The Law On Marriage PDF

1
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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Art. 1
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.
Art. 1
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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Art. 1
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.
Art. 1
MARRIAGE
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.
Art. 1
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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,
12
13
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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:
Art. 1
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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
10
THE LAW ON MARRIAGE
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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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11
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.
12
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Art. 1
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.

22
Sec. 9, The Family Courts Act of 1997.
20
21
Art. 1
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13
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.
23
24
14
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Art. 1
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
28
G.R. No. L-6505, Aug. 23, 1954, en banc.
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15
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.
16
THE LAW ON MARRIAGE
Art. 1
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-
Art. 1
MARRIAGE
17
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
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.
Art. 5 and Art. 35(1) which state the minimum marriageable age, 18 years old for both man and woman;
b.
Art. 13 and Art. 41 which require that the contracting

parties are not married;
c.
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;
d.
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;
e.
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;
f.
Art. 37 which prohibits incestuous marriages as defined

in it;
g.
Art. 38 which prohibits marriages between certain relatives as against public policy; and
h.
Art. 36, where one or both parties are psychologically

incapacitated to marry.
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
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)
the beginning for reasons of public policy:
(1) Between collateral blood relatives, whether
legitimate or illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(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
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.
21
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) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provi-
Art. 3
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
B.P. Blg. 129, otherwise known as The Judiciary Reorganization Act of 1980;
37
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
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.
He is duly authorized by his church or religious sect,
2.
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
the beginning:

x x x
x x x
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;

x x x
x x x
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
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. 3
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.
Courtroom or chambers of the justice or judge concerned;
2.
Church, chapel or temple;
3.
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)

x x x
x x x
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
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
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
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
Sempio-Diy, Alicia V., Handbook on The Family Code of the Philippines, p. 7.
55
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
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
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
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) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the
previous marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
and
(9) 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
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
b.
His parents if known,
c.
Place and date of the applicants birth.
45
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.
The death certificate of his deceased spouse, or
b.
The judicial decree of annulment, or
c.
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
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
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.
62
63
64
60
61
Arts. 20-21
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) The full name, sex and age of each contracting
party;
(2) 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
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
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
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.
70
71
68
69
Art. 26
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
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
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
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
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
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
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
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.
G.R. No. 133778, March 14, 2000, 123 SCAD 58.

Jamias v. Rodriguez, 81 Phil. 303, cited by Aquino, Ramon C. & Grio-Aquino,
6
7
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
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) Incestuous (Art. 37);
(4) Void by reason of public policy (Art. 38);
(5) 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
THE LAW ON MARRIAGE
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

7
G.R. No. 112019, Jan. 4, 1995, 58 SCAD 17, en banc.
5
6
Art. 36
MARRIAGE
73
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,
74
THE LAW ON MARRIAGE
Art. 36
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.
Art. 36
MARRIAGE
75
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
Developments in Civil Law, The Lawyers Review, op. cit., p. 67.

G.R. No. 108763, Feb. 13, 1997, 79 SCAD 462, en banc.
10
76
THE LAW ON MARRIAGE
Art. 36
(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
Art. 36
MARRIAGE
77
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
78
THE LAW ON MARRIAGE
Art. 36
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.
Art. 36
MARRIAGE
79
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).
80
THE LAW ON MARRIAGE
Art. 36
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.
a Ph. D. degree holder 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 holder in clinical/counselling psychology

as major concentration and a practicum in clinical psychology; and
4.
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.
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
Art. 36
MARRIAGE
81
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)
82
THE LAW ON MARRIAGE
Art. 36
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.
Art. 36
MARRIAGE
83
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
84
THE LAW ON MARRIAGE
Art. 37
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) Between ascendants and descendants of any degree;
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) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
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
Art. 38
MARRIAGE
85
(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.
Between step-parents and step-children;
3.
Between parents-in-law and children-in-law;
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; 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-
86
THE LAW ON MARRIAGE
Art. 38
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
22
Sisters
Mother of Joanna (3)
Art. 38
MARRIAGE
Paolo
First Cousins
87
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
(1)
Brothers
Grandfather of Joanna (4)
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) Brother-in-law and sister-in-law;
(2) Stepbrother and stepsister;
(3) Guardian and ward;
(4) Adopted and illegitimate child of the adopter;
(5) Adopted son of the husband and adopted daughter of the
wife;
(6) Parties who have been convicted of adultery or concubinage.
23
Cf. Arts. 149 and 150, Family Code.
88
THE LAW ON MARRIAGE
Art. 38
Relationships impediments to marriage

1. Collateral relatives, legitimate/illegitimate, within the 4th
civil degree;
2.
Parent-child:
a)
b)
c)
d)
e)
3.
Sibling sibling:
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
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:
Art. 38
MARRIAGE
89
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,
90
THE LAW ON MARRIAGE
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
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
THE LAW ON MARRIAGE
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
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
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,
34
Supra.
1993.
Art. 41
MARRIAGE
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
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)
100
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
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
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
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.
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
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;
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.45
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
47
Sec. 23(b), Rule on Declaration of Absolute Nullity of Void Marriages and
Art. 44
MARRIAGE
107
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
48
Sec. 23(c), Rule on Declaration of Absolute Nullity of Void Marriages and
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.
108
THE LAW ON MARRIAGE
Arts. 45-46
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.
Lack of parental or guardians consent;
2.
Unsound mind;
Art. 46
sent;
MARRIAGE
109
3.
Fraud in obtaining consent;
4.
Force, intimidation or undue influence in obtaining con-
5.
Sexual impotency with respect to the spouse; and
6.
disease.
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
110
THE LAW ON MARRIAGE
Arts. 45-46
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
Arts. 45-46
MARRIAGE
111
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
112
THE LAW ON MARRIAGE
Arts. 45-46
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.
Arts. 45-46
MARRIAGE
113
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.
114
THE LAW ON MARRIAGE
Arts. 45-46
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
Arts. 45-46
MARRIAGE
115
(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.
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
116
THE LAW ON MARRIAGE
Arts. 45-46
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:
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.
Arts. 45-46
MARRIAGE
117
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
118
THE LAW ON MARRIAGE
Arts. 45-46
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.
Arts. 45-46
MARRIAGE
119
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) He was not a party to the pre-marital immorality of his
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
77
Menciano, et al. v. San Jose, et al., supra.
72
73
120
THE LAW ON MARRIAGE
Arts. 45-46
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
Arts. 45-46
MARRIAGE
121
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
122
THE LAW ON MARRIAGE
Arts. 45-46
(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.
Arts. 45-46
MARRIAGE
123
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
124
THE LAW ON MARRIAGE
Arts. 45-46
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) Either party was afflicted with a sexually transmissible
disease;
(b) The STD is found to be serious;
(c)
It appears to be incurable; and
(d) The other party did not know of it at the time of the marriage.88
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.
Arts. 45-46
MARRIAGE
125
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
126
THE LAW ON MARRIAGE
Arts. 45-46
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
Arts. 45-46
MARRIAGE
127
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
128
THE LAW ON MARRIAGE
Art. 47
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;
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;
the injured party, within five years after the discovery of the
fraud;
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.
Art. 47
MARRIAGE
129
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
130
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Art. 48
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.
To take steps to prevent collusion between the parties,
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
Art. 48
MARRIAGE
131
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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Art. 48
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
103
Sec. 2, Rule on Provisional Orders (Resolution No. A.M. No. 02-11-12-SC)
97
98
Art. 48
MARRIAGE
133
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.
134
THE LAW ON MARRIAGE
Art. 48
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
Art. 49
MARRIAGE
135
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.
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 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.
136
THE LAW ON MARRIAGE
Art. 49
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.
Art. 49
3.
MARRIAGE
137
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.
The nature and frequency of contact with both parents;
6.
Habitual use of alcohol or regulated substances;
7.
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).
138
THE LAW ON MARRIAGE
Art. 49
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).
Art. 49
MARRIAGE
139
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.
140
THE LAW ON MARRIAGE
Art. 49
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
Art. 49
MARRIAGE
141
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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Art. 49
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
Art. 49
MARRIAGE
143
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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Art. 49
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
Art. 49
MARRIAGE
145
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.
146
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Art. 49
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. 49
MARRIAGE
147
(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 consid-
118
Vol. XXIII, No. 4, 4th Quarter 1997 and Vol. XXIV, No. 1, 1st Quarter 1998,
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
148
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Art. 49
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
Art. 50
MARRIAGE
149
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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THE LAW ON MARRIAGE
Art. 50
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
Art. 50
MARRIAGE
151
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 LAW ON MARRIAGE
Art. 51
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 . . .
Art. 51
MARRIAGE
153
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.
154
THE LAW ON MARRIAGE
Art. 51
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.
Art. 51
MARRIAGE
155
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
156
THE LAW ON MARRIAGE
Art. 51
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
Art. 51
MARRIAGE
157
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
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

123
158
THE LAW ON MARRIAGE
Art. 51
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
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

124
Sec. 23(b), Rule on Declaration of Absolute Nullity of Void Marriages and

125
Sec. 23(c), Rule on Declaration of Absolute Nullity of Void Marriages and
126
Art. 51
MARRIAGE
159
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
160
THE LAW ON MARRIAGE
Art. 52
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
Arts. 53-54
MARRIAGE
161
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
162
THE LAW ON MARRIAGE
Art. 54
customs or public policy shall compensate the latter for

the damage.
Art. 54
MARRIAGE
163
164
THE LAW ON MARRIAGE
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
1
2
164
LEGAL SEPARATION
165
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
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
166
THE LAW ON MARRIAGE
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.
LEGAL SEPARATION
167
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
168
THE LAW ON MARRIAGE
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
LEGAL SEPARATION
169
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
170
THE LAW ON MARRIAGE
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
20
Under Sec. 2(c) of the Rule on Legal Separation, the petition for legal separation 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
LEