and regard. It covers the mass of relations manifesting the supreme need of adjusting the acts and thoughts of the spouses to a common
21 22

Sec. 9(e), Domestic Adoption Act of 1998. Art. 87, Family Code.

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purpose in the struggles of life. The State protects the marital relations by enacting laws, like for example, defense of a spouse under Art. 11, no. 2 of the Revised Penal Code, the increase of penalty in a crime by a spouse against the person of the other under Art. 246 of the Revised Penal Code, discouraging spouses from committing infidelity under Art. 333 (adultery) and Art. 334 (concubinage), the disqualification of a spouse to testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case from a crime committed by one against the other or the latters direct descendants or ascendants under Sec. 22 of Rule 130, Revised Rules of Court, the prohibition against the examination of a spouse, during or after the marriage, without the consent of the other as to any communication received in confidence by one from the other during the marriage except in a civil case by one against the other, or in a criminal case for a crime committed by one against the other or the latters direct descendants or ascendants under Sec. 24 (a) of Rule 130, Revised Rules of Court, the provision in the Domestic Adoption Act of 1998 that husband and wife shall jointly adopt,20 and that a spouse can object to the adoption of or by the other,21 the prohibition against a spouse donating to the other except moderate gifts on the occasion of any family rejoicing.22 Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide. The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a) This article is a natural and logical result of the husband and the wife being the joint heads of the family. They have joint authority to choose where they are to live together. This differs from the Civil Code (Art. 110) where the husband has the sole prerogative to fix the conjugal dwelling. Once the husband and the wife have decided where to have
Sempio-Diy, op. cit., p. 101. Tolentino, 1990 reprint, op. cit., p. 349. 25 The husband is responsible for the support of the wife and the rest of the
23 24

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their conjugal home, they are duty-bound to live there together. However, the court may exempt one from living with the other if the latter should live abroad or if there is any other valid and compelling reason for such an exemption. The principle, however, that guides the court as to whether or not to exempt the spouse concerned from living with the other is, Would such exemption be compatible with the solidarity of the family? If it is not, the court would deny the exemption; if it is, then it would grant the exemption. The article mentions, as one of the reasons for exempting a spouse from living with the other, the living of the latter abroad. Justice Sempio-Diy opines that a spouse living abroad in the service of the Republic is no longer a statutory reason to compel the wife to live with the husband abroad. It is only one of the reasons that the court may take into account in determining whether the wife should join the husband or not.23 Other valid compelling reasons will be any of the grounds for legal separation under Art. 55, if the aggrieved spouse prefers living separately from the other rather than asking the court for a legal separation, or where the spouses agreed to live in the house of the husbands parents for lack of means to have a house of their own but after some years the wife finds the attitude of her parents-in-law unbearable, or where the original location of their domicile makes it impossible to continue with her business or the practice of her profession.24 The law gives the court discretion to decide whether or not the reasons or grounds given to live separately may be valid and compelling to justify such an act of the spouse. However, the guiding principle in all judicial actions on the application by a spouse for exemption to live with the other spouse is whether such exemption would be compatible with the solidarity of the family. Should the spouses fail to agree where to have their conjugal dwelling, they can ask the court to settle the difference for them. Again, when the court decides, the spouses are duty-bound to live together in the conjugal dwelling decided for them by the court. The article uses the term family domicile to emphasize the fact that it is distinct from a mere house or residence, a place where one merely lives in. It connotes a definite meaning, which is, the

family.
26

Tolentino, 1990 reprint, op. cit., p. 251.

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home where the spouses plan to live and love together, plan for their future, beget children whom they will care for and rear up therein. A family domicile is a family home, a place where one longs to return, where he feels safe and loved, where he can let down his defenses without fear of being hurt, where he can be what he really is. Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from their separate properties. (111a) Again this is the logical and natural consequence when the law makes both the husband and the wife joint heads of the family. This article differs from Art. 111 of the Civil Code which imposes the obligation to support the wife and the children solely on the husband.25 The expenses incurred for the support of the family and other conjugal obligations shall be taken from the following, in the order given: 1. The community or conjugal property, or if it is not enough or there is none, 2. The income or fruits of the separate properties of the spouses, or if insufficient or there is no such income or fruit, 3. The separate properties of the spouses.

Art. 71. The management of the household shall be the right and duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70. (115a) Because the husband and the wife are joint heads of the family, they are now the joint managers of the household. Again this article changes the role of the wife in the Civil Code (Art. 115) where the wife manages the affairs of the household. This article has changed the traditional Filipino concept of the wife as reyna ng tahanan.
27 28

Sempio-Diy, op. cit., p. 106. Ayala Investment & Development Corp., et al. v. Court of Appeals, et al., G.R.

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The management of the affairs of the household is now placed in both the husband and the wife. Explains Justice Sempio-Diy for the change: The change in the rule introduced by the Family Code answers the cry of Filipino women that they should not be confined to stereotype roles, one of which is the management of the household. They would like the husbands also to share this responsibility, like worrying about the high prices of food items and other family necessities, making both ends meet, helping the wife with household chores if the maid leaves or goes on vacation, taking care of the baby at night especially if both spouses go to office or work during the day, etc. However, Dr. Tolentino voices his objection to such a change: This is carrying the principle of equality of the spouses a little too far. In case of disagreement between them in such management, how will the disagreement be settled? The law is silent on this point. Filipino custom considers the wife as queen of the home. The Filipino woman traditionally runs the household and holds the family purse even if she does not contribute thereto. (Maxey vs. Court of Appeals, 129 SCRA 187) In view of the silence of the law on how the disagreement between the spouses in the management of the household shall be settled, the custom should be observed, and the wifes position should be given priority.26 Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief. (116a) This article covers two acts of a spouse, namely, neglect to perform his duties to the conjugal union (acts of omission), and acts tending to bring danger, dishonor or injury to the other spouse or his family (acts of commission). If any of these things happens, the aggrieved spouse can go to court to ask for relief.
No. 118305, Feb. 12, 1998, 91 SCAD 663.

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Under the Art. 116 of the Civil Code, the court may counsel the offender to comply with his or her duties, and take such measures as may be proper. The Family Code did not reenact this legal provision. However, because certain duties of the spouses are purely personal in nature, it is submitted that with respect to such duties, the court can only counsel the offending spouse to comply with such duties. Dr. Tolentino expresses this in this wise: When the Code used the phrase measures as may be proper, it meant such measures that are provided by law for the particular breach of duty complained of; the Code did not intend that the judge should create a remedy based exclusively upon his own discretion. That would be a delegation of legislative power. Certainly, the Code could not have intended that the courts of this jurisdiction should use the coercive force of public authority even in matters which refer to the internal aspect of the family, in which the use of such force may prove more harmful than beneficial both to the family and to society. The Civil Code refers to measures recognized by law as may be proper in the light of the conjugal duty that is violated. We may cite a few examples to make this point clear. Take the case of the duty of living together. If the husband violate this duty by abandoning the wife, he cannot be compelled by the court to return to her; he can only be counselled to do so. But if he does not comply with his duty, there being no just cause for his refusal, then the court may take the following measures upon the petition of the wife: (1) order payment of separate maintenance to wife, which order is enforceable by execution and contempt proceedings, (2) grant a separation of property, or receivership of the conjugal property, or legal separation, if the abandonment lasts for more than a year, and (3) grant judicial authorization for acts of the wife requiring consent of the husband. Then, take the obligation of mutual respect. If the husband continually insults the wife and does not give her the regard due her, making her continued living with him unbearable, she may resort to the court; if after being counselled by the court, the husband continues his unbearable attitude towards the wife, she may separate from him and the court will grant her separate maintenance. In extreme cases, where the

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husband maltreats and injures the wife, the court may order the prosecution of the husband for physical injuries or attempted parricide, as the case may be, and the wife may ask for legal separation. The court may, therefore, take such measures which are justified by law for the particular breach of conjugal duty complained of; but such measures can never take the form of personal or physical compulsion to comply with the violated duty. The coercive power of the court may be made to affect the patrimony of the offending spouse; it may even impose penalties if the offense constitutes a crime; but it cannot be used to make him perform a personal act. When, however, the neglect of a spouse is not purely personal but is more in the nature of material or financial support, the court can compel him to comply with such obligation, being not a purely personal duty but more of a patrimonial obligation. When a spouse commits acts which tend to bring danger, dishonor, or injury to the other spouse or a member of the family, the court can issue an order to stop the spouse concerned from committing further such acts. Non-compliance with such an order can subject the spouse concerned to contempt of court. Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds. In case of disagreement, the court shall decide whether or not: (1) The objection is proper, and (2) Benefit has accrued to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent. The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)

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229

Compared to Civil Code The following are the differences between the Family Code and the Civil Code regarding the exercise of a profession or occupation or engaging in business of a spouse: 1. Under the Civil Code the wife can exercise any profession or occupation or engage in business. Under the Family Code, the profession, occupation, business must be legitimate. Justice SempioDiy interprets this as lawful, honest, moral. However, from the moral point of view, legitimate may not be moral, as for example, gambling in a casino may be legal or legitimate under our present laws but it is certainly not a moral act; 2. Under the Civil Code, only the husband can object to his wife exercising a profession or occupation or engaging in business. In the Family Code, the wife can also object to her husband exercising his profession or occupation or engaging in business; 3. Under the Civil Code, the husband can object if the following conditions concur, to wit: a. His income is sufficient for the family according to its social standing, and b. His opposition is founded on serious and valid grounds. The Family Code does not impose such conditions. It suffices that there is a valid, serious and moral ground to object. 4. The Family Code adds moral to valid and serious grounds found in the Civil Code. Thus, the term grounds is now modified by three adjectives, valid, serious, and moral. Does it mean that as the law now stands, a ground has to be moral besides being valid and serious? It would seem so. For the more modifiers a term has, the narrower is its extension or the objects it represents. For example, boy embraces all kinds of boys. If one adds tall to boy, only tall boys are represented by tall boy. Boys who are not tall are excluded. If fat is further added as a modifier to boy, i.e., tall, fat boy, tall boys who are not fat are now excluded. So that a spouse must not only have a valid and serious ground if the objection is to be proper, the ground must also be moral; 5. Under the Civil Code, if the wife still insists on practicing her profession or occupation or in engaging in business inspite of her husbands objection, the two conditions being present, the spouses

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can bring this matter to their parents and grandparents as well as the family council, if any. If still the problem is not resolved, the court will have to step in to decide whatever may be proper and in the best interest of the family. Under the Family Code, the objecting spouse can immediately go to court to settle the issue once and for all. The parents and grandparents need not be consulted and the Family Code has abolished the family council. The reason given for such an abolition is as follows: In the case of the family council supposed to be composed of relatives of husband and wife, it was found out that the family council, instead of solving problems, created new ones, because in view of family affection and loyalty that prevail in our country, the family council usually split in factions so that no solutions could be obtained. So the Committee opted for solutions through the courts.27 When the disagreement is brought to court, it has to decide whether or not the objection is proper. If there is proof that the ground is really valid, serious, and moral, the court can order the spouse concerned to cease and desist from exercising his profession or occupation or engaging in business. Examples of some businesses that would be both immoral and would bring danger and dishonor to the family is extortion, kidnapping, illegal recruitment, jueteng, prostitution since they are criminal acts which would bring the sword of the State down upon the spouse engaging in such businesses. The court has also to determine whether the benefit that resulted from the exercise of the profession or occupation or the engaging in the business has accrued to the family is prior to or after the objection. If the benefit has accrued prior to the objection, the resulting obligation shall be enforced against the community or conjugal property. If after the objection, then the resulting obligation shall be enforced only against the separate property of the spouse exercising his profession or occupation or engaging in business, not against the community or conjugal property and the separate property of the one who objects. However, creditors of the family who acted in good faith will
29

Mariano v. Court of Appeals, et al., G.R. No. 51283, June 7, 1989.

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231

not be prejudiced They can still satisfy their credits from the community or conjugal property or the separate properties of the spouses in proper cases, provided that such obligations redounded to the benefit of the family. Thus, where the husband contracts obligations on behalf of the family business, the law presumes that such obligation will redound to the benefit of the conjugal partnership. But if the money or services are given to another person or entity, and the husband acted only as a surety or guarantor, that contract cannot, by itself, alone, be categorized as falling within the context of obligations for the benefit of the conjugal partnership.28 Where the wife engaged in business not only without objection from her husband but with his consent and approval and that the profits from the business had been used to meet, in part at least, expenses for the support of her family, i.e., the schooling of the children, food and other household expenses, the conjugal property shall be liable for all debts and obligations contracted by the wife in her business.29 And even if the husband has not given his consent, the common or conjugal property would still answer for the obligations incurred in such exercise or engagement if they redounded to the benefit of the family. However, where the husband did not give his consent, neither did the obligation incurred by the wife redound to the benefit of the family, the conjugal property as well as the separate property of the husband cannot be liable for such obligation.30 Where the husband dies, the creditor cannot sue the wife for the obligation of the deceased husband although it might have redounded to the benefit of the family and hold the conjugal partnership liable for such obligation because the conjugal partnership has ceased to exist upon the death of the husband. The debts and charges against the conjugal partnership of gains may only be paid after an inventory is made in the appropriate testate or intestate proceeding.31

30 Johnson & Johnson (Phils.), Inc. v. Court of Appeals, et al., G.R. No. 102692, September 23, 1996, 74 SCAD 645. 31 Ventura v. Hon. Militante, et al., G.R. No. 63145, October 5, 1999, 113 SCAD 685.

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233

Appendix 1
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES
Section 1. Scope. This Rule shall govern petitions for declaration of absolute nullity of void marriages and annulment of voidable marriages under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. Sec. 2. Petition for declaration of absolute nullity of void marriages. a. Who may file. A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife. (n) b. Court. Where to file. The petition shall be filed in the Family

c. Imprescriptibility of action or defense. An action or defense for the declaration of absolute nullity of void marriage shall not prescribe. d. What to allege. A petition under Article 36 of the Family Code shall specifically allege the complete facts showing that either or both parties were psychologically incapacitated from complying with the essential marital obligations of marriage at the time of the celebration of marriage even if such incapacity becomes manifest only after its celebration. The complete facts should allege the physical manifestations, if any, as are indicative of psychological incapacity at the time of the celebration of the marriage but expert opinion need not be alleged. Sec. 3. Petition for annulment of voidable marriages.
233

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Sec. 3

(a) Who may file. The following persons may file a petition for annulment of voidable marriage based on any of the grounds under Article 45 of the Family Code and within the period herein indicated: (1) The contracting party whose parent, or guardian, or person exercising substitute parental authority did not give his or her consent, within five years after attaining the age of twenty-one unless, after attaining the age of twenty-one, such party freely cohabited with the other as husband or wife; or the parent, guardian or person having legal charge of the contracting party, at any time before such party has reached the age of twenty-one; (2) The sane spouse who had no knowledge of the others insanity; or by any relative, guardian, or person having legal charge of the insane, at any time before the death of either party; or by the insane spouse during a lucid interval or after regaining sanity, provided that the petitioner, after coming to reason, has not freely cohabited with the other as husband or wife; (3) The injured party whose consent was obtained by fraud, within five years after the discovery of the fraud provided that said party, with full knowledge of the facts constituting the fraud, has not freely cohabited with the other as husband or wife; (4) The injured party whose consent was obtained by force, intimidation, or undue influence, within five years from the time the force, intimidation, or undue influence disappeared or ceased, provided that the force, intimidation, or undue influence having disappeared or ceased, said party has not thereafter freely cohabited with the other as husband or wife; (5) The injured party where the other spouse is physically incapable of consummating the marriage with the other and such incapacity continues and appears to be incurable, within five years after the celebration of marriage; and (6) The injured party where the other party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable, within five years after the celebration of marriage. (b) Where to file. The petition shall be filed in the Family Court.

Secs. 4-6

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Sec. 4. Venue. The petition shall be filed in the Family Court of the province or city where the petitioner or the respondent has been residing for at least six months prior to the date of filing, or in the case of a non-resident respondent, where he may be found in the Philippines, at the election of the petitioner. Sec. 5. Contents and form of petition. (1) The petition shall allege the complete facts constituting the cause of action. (2) It shall state the names and ages of the common children of the parties and specify the regime governing their property relations, as well as the properties involved. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights, administration of community or conjugal property, and other matters similarly requiring urgent action. (3) It must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) It shall be filed in six copies. The petitioner shall serve a copy of the petition on the Office of the Solicitor General and the Office of the City or Provincial Prosecutor, within five days from the date of its filing and submit to the court proof of such service within the same period. Failure to comply with any of the preceding requirements may be a ground for immediate dismissal of the petition. Sec. 6. Summons. The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (1) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and

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Secs. 7-9

in such places as the court may order. In addition, a copy of the summons shall be served on the respondent at his last known address by registered mail or any other means the court may deem sufficient. (2) The summons to be published shall be contained in an order of the court with the following date: (a) title of the case; (b) docket number; (c) nature of the petition; (d) principal grounds of the petition and the reliefs prayed for; and (e) a directive for the respondent to answer within thirty days from the last issue of publication. Sec. 7. Motion to dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Sec. 8. Answer. (1) The respondent shall file his answer within fifteen days from service of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by the respondent himself and not by counsel or attorney-in-fact. (2) If the respondent fails to file an answer, the court shall not declare him or her in default. (3) Where no answer if filed or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Sec. 9. Investigation report of public prosecutor. (1) Within one month after receipt of the court order mentioned in paragraph (3) of Section 8 above, the public prosecutor shall submit a report to the court stating whether the parties are in collusion and serve copies thereof on the parties and their respective counsels, if any. (2) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of a copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition.

Secs. 10-12

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(3) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 10. Social worker. The court may require a social worker to conduct a case study and submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Sec. 11. Pre-trial. (1) Pre-trial mandatory. A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of he public prosecutor that no collusion exists between the parties. (2) Notice of pre-trial. (a) The notice of pre-trial shall contain: (1) the date of pre-trial conference; and

(2) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial. (b) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (c) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Sec. 12. Contents of pre-trial brief. The pre-trial brief shall contain the following: (a) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof; (b) A concise statement of their respective claims together with the applicable laws and authorities; (c) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

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Secs. 13-14

(d) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (e) The number and names of the witnesses and their respective affidavits; and (f) Such other matters as the court may require. Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pretrial under the succeeding paragraphs. Sec. 13. Effect of failure to appear at the pre-trial. (a) if the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (b) If the respondent has filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days thereafter a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Sec. 14. Pre-trial conference. At the pre-trial conference the court: (a) May refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. (b) In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid it in the prompt disposition of the petition. Sec. 15. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference,

Secs. 15-16

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the action taken thereon, the amendments allowed on the pleadings, and, except as to the ground of declaration of nullity or annulment, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 16 of this Rule; (2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. (c) The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (d) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case, unless modified by the court to prevent manifest injustice. (e) The parties shall have five days from receipt of the pretrial order to propose corrections or modifications. Sec. 16. Prohibited compromise. The court shall not allow compromise on prohibited matters, such as the following: (a) (b) (c) (d) (e) (f) The civil status of persons; The validity of a marriage or of a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; and Future legitime.

Sec. 17. Trial.

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(1) The presiding judge shall personally conduct the trial of the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (2) The grounds for declaration of absolute nullity or annulment of marriage must proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (3) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear, or timidity; would violate the right of a party to privacy; or would be offensive to decency or public morals. (4) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Sec. 18. Memoranda. The court may require the parties and the public prosecutor, in consultation with the Office of the Solicitor General, to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. It may require the Office of the Solicitor General to file its own memorandum if the case is of significant interest to the State. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 19. Decision. (1) If the court renders a decision granting the petition, it shall declare therein that the decree of absolute nullity or decree of annulment shall be issued by the court only after compliance with Articles 50 and 51 of the Family Code as implemented under the Rule on Liquidation, Partition and Distribution of Properties. (2) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall be published once in a newspaper of general circulation.

Secs. 20-21

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(3) The decision becomes final upon the expiration of fifteen days from notice to the parties. Entry of judgment shall be made if no motion for reconsideration or new trial, or appeal is filed by any of the parties, the public prosecutor, or the Solicitor General. (4) Upon the finality of the decision, the court shall forthwith issue the corresponding decree if the parties have no properties. If the parties have properties, the court shall observe the procedure prescribed in Section 21 of this Rule. The entry of judgment shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the petition for declaration of absolute nullity or annulment of marriage is located. Sec. 20. Appeal. (1) Pre-condition. No appeal from the decision shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. (2) Notice of appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal on the adverse parties. Sec. 21. Liquidation, partition and distribution, custody, support of common children and delivery of their presumptive legitimes. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody, support of common children and delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the Family Code unless such matters had been adjudicated in previous judicial proceedings. Sec. 22. Issuance of Decree of Declaration of Absolute Nullity or Annulment of Marriage. (a) The court shall issue the Decree after: (1) Registration of the entry of judgment granting the

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Secs. 22-23

petition for declaration of nullity or annulment of marriage in the Civil Registry where the marriage was celebrated and in the Civil Registry of the place where the Family Court is located; (2) Registration of the approved partition and distribution of the properties of the spouses in the proper Register of Deeds where the real properties are located; and (3) The delivery of the childrens presumptive legitimes in cash, property, or sound securities. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Except in the case of children under Articles 36 and 53 of the Family Code, the court shall order the Local Civil Registrar to issue an amended birth certificate indicating the new civil status of the children affected. Sec. 23. Registration and publication of the decree; decree as best evidence. (a) The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) In case service of summons was made by publication, the parties shall cause the publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) The registered Decree shall be the best evidence to prove the declaration of absolute nullity or annulment of marriage and shall serve as notice to third persons concerning the properties of petitioner and respondent as well as the properties or presumptive legitimes delivered to their common children. Sec. 24. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and ter-

Secs. 24-25

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minated, without prejudice to the settlement of the estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment of nullity or annulment, the judgment shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts. Sec. 25. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.

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Appendix 2
RULE ON LEGAL SEPARATION
Section 1. Scope. This Rule shall govern petitions for legal separation under the Family Code of the Philippines. The Rules of Court shall apply suppletorily. Sec. 2. Petition. (a) Who may and when to file. (1) A petition for legal separation may be filed only by the husband or the wife, as the case may be, within five years from the time of the occurrence of any of the following causes: (a) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (b) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (c) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (d) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (e) Drug addiction or habitual alcoholism of the respondent; (f) Lesbianism or homosexuality of the respondent; (g) Contracting by the respondent of a subsequent bigamous marriage, whether in or outside the Philippines;
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Sec. 3

APPENDIX 2 Rule on Legal Separation

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(h) ent;

Sexual infidelity or perversion of the respond-

(i) Attempt on the life of the petitioner by the respondent; or (j) Abandonment of petitioner by respondent without justifiable cause for more than one year. (b) Contents and form. The petition for legal separation shall state: (1) action. Allege the complete facts constituting the cause of

(2) State the names and ages of the common children of the parties, specify the regime governing their property relations, the properties involved, and creditors, if any. If there is no adequate provision in a written agreement between the parties, the petitioner may apply for a provisional order for spousal support, custody and support of common children, visitation rights administration of community or conjugal property, and other similar matters requiring urgent action. (3) Be verified and accompanied by a certification against forum shopping. The verification and certification must be personally signed by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. If the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine embassy or legation, consul general, consul or vice-consul or consular agent in said country. (4) Be filed in six copies. The petitioner shall, within five days from such filing, furnish a copy of the petition to the City or Provincial Prosecutor and the creditors, in any, and submit to the court proof of such service within the same period. Failure to comply with the preceding requirements may be a ground for immediate dismissal of the petition. Sec. 3. Summons. The service of summons shall be governed by Rule 14 of the Rules of Court and by the following rules: (a) Where the respondent cannot be located at his given address or his whereabouts are unknown and cannot be ascertained by diligent inquiry, service of summons may, by leave of court, be

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Secs. 4-6

effected upon him by publication once a week for two consecutive weeks in a newspaper of general circulation in the Philippines and in such place as the court may order. In addition, a copy of the summons shall be served on respondent at his last known address by registered mail or by any other means the court may deem sufficient. (b) The summons to be published shall be contained in an order of the court with the following data (1) title of the case; (2) docket number; (3) nature of the petition; (4) principal grounds of the petition and the reliefs prayed for; and (5) a directive for respondent to answer within thirty days from the last issue of publication. Sec. 4. Motion to Dismiss. No motion to dismiss the petition shall be allowed except on the ground of lack of jurisdiction over the subject matter or over the parties; provided, however, that any other ground that might warrant a dismissal of the case may be raised as an affirmative defense in an answer. Sec. 5. Answer. (a) The respondent shall file his answer within fifteen days from receipt of summons, or within thirty days from the last issue of publication in case of service of summons by publication. The answer must be verified by respondent himself and not by counsel or attorney-in-fact. (b) If the respondent fails to file an answer, the court shall not declare him in default. (c) Where no answer is filed, or if the answer does not tender an issue, the court shall order the public prosecutor to investigate whether collusion exists between the parties. Sec. 6. Investigation Report of Public Prosecutor. (a) Within one month after receipt of the court order mentioned in paragraph (c) of the preceding section, the public prosecutor shall submit a report to the court on whether the parties are in collusion and serve copies on the parties and their respective counsels, if any. (b) If the public prosecutor finds that collusion exists, he shall state the basis thereof in his report. The parties shall file their respective comments on the finding of collusion within ten days from receipt of copy of the report. The court shall set the report for hearing and if convinced that the parties are in collusion, it shall dismiss the petition.

Secs. 7-9

APPENDIX 2 Rule on Legal Separation

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(c) If the public prosecutor reports that no collusion exists, the court shall set the case for pre-trial. It shall be the duty of the public prosecutor to appear for the State at the pre-trial. Sec. 7. Social Worker. The court may require a social worker to conduct a case study and to submit the corresponding report at least three days before the pre-trial. The court may also require a case study at any stage of the case whenever necessary. Sec. 8. Pre-trial. (a) Pre-trial mandatory. A pre-trial is mandatory. On motion or motu proprio, the court shall set the pre-trial after the last pleading has been served and filed, or upon receipt of the report of the public prosecutor that no collusion exists between the parties on a date not earlier than six months from date of the filing of the petition. (b) Notice of Pre-trial. (1) The notice of pre-trial shall contain: (a) the date of pre-trial conference, and

(b) an order directing the parties to file and serve their respective pre-trial briefs in such manner as shall ensure the receipt thereof by the adverse party at least three days before the date of pre-trial. (2) The notice shall be served separately on the parties and their respective counsels as well as on the public prosecutor. It shall be their duty to appear personally at the pre-trial. (3) Notice of pre-trial shall be sent to the respondent even if he fails to file an answer. In case of summons by publication and the respondent failed to file his answer, notice of pre-trial shall be sent to respondent at his last known address. Sec. 9. Contents of pre-trial brief. The pre-trial brief shall contain the following: (1) A statement of the willingness of the parties to enter into agreements as may be allowed by law, indicating the desired terms thereof. (2) A concise statement of their respective claims together with the applicable laws and authorities; (3) Admitted facts and proposed stipulations of facts, as well as the disputed factual and legal issues;

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Secs. 10-11

(4) All the evidence to be presented, including expert opinion, if any, briefly stating or describing the nature and purpose thereof; (5) The number and parties of the witnesses and their respective affidavits; and (6) Such other matters as the court may require. Failure to file the pre-trial brief or to comply with its required contents shall have the same effect as failure to appear at the pretrial under the succeeding section. Sec. 10. Effect of failure to appear at the pre-trial. (1) If the petitioner fails to appear personally, the case shall be dismissed unless his counsel or a duly authorized representative appears in court and proves a valid excuse for the non-appearance of the petitioner. (2) If the respondent filed his answer but fails to appear, the court shall proceed with the pre-trial and require the public prosecutor to investigate the non-appearance of the respondent and submit within fifteen days a report to the court stating whether his non-appearance is due to any collusion between the parties. If there is no collusion, the court shall require the public prosecutor to intervene for the State during the trial on the merits to prevent suppression or fabrication of evidence. Sec. 11. Pre-trial conference. At the pre-trial conference, the court may refer the issues to a mediator who shall assist the parties in reaching an agreement on matters not prohibited by law. The mediator shall render a report within one month from referral which, for good reasons, the court may extend for a period not exceeding one month. In case mediation is not availed of or where it fails, the court shall proceed with the pre-trial conference, on which occasion it shall consider the advisability of receiving expert testimony and such other matters as may aid in the prompt disposition of the petition. Sec. 12. Pre-trial order. (a) The proceedings in the pre-trial shall be recorded. Upon termination of the pre-trial, the court shall issue a pre-trial order which shall recite in detail the matters taken up in the conference, the action taken thereon, the amendments allowed on the pleadings,

Secs. 12-13

APPENDIX 2 Rule on Legal Separation

249

and, except as to the ground of legal separation, the agreements or admissions made by the parties on any of the matters considered, including any provisional order that may be necessary or agreed upon by the parties. (b) Should the action proceed to trial, the order shall contain a recital of the following: (1) Facts undisputed, admitted, and those which need not be proved subject to Section 13 of this Rule; (2) Factual and legal issues to be litigated; (3) Evidence, including objects and documents, that have been marked and will be presented; (4) Names of witnesses who will be presented and their testimonies in the form of affidavits; and (5) Schedule of the presentation of evidence. The pre-trial order shall also contain a directive to the public prosecutor to appear for the State and take steps to prevent collusion between the parties at any stage of the proceedings and fabrication or suppression of evidence during the trial on the merits. (c) The parties shall not be allowed to raise issues or present witnesses and evidence other than those stated in the pre-trial order. The order shall control the trial of the case unless modified by the court to prevent manifest injustice. (d) The parties shall have five days from receipt of the pretrial order to propose corrections or modifications. Sec. 13. Prohibited compromise. The court shall not allow compromise on prohibited matters, such as the following: (1) (2) (3) (4) (5) (6) The civil status of persons; The validity of a marriage or of a legal separation; Any ground for legal separation; Future support; The jurisdiction of courts; and Future legitime.

Sec. 14. Trial. (a) The presiding judge shall personally conduct the trial of

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Secs. 14-16

the case. No delegation of the reception of evidence to a commissioner shall be allowed except as to matters involving property relations of the spouses. (b) The grounds for legal separation must be proved. No judgment on the pleadings, summary judgment, or confession of judgment shall be allowed. (c) The court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made if the court determines on the record that requiring a party to testify in open court would not enhance the ascertainment of truth; would cause to the party psychological harm or inability to effectively communicate due to embarrassment, fear or timidity; would violate the partys right to privacy; or would be offensive to decency or public morals. (d) No copy shall be taken nor any examination or perusal of the records of the case or parts thereof be made by any person other than a party or counsel of a party, except by order of the court. Sec. 15. Memoranda. The court may require the parties and the public prosecutor to file their respective memoranda in support of their claims within fifteen days from the date the trial is terminated. No other pleadings or papers may be submitted without leave of court. After the lapse of the period herein provided, the case will be considered submitted for decision, with or without the memoranda. Sec. 16. Decision. (a) The court shall deny the petition on any of the following grounds: (1) The aggrieved party has condoned the offense or act complained of or has consented to the commission of the offense or act complained of; (2) There is connivance in the commission of the offense or act constituting the ground for legal separation; (3) Both parties have given ground for legal separation; (4) There is collusion between the parties to obtain the decree of legal separation; or (5) (b) The action is barred by prescription. If the court renders a decision granting the petition, it

Sec. 17

APPENDIX 2 Rule on Legal Separation

251

shall declare therein that the Decree of Legal Separation shall be issued by the court only after full compliance with liquidation under the Family Code. However, in the absence of any property of the parties, the court shall forthwith issue a Decree of Legal Separation which shall be registered in the Civil Registry where the marriage was recorded and in the Civil Registry where the Family Court granting the legal separation is located. (c) The decision shall likewise declare that: (1) The spouses are entitled to live separately from each other but the marriage bond is not severed; (2) The obligation of mutual support between the parties ceases; and (3) The offending spouse is disqualified from inheriting from the innocent spouse by intestate succession, and provision in favor of the offending spouse made in the will of the innocent spouse are revoked by operation of law. (d) The parties, including the Solicitor General and the public prosecutor, shall be served with copies of the decision personally or by registered mail. If the respondent summoned by publication failed to appear in the action, the dispositive part of the decision shall also be published once in a newspaper of general circulation. Sec. 17. Appeal. (a) Pre-condition. No appeal shall be allowed unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment. (b) Notice of Appeal. An aggrieved party or the Solicitor General may appeal from the decision by filing a Notice of Appeal within fifteen days from notice of denial of the motion for reconsideration or new trial. The appellant shall serve a copy of the notice of appeal upon the adverse parties. Sec. 18. Liquidation, partition and distribution, custody, and support of minor children. Upon entry of the judgment granting the petition, or, in case of appeal, upon receipt of the entry of judgment of the appellate court granting the petition, the Family Court, on motion of either party, shall proceed with the liquidation, partition and distribution of the properties of the spouses, including custody and support of common children, under the Family Code unless

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Secs. 18-20

such matters had been adjudicated in previous judicial proceedings. Sec. 19. Issuance of Decree of Legal Separation. (a) The court shall issue the Decree of Legal Separation after: (1) registration of the entry of judgment granting the petition for legal separation in the Civil Registry where the marriage was celebrated and in the Civil Registry where the Family Court is located; and (2) registration of the approved partition and distribution of the properties of the spouses, in the proper Register of Deeds where the real properties are located. (b) The court shall quote in the Decree the dispositive portion of the judgment entered and attach to the Decree the approved deed of partition. Sec. 20. Registration and publication of the Decree of Legal Separation; decree as best evidence. (a) Registration of decree. The prevailing party shall cause the registration of the Decree in the Civil Registry where the marriage was registered, in the Civil Registry of the place where the Family Court is situated, and in the National Census and Statistics Office. He shall report to the court compliance with this requirement within thirty days from receipt of the copy of the Decree. (b) Publication of decree. In case service of summons was made by publication, the parties shall cause the publication of the Decree once in a newspaper of general circulation. (c) Best evidence. The registered Decree shall be the best evidence to prove the legal separation of the parties and shall serve as notice to third persons concerning the properties of petitioner and respondent. Sec. 21. Effect of death of a party; duty of the Family Court or Appellate Court. (a) In case a party dies at any stage of the proceedings before the entry of judgment, the court shall order the case closed and terminated without prejudice to the settlement of estate in proper proceedings in the regular courts. (b) If the party dies after the entry of judgment, the same shall be binding upon the parties and their successors in interest in the settlement of the estate in the regular courts.

Secs. 21-23

APPENDIX 2 Rule on Legal Separation

253

Sec. 22. Petition for revocation of donations. (a) Within five years from the date of the decision granting the petition for legal separation has become final, the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations in favor of the offending spouse. (b) The revocation of the donations shall be recorded in the Register of Deeds in the places where the properties are located. (c) Alienations, liens, and encumbrances registered in good faith before the recording of the petition for revocation in the registries of property shall be respected. (d) After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a beneficiary in any insurance policy even if such designation were stipulated as irrevocable. The revocation or change shall take effect upon written notification thereof to the insurer. Sec. 23. Decree of Reconciliation. (a) If the spouses had reconciled, a joint manifestation under oath, duly signed by the spouses, may be filed in the same proceeding for legal separation. (b) If the reconciliation occurred while the proceeding for legal separation is pending, the court shall immediately issue an order terminating the proceeding. (c) If the reconciliation occurred after the rendition of the judgment granting the petition for legal separation but before the issuance of the Decree, the spouses shall express in their manifestation whether or not they agree to revive the former regime of their property relations or choose a new regime. The court shall immediately issue a Decree of Reconciliation declaring that the legal separation proceeding is set aside and specifying the regime of property relations under which the spouses shall be covered. (d) If the spouses reconciled after the issuance of the Decree, the court, upon proper motion, shall issue a decree of reconciliation declaring therein that the Decree is set aside but the separation of property and any forfeiture of the share of the guilty spouse already effected subsists, unless the spouses have agreed to revive their former regime of property relations or adopt a new regime.

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Sec. 24

(e) In case of paragraphs (b), (c), and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof. (f) The decree of reconciliation shall be recorded in the Civil Registries where the marriage and the Decree had been registered. Sec. 24. Revival of property regime or adoption of another. (a) In case of reconciliation under Section 23, paragraph (c) above, the parties shall file a verified motion for revival of regime of property relations or the adoption of another regime of property relations in the same proceeding for legal separation attaching to said motion their agreement for the approval of the court. (b) The agreement which shall be verified shall specify the following: (1) The properties to be contributed to the restored or new regime; (2) Those to be retained as separate properties of each spouse; and (3) The names of all their known creditors, their addresses, and the amounts owing to each. (c) The creditors shall be furnished with copies of the motion and the agreement. (d) The court shall require the spouses to cause the publication of their verified motion for two consecutive weeks in a newspaper of general circulation. (e) After due hearing, and the court decides to grant the motion, it shall issue an order directing the parties to record the order in the proper registries of property within thirty days from receipt of a copy of the order and submit proof of compliance within the same period. Sec. 25. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.

Sec. 25

APPENDIX 2 Rule on Legal Separation

255

256

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Appendix 3
RULE ON PROVISIONAL ORDERS
Section 1. When Issued. Upon receipt of a verified petition for declaration of absolute nullity of void marriage or for annulment of voidable marriage, or for legal separation, and at any time during the proceeding, the court, motu proprio or upon application under oath of any of the parties, guardian or designated custodian, may issue provisional orders and protection orders with or without a hearing. These orders may be enforced immediately, with or without a bond, and for such period and under such terms and conditions as the court may deem necessary. Sec. 2. Spousal Support. In determining support for the spouses, the court may be guided by the following rules: (a) In the absence of adequate provisions in a written agreement between the spouses, the spouses may be supported from the properties of the absolute community or the conjugal partnership. (b) The court may award support to either spouse in such amount and for such period of time as the court may deem just and reasonable based on their standard of living during the marriage. (c) The court may likewise consider the following factors: (1) whether the spouse seeking support is the custodian of a child whose circumstances make it appropriate for that spouse not to seek outside employment; (2) the time necessary to acquire sufficient education and training to enable the spouse seeking support to find appropriate employment, and that spouses future earning capacity; (3) the duration of the marriage; (4) the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to the marriage, including services ren256

Secs. 3-4

APPENDIX 3 Rule on Provisional Orders

257

dered in home-making, child care, education, and career building of the other spouse; (7) the age and health of the spouses; (8) the physical and emotional conditions of the spouses; (9) the ability of the supporting spouse to give support, taking in consideration that spouses earning capacity, earned and unearned income, assets and standard of living; and (10) any other factor the court may deem just and equitable. (d) The Family Court may direct the deduction of the provisional support from the salary of the spouse. Sec. 3. Child Support. The common children of the spouses shall be supported from the properties of the absolute community or the conjugal partnership. Subject to the sound discretion of the court, either parent or both may be ordered to give an amount necessary for the support, maintenance, and education of the child. It shall be in proportion to the resources or means of the giver and to the necessities of the recipient. In determining the amount of provisional support, the court may likewise consider the following factors: (1) the financial resources of the custodial and non-custodial parent and those of the child; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-monetary contributions that the parents will make toward the care and well-being of the child. The Family Court may direct the deduction of the provisional support from the salary of the parent. Sec. 4. Child Custody. In determining the right party or person to whom the custody of the child of the parties may be awarded pending the petition, the court shall consider the best interests of the child and shall give paramount consideration to the material and moral welfare of the child. The court may likewise consider the following factors: (a) the agreement of the parties; (b) the desire and ability of each parent to foster an open and loving relationship between the child and the other parent; (c) the childs health, safety, and welfare; (d) any history of child or spousal abuse by the person seeking custody or who has had any filial relationship with the child, including anyone courting the parent; (e) the nature and frequency of contact with both parents; (f) habitual use of alcohol or regulated substances;

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Secs. 5-6

(g) marital misconduct; (h) the most suitable physical, emotional, spiritual, psychological and educational environment; and (i) the preference of the child, if over seven years of age and of sufficient discernment, unless the parent chosen is unfit. The court may award provisional custody in the following order of preference: (1) to both parents jointly; (2) to either parent taking into account all relevant considerations under the foregoing paragraph, especially the choice of the child over seven years of age, unless the parent chosen is unfit; (3) to the surviving grandparent, or if there are several of them, to the grandparent chosen by the child over seven years of age and of sufficient discernment, unless the grandparent is unfit or disqualified; (4) to the eldest brother or sister over twenty-one years of age, unless he or she is unfit or disqualified; (5) to the childs actual custodian over twenty-one years of age, unless unfit or disqualified; or (6) to any other person deemed by the court suitable to provide proper care and guidance for the child. The custodian temporarily designated by the court shall give the court and the parents five days notice of any plan to change the residence of the child or take him out of his residence for more than three days provided it does not prejudice the visitation rights of the parents. Sec. 5. Visitation Rights. Appropriate visitation rights shall be provided to the parent who is not awarded provisional custody unless found unfit or disqualified by the court. Sec. 6. Hold Departure Order. Pending resolution of the petition, no child of the parties shall be brought out of the country without prior order from the court. The court, motu proprio or upon application under oath, may issue ex-parte a hold departure order, addressed to the Bureau of Immigration and Deportation, directing it not to allow the departure of the child from the Philippines without the permission of the court. The Family Court issuing the hold departure order shall furnish the Department of Foreign Affairs and the Bureau of Immigration and Deportation of the Department of Justice a copy of the hold departure order issued within twenty-four hours from the time of its issuance and through the fastest available means of transmittal. The hold-departure order shall contain the following information:

Sec. 7

APPENDIX 3 Rule on Provisional Orders

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(a) the complete name (including the middle name), the date and place of birth, and the place of last residence of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined; (b) the complete title and docket number of the case in which the hold departure was issued; (c) (d) the specific nature of the case; and the date of the hold-departure order.

If available, a recent photograph of the person against whom a hold-departure order has been issued or whose departure from the country has been enjoined should also be included. The court may recall the order, motu proprio or upon verified motion of any of the parties after summary hearing, subject top such terms and conditions as may be necessary for the best interests of the child. Sec. 7. Order of Protection. The court may issue an Order of Protection requiring any person: (a) to stay away from the home, school, business, or place of employment of the child, other parent or any other party, and to stay away from any other specific place designated by the court; (b) to refrain from harassing, intimidating, or threatening such child or the other parent or any person to whom custody of the child is awarded; (c) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, or welfare of the child; (d) to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods; (e) to permit a designated party to enter the residence during a specified period of time in order to take personal belonging not contested in a proceeding pending with the Family Court; (f) to comply with such orders as are necessary for the protection of the child. Sec. 8. Administration of Common Property. If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the court may, upon application of

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Secs. 8-9

the aggrieved party under oath, issue a provisional order appointing the applicant or a third person as receiver or sole administrator of the common property subject to such precautionary conditions it may impose. The receiver or administrator may not dispose of or encumber any common property or specific separate property of either spouse without prior authority of the court. The provisional order issued by the court shall be registered in the proper Register of Deeds and annotated in all titles of properties subject of the receivership or administration. Sec. 9. Effectivity. This Rule shall take effect on March 15, 2003 following its publication in a newspaper of general circulation not later than March 7, 2003.

THE LAW ON MARRIAGE


By VICENTE C. RAMIREZ, JR. Practising Lawyer and Professorial Lecturer

Published & Distributed by 856 Nicanor Reyes, Sr. St. Tel. Nos. 736-05-67 735-13-64 1977 C.M. Recto Avenue Tel. Nos. 735-55-27 735-55-34 Manila, Philippines www.rexinteractive.com i

Philippine Copyright, 2003 by VICENTE C. RAMIREZ, JR.

ISBN 971-23-3812-6
No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official pro-ceedings with proper citation. Any copy of this book without the corresponding number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED BY THE AUTHOR

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DEDICATION
This book is lovingly dedicated to KATHY, E R, TSINX, JOHN V, MAC-MAC, and DEBS, without whom my life would be meaningless. VCR

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ACKNOWLEDGMENT
The author acknowledges the invaluable help, guidance, and inspiration of Kathy. She was the one who urged him to make this book user-friendly. Without her, this book could not have seen any fruition. He acknowledges also Bong, Kim, and Grace Joy Calayag for the use of their computer and printer and for their willingness to share with him and his family what they can. Such generosity cannot be quantified. Only God can return their generosity and hopefully not only in this lifetime but, more importantly, in the next life. He acknowledges also the help of his students of LLB 1-3, College of Law, Polytechnic University of the Philippines, whose questions often put the subject matter under discussion in the proper perspective. The author also acknowledges his indebtedness to many authors on the subject matter of this book, Dr. Arturo M. Tolentino, Justices Ramon C. Aquino and Carolina C. Grio-Aquino, Justice Alicia V. Sempio-Diy, Justice Edgardo L. Paras, the late Justice Desiderio P. Jurado, the late Don Vicente J. Francisco, the late Dean Francisco R. Capistrano, Prof. Ernesto L. Pineda, and Prof. Melencio S. Sta. Maria, Jr., whose works immensely helped him. Lastly, the author acknowledges the help, guidance, mercy, and love of the almighty God, to whom he owes everything that he has and what he is, and without whom he is utterly helpless. May all His creation praise and honor HIM! VCR

PREFACE

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The main objective of this work is to expound the provisions on the law on marriage as simple as can be without changing their meanings so that even those who are non-lawyers and non-law students can understand them without difficulty. The maxim ignorance of the law excuses no one from compliance therewith1 does not mean that the legislature can just enact laws or statutes without seeing to it that the people are notified of them. As explained by the Supreme Court in Taada, et al. v. Tuvera, et al.,2 it would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatever, not even a constructive one. This has its basis on two constitutional rights of the people, namely, to be informed of matters of public concern3 and to due process.4 Part of informing the people of matters of public concern is to explain the laws in such a way that the people can easily understand them. And to see to it that the law on marriage is explained accurately, the author shall expound its provisions through the decisions of the Supreme Court applying them to the facts of the case. The authors opinion will come in only if the Supreme Court has had no opportunity yet to apply and construe a statutory provision. Where there are conflicting decisions on a particular statutory provision, the author will offer his opinion only to help clarify the provision in question. Where jurists have conflicting opinions, he will take a stand as to what he thinks is the correct opinion regarding a specific legal question. But even then his opinion would be based on what he thinks is or would be the logical conclusion or position of the Supreme Court on the specific legal question. This is because the law is what the Supreme Court has decided, not what the jurists or professors or textbook writers of the law think or opine. This is not to denigrate them. More often than not, the justices of the

Art. 3, Civil Code of the Philippines. G.R. No. L-63915, April 24, 1985 and December 29, 1986. 3 Sec. 7 of Art. III, Bill of Rights, 1987 Constitution. 4 Sec. 1, Art. III, Constitution.
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Supreme Court often go to them to seek their guidance as to what the proper construction or interpretation of a legal provision of the law is. But once the Supreme Court decides what the construction or the interpretation of a specific legal provision is, then it becomes part and parcel of the law.5 VCR

Art. 8, Civil Code of the Philippines.

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TABLE OF CONTENTS
Title I. MARRIAGE
Chapter I REQUISITES OF MARRIAGE Legal concept, Art. 1................................................................ Marriage, a special contract ................................................... Marriage, a permanent union ................................................. Marriage, only between a man and a woman ....................... Marriage governed only by law .............................................. Marriage for conjugal and family life .................................... Marriage, an inviolable social institution .............................. Legal presumption of marriage .............................................. Illustrative cases of cogent proof overcoming the presumption of marriage ................................................ Presumption of marriage; proving marriage ......................... Duty of the State to protect marriage.................................... Active participation of the State in cases involving marriages ......................................................................... Default, judgment on the pleadings, summary judgment, not allowed..................................................... Legal sanctions on notaries public and lawyers ................... Requisites for a valid marriage .............................................. Essential requisites, Art. 2 ..................................................... Only a man and a woman can enter into a valid marriage........................................................................... Legal capacity .......................................................................... Consent freely given ................................................................ Formal requisites, Art. 3 ......................................................... Solemnizing officers ................................................................. Solemnizing officers; incumbent members of the judiciary ................................................................ Solemnizing officers; priests, rabbi, imam, minister, etc. .... Solemnizing officers; ship captain or airplane chief ............. Solemnizing officers; military commander.............................
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1 2 2 3 3 4 4 5 7 10 11 12 14 17 17 18 18 19 22 23 23 25 25 25 26

Solemnizing officers; consul-general, consul, vice-consul ..... Solemnizing officers; mayor of a municipality or city........... Solemnizing officers; without authority ................................. Place of solemnizing marriage ................................................ Valid marriage license............................................................. Courts can declare a marriage null and void ab initio based on lack of a marriage license even if the basis of the petition is psychological incapacity if the evidence so warrants ............................................ Marriage license; prohibition of issuance of marriage license to widows ............................................................. Marriage license; exemptions ................................................ Marriage ceremony .................................................................. Absence, defect, and irregularity, their effect, Art. 4 ........... Absence .................................................................................... Defect ........................................................................................ Irregularity ............................................................................... Art. Art. Art. Art. Art. Art. 5 ................................................................................ 6 ................................................................................ 7 ................................................................................ 8 ................................................................................ 9 ................................................................................ 10 ..............................................................................

26 26 26 29 30

32 33 35 36 38 38 38 39 40 40 40 41 42 42 43 43 44 46 46 47 48 49 50 50 51 51 52 52 53 53 54 54

Procedure in obtaining a marriage license ............................ Art. 11 .............................................................................. Art. 12 .............................................................................. Art. 13 .............................................................................. Art. 14 .............................................................................. Art. 15 .............................................................................. Art. 16 .............................................................................. Art. 17 .............................................................................. Art. 18 .............................................................................. Art. 19 .............................................................................. Art. 20 .............................................................................. Foreigners and stateless persons wanting to marry in the Philippines, Art. 21 ......................................................... Contents of marriage certificate, Art. 22 ............................... Duties of the solemnizing officer, Art. 23 .............................. Art. 29 .............................................................................. Art. 30 .............................................................................. Duties of the Local Civil Registrar, Art. 24........................... Art. 25 ..............................................................................
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Marriages solemnized in foreign countries, Art. 26 .............. Marriage in foreign countries; lex loci celebrationis ............ Proving the unwritten law of a foreign country .................... Foreign marriages; exempted from the lex loci celebrationis .................................................................... The divorce recognized in the Philippines ............................. Chapter II MARRIAGES EXEMPT FROM LICENSE REQUIREMENT Marriages in articulo mortis, Art. 27 ..................................... Marriages in remote places, Art. 28....................................... Art. 29 .............................................................................. Art. 30 .............................................................................. Art. 31 .............................................................................. Art. 32 .............................................................................. Marriages between members of an ethnic cultural minority, Art. 33 ............................................... Couple cohabiting for at least 5 years, Art. 34 ..................... Chapter III VOID AND VOIDABLE MARRIAGES Categories of void marriages .................................................. Void for lack of some requisites of marriage, Art. 35 .............................................................................. Comparison of Art. 35(5), Family Code to Art. 86(1) in relation to Art. 85(4), of the Civil Code .................... Void marriage due to psychological incapacity, Art. 36 .............................................................................. Clinical psychologist as an expert witness; his qualifications ............................................................. Is there a need for personal psychological examination of both spouses ................................................................ The Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC) clarifies guidelines No. 2 and No. 8 of Molina .............................................. Incestuous marriages, Art. 37 ................................................ Void marriage by reason of public policy, Art. 38 ................. Collateral blood relatives within the fourth civil degree ...... Determining the civil degree between blood relatives .......... Relationships not impediments to marriage ......................... Relationships impediments to marriage ................................ Family relations .......................................................................
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57 58 59 60 61

62 63 63 64 64 65 65 66

69 70 71 71 80 81

82 84 85 86 86 87 88 88

Killing a spouse by one party ................................................. Comparison between Art. 38(9) of the Family Code and Art. 80(6) of the Civil Code ..................................... Imprescriptibility of actions for declaration of nullity, Art. 39 .............................................................................. Bigamous/polygamous marriages, Art. 40 ............................. Remarrying without complying with Art. 40 is bigamous ... Effect of Art. 40 on void marriages as defense against bigamy ................................................................ Petition for nullity without intent to remarry ...................... The need for judicial decree in void marriages ..................... Art. 41 .............................................................................. Not bigamous under Art. 41 ................................................... Well-founded belief construed .............................................. Effect of reappearance of absent spouse, Art. 42 .................. Effects of the termination of the second marriage by reappearance, Art. 43 ................................................ Effect of bad faith of both spouses, Art. 44 ........................... Void marriages due to non-compliance with a mandatory statutory provision....................................... Who can, when to, file petition for nullity of marriage ...................................................................... Modifications introduced by the Rules on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages ..................................................... Grounds for annulment of marriage, Art. 45 ........................ Art. 46 .............................................................................. Art. 45 compared to Art. 85 of the Civil Code....................... Lack of parental or guardians consent.................................. Ratification of marriage without parental consent ............... Unsound mind .......................................................................... Fraud ........................................................................................ Fraud; non-disclosure of a crime involving moral turpitude ............................................................... Fraud; concealment of pregnancy........................................... Fraud; concealment of sexually transmissible disease ......... Fraud; concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism ...................... Force, intimidation, undue influence ..................................... Impotence ................................................................................. Sexually transmissible disease (STD), serious and seemingly incurable ........................................................ Ratification of voidable marriages ..........................................
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89 89 90 90 90 91 92 93 95 96 97 100 100 102 103 105 106 108 108 109 110 110 113 115 117 118 120 121 121 122 125 126

Marriages which cannot be ratified ....................................... Who can file, and when to file annulment of marriage, Art. 47 .............................................................................. Marriage without parental consent ........................................ Marriage with an insane person ............................................ Consent to marriage with fraud ............................................. Consent through force, intimidation, undue influence ......... Impotence ................................................................................. STD, serious and seemingly incurable ................................... Duties of the court in annulment/declaration of absolute nullity of marriage, Art. 48 ............................................ Over the public prosecutor ...................................................... On stipulation of facts and confession of judgment .............. Providing for the support and custody of minor children, duty of the court, Art. 49 ................................ How to determine support for the spouses ............................ How to determine child support ............................................. How to determine child custody ............................................. Provisional custody; order of preference ................................ Illustrative case; custody of a child to a parent .................... Law applicable when one spouse is Christian and the other Muslim regarding custody of the minor children ................................................................. Duties of the courts under Art. 50 ......................................... Effects of final judgment of annulment and declaration of nullity of marriage ...................................................... Final judgment; liquidation, partition and distribution ....... Presumptive legitime, Art. 51................................................. The reason for the presumptive legitime ............................... An oversight of the Civil Code Revision Committee ............. Compulsory compliance with Articles 50 and 51 .................. The Procedure under the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages and distinction between decision and decree of annulment of marriage ........................... Registration of the decree, a duty .......................................... When the decree has to be published; registered decree, best evidence.................................................................... Effect of death of a party on the petition for annulment........................................................................ Duties of the former spouses, Art. 52 .................................... Art. 53 ..............................................................................
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127 128 129 129 130 130 130 130 130 131 134 135 136 137 137 138 139

148 149 150 151 152 155 158 158

159 160 160 160 160 161

Effects of the recording ........................................................... Status of children conceived or born before final judgment of annulment or declaration of nullity, Art. 54............................................................. Damages in marriages annulled or declared null and void....................................................................

161 161 162

Title II. LEGAL SEPARATION


Concept of legal separation ..................................................... Legal separation and separation of property ........................ Legal separation and separation de facto .............................. History of divorce in the Philippines ..................................... Changes introduced by the Family Code ............................... Grounds for legal separation, Art. 55 .................................... Repeated physical violence and grossly abusive conduct ..... Physical violence or moral pressure to compel the petitioner to change religious or political affiliation .... Attempt of respondent to corrupt or induce the petitioner, a common child, or child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement ............................................... Final judgment sentencing respondent to imprisonment of more than six years, even if pardoned ...................... Drug addiction or habitual alcoholism of the respondent .... Lesbianism and homosexuality .............................................. Contracting a subsequent bigamous marriage ...................... Sexual infidelity or perversion .............................................. Attempt by the respondent against life of the petitioner.......................................................................... Abandonment of petitioner by respondent without justifiable cause ............................................................... Grounds for denying petition for legal separation, Art. 56 .............................................................................. Condonation ............................................................................. Consent ..................................................................................... Connivance ............................................................................... Mutual guilt ............................................................................. Collusion ................................................................................. Prescription, Art. 57 ................................................................ Effect of death of a spouse during the pendency of an action for legal separation .............................................. Effects of the filing of an action for legal separation ............ Cooling-off period, Art. 58 .......................................................
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164 165 165 168 170 171 171 173

173 174 175 176 177 177 179 181 182 183 184 185 187 187 187 189 190 191

Cooling-off period; not a ban to hear administration, support, custody matters ................................................ Duty of the court, Art. 59........................................................ Stipulation of facts/confession of judgment; Art. 60 compared to Art. 101 of the Civil Code ......................... Cessation of personal rights, Art. 61 ..................................... Support and custody, Art. 62 .................................................. Effects of the decree of legal separation, Art. 63 .................. The right of consortium ........................................................... The property relations ............................................................. The custody of the minor child or children ........................... The right to inherit from the other spouse............................ The procedure under the Rule on Legal Separation ............. Distinction between decision and decree of legal separation ........................................................... Registration of the decree, a duty .......................................... When the decree has to be published; registered decree, best evidence ..................................... Donations and insurance beneficiary, Art. 64 ....................... Reconciliation ........................................................................... Duty of the reconciling spouses to the court, Art. 65 ........... Effect of reconciliation, Art. 66 ............................................... During the pendency of action ................................................ After final judgment of legal separation ................................ Before issuance of decree of legal separation ........................ After issuance of decree of legal separation .......................... Art. 66 compared to provisions of similar import in the Civil Code ............................................................. Effect of failure to file the sworn joint manifestation of reconciliation ............................................................... Duty of the court...................................................................... Agreement to revive former property regime, Art. 67 .......... Procedure ................................................................................. Procedure under the Rule on Legal Separation .................... Reviving the former property regime ..................................... Adopting a new property regime ............................................

192 193 194 198 200 201 202 202 203 204 204 204 205 205 205 207 207 208 209 209 209 210 211 211 212 212 213 215 215 216

Title III. RIGHTS AND OBLIGATIONS OF SPOUSES


Art. 68 .............................................................................. To live together ........................................................................ To observe mutual love, respect, and fidelity ........................
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217 218 220

To render mutual help and support ....................................... Art. 69 .............................................................................. Art. 70 .............................................................................. Art. 71 .............................................................................. Art. 72 .............................................................................. Art. 73 .............................................................................. Compared to Civil Code ..........................................................

222 223 225 225 226 228 229

APPENDICES
Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages ......................... Rule on Legal Separation ........................................................ Rule on Provisional Orders ..................................................... 233 244 256

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CITED PHILIPPINE CASES


Article 1 1. Arroyo v. Vazquez de Arroyo, G.R. No. 7014, August 11, 1921 2. Biton v. Momongan, Per Rec. No. L-2555, September 3, 1935 3. Brown v. Yambao, G.R. No. L-10699, October 18, 1957 4. De Jacob v. Court of Appeals, et al., G.R. No. 135216, August 19, 1999, 111 SCAD 137 5. Fernandez v. Puatu, G.R. No. L-10071, October 31, 1957 6. Goitia v. Campos Rueda, G.R. No. 11263, November 2, 1916 7. Jocson v. Robles, G.R. No. L-23433, February 10, 1968 8. Pacete, et al. v. Hon. Carriaga, et al., G.R. No. L-53880, March 17, 1994, 49 SCAD 673 9. Panganiban v. Borromeo, 58 Phil. 367 (Sept. 9, 1933) 10. 11. 12. 13. 14. 15. 16. 17. 18. People v. Opea, G.R. No. L-34954, February 20, 1981 People v. Samson, 7 SCRA 478 Perido v. Perido, 63 SCRA 97 Pugeda v. Trias, et al., G.R. No. L-16925, March 31, 1962 Republic of the Philippines v. Court of Appeals and Castro, G.R. No. 103047, September 2, 1994, 55 SCAD 157 Roque v. Hon. Encarnacion, et al., G.R. No. L-6505, August 23, 1954 Sarmiento, et al. v. Court of Appeals, et al., G.R. No. 96740, March 25, 1999, 104 SCAD 875 Sison, et al. v. Ambalada, G.R. No. 9943, March 18, 1915 Tolentino v. Paras, et al., G.R. No. L-43905, May 30, 1983
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19. 20. 21.

Tolentino v. Villanueva, et al., G.R. No. L 23264, March 15, 1974 U.S. v. Memoracion, et al., G.R. No. 11371, August 1, 1916 Villanueva v. Court of Appeals, et al., G.R. No. 84464, June 21, 1991

Article 3 1. Sy v. Court of Appeals, et al., G.R. No. 127263, April 12, 2000, 125 SCAD 284 Article 7 1. Eulogio De Cardenas v. Cardenas, et al., G.R. No. L-8218, December 15, 1955 2. Francisco v. Jason, 60 Phil. 442 3. Lao v. Dee Tim, 45 Phil. 739 4. Tenchavez v. Escao, et al., G.R. No. L-19671, November 29, 1965 Article 8 1. Navarro v. Domagtoy, Adm. Matter No. MTJ-96-1088, July 19, 1996, 72 SCAD 328 Article 9 1. People v. Janssen, 54 Phil. 176 2. People v. Rosal, 49 Phil. 509 3. Sy v. Court of Appeals, et al., G.R. No. 127263, April 12, 2000, 125 SCAD 284 4. United States v. Dulay, 10 Phil. 305 Article 26 1. Adong v. Cheong Seng Gee, G.R. No. L-18081, March 3, 1922 2. Pilapil v. Hon. Ibay-Somera, et al., G.R. No. 80116, June 30, 1989 3. Sy Joc Lieng, et al. v. Encarnacion, et al., G.R. No. 4718, March 19, 1910
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4. Van Dorn v. Hon. Romillo, Jr., et al., G.R. No. L-68470, October 8, 1985 5. Woo Yiu v. Vivo, G.R. No. 21076, March 31, 1965 6. Yam Ka Lim v. Insular Collector of Customs, G.R. No. 9906, March 5, 1915 7. Yao Kee, et al. v. Sy-Gonzales, et al., G.R. No. L-55960, November 24, 1988 Article 29 1. De Loria, et al. v. Felix, G.R. No. L-9005, June 20, 1958 Article 34 1. Jamias v. Rodriguez, 81 Phil. 303 2. Nial v. Bayadog, G.R. No. 133778, March 14, 2000, 123 SCAD 58 Article 36 1. Republic of the Philippines v. Court of Appeals and Roridel Olviano Molina, G.R. No. 108763, February 13, 1997, 79 SCAD 462 2. Hernandez v. Court of Appeals, 320 SCAD 76 3. Leouel Santos v. Court of Appeals and Bedia-Santos, G.R. No. 112019, January 4, 1995, 58 SCAD 17 4. Marcos v. Marcos, G.R. No. 136490, October 19, 2000, 136 SCAD 713. 5. Republic of the Philippines v. Dagdag, G.R. No. 109975, February, 9, 2001, 143 SCAD 214 Article 40 1. Domingo v. Court of Appeals, et al., G.R. No. 104818, September 17, 1993, 44 SCAD 955 2. Mercado v. Tan, G.R. No. 137110, August 1, 2000, 131 SCAD 128

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Article 41 1. Mercado v. Tan, supra 2. Republic of the Philippines v. Gregorio Nolasco, G.R. No. 94053, March 17, 1993 3. United States v. Macario Biasbas, G.R. No. 8381, August 14, 1913 4. United States v. Dionisio Enriquez, G.R. No. 10533, November 11, 1915 Article 44 1. Atienza v. Brillantes, Jr., Adm. Matter No. MTJ-92706, March 29, 1995, 60 SCAD 119 2. Nial v. Badayog, G.R. No. 133778, March 14, 2000 3. PNB v. Asuncion, et al., G.R. No. L-46095, November 23, 1977 4. Primcias v. Ocampo, et al., G.R. No. L-6120, January 30, 1963 5. Reyes v. Vda. de Luz, G.R. No. L-3238, April 27, 1951 6. United States v. Platon Ibaez, G.R. No. 5184, August 17, 1909 Article 45(1) 1. Adiong v. Cheong Seng Gee, 43 Phil. 56 2. Buccat v. Buccat, 72 Phil. 19 3. Roque v. Encarnacion, 95 Phil. 643 Article 45(2) 1. Menciano, et al. v. San Jose, et al., 89 Phil. 63 2. Sancho v. Abella, 58 Phil. 728 3. Torres, et al. v. Lopez, 48 Phil. 772 Article 45(3) 1. Garcia v. Montague, G.R. No. 4810, January 13, 1909 Article 45(3) Article 46(1) 1. Aquino v. Delizo, 109 Phil. 21
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2. In re Basa, 41 Phil. 275 3. In re Isada, 60 Phil. 915 4. Zari v. Flores, 94 SCRA 317 Article 45(3) Article 46(2) 1. Buccat v. Buccat, supra Article 45(4) 1. People v. Santiago, 51 Phil. 68 2. Tiongco v. Matig-a, 44 O.G. No. 1, p. 96 Article 45(5) 1. Adong v. Cheong See Gee, supra 2. Buccat v. Buccat, supra 3. Jimenez v. Caizares, 109 Phil. 273 4. Menciano, et al. v. San Jose, et al., supra 5. Ruiz v. Atienza, O.G. August 30, 1941, p. 1903 Article 48 1. Brown v. Yambao, supra 2. De Cardenas v. Cardenas, et al., supra 3. De Ocampo v. Florenciano, G. R. No. L-13553, Feb. 23, 1960 4. Roque v. Encarnacion, supra 5. Tolentino v. Villanueva, et al., supra Article 49 1. Bondagjy v. Bondagjy, et al., G.R. No. 140817, December 7, 2001, 159 SCAD 917 2. Chua v. Cabangbang, et al., G.R. No. L-23253, March 28, 1969 3. Espiritu and Layug, et al. v. Court of Appeals and Masauding, G.R. No. 115640, March 15, 1995, 59 SCAD 631 4. Medina v. Makabali, 21 SCRA 501
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5. Pelayo v. Aedo, G.R. No. 15953, November 15, 1919 6. Unson III v. Navarro, 101 SCRA 183 Legal Separation / Separation of Property 1. Buccat v. Buccat, supra 2. Domingo v. Court of Appeals, et al., supra 3. Goiti v. Campos y Rueda, supra 4. In the Matter of Voluntary Dissolution of Conjugal Partnership of Jose Bermas, Sr. and Pilar Bermas, 14 SCRA 327 5. Lacson v. Lacson, 24 SCRA 837 Legal Separation/Separation De Facto 1. Panganiban v. Borromeo, supra History of Divorce in the Philippines 1. Baptista v. Castaeda, Adm. Case No. 12, April 6, 1946 2. Biton v. Momongan, supra 3. Lara v. Del Rosario, 94 Phil. 778 4. Sy Joc Lieng v. Encarnacion, supra 5. Valdez v. Tuason, G.R. No. 14957, March 16, 1920 Article 55(5) 1. United States v. McMann, 4 Phil. 565 Article 55(9) 1. Koh-Gabriel v. Gabriel, 4 CA Rep. 168 Article 55(10) 1. De la Cruz v. De la Cruz, G.R. No. L-19565, January 30, 1968 2. Partosa-Jo v. Court of Appeals, et al., G.R. No. 82606, December 18, 1992

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Article 56(1) 1. Almacen v. Baltazar, G.R. No. L-10028, May 23, 1958 2. Bugayong v. Ginez, 100 Phil. 622 3. De Ocampo v. Florenciano, supra 4. People v. Schneckenburger, G.R. No. 48183, November 10, 1941 5. People v. Zapata & Bondoc, G.R. No. 3047, May 16, 1951 Article 56(2) 1. Matubis v. Praxedes, G.R. No. L-11766, October 25, 1960 2. People v. Guinucud, et al., G.R. No. 38672, October 27, 1933, 58 Phil. 624 3. People v. Schneckenburger, et al., supra 4. People v Sensano, et al., G.R. No. 37720, March 7, 1933, 58 Phil. 73 Article 56(5) 1. De Ocampo v. Florenciano, supra 2. Brown v. Yambao, supra Effect of Death on Action for Legal Separation 1. Sy v. Eufemio, G.R. No. L-30977, June 31, 1972 Article 57 1. Contreras v. Macaraig, supra Article 58 1. Araneta v. Concepcion, G.R. No. L-9667, July 31, 1956, en banc 2. Somosa-Ramos v. Vamenta, Jr., et al., G.R. No. L-34132, July 29, 1972 Article 60 1. De Cardenas v. Cardenas, et al., supra 2. De Ocampo v. Florenciano, supra Article 62
xxiii

1. Espiritu, et al. v. Court of Appeals, et al., supra Article 63 1. Espiritu and Layug v. Court of Appeals and Masauding, G.R. No. 115640, March 15, 1995, 59 SCAD 631, supra Article 64 1. Gercio v. Sun Life Assurance Co. of Canada, 48 Phil. 53 2. Maxey v. Court of Appeals, 129 SCRA 187 Article 68 1. Arroyo v. Vazquez de Arroyo, supra 2. Dadivas de Villanueva v. Villanueva, G.R. No. 29959, December 3, 1929 3. De Ocampo v. Florenciano, supra 4. Garcia v. Santiago, 53 Phil. 952 5. Goitia v. Campos Rueda, supra 6. Tenchavez v. Escao, supra Article 73(2) 1. Ayala Investment & Development Corp., et al. v. Court of Appeals, et al., G.R. No. 118305, February 12, 1998, 91 SCAD 663 2. Johnson & Johnson (Phils.), Inc. v. Court of Appeals, et al, G.R. No. 102692, September 23, 1996, 74 SCAD 645 3. Mariano v. Court of Appeals, et al., G.R. No. 51283, June 7, 1989 4. Ventura v. Hon. Militante, et al., G.R. No. 63145, October 5, 1999, 113 SCAD 685

xxiv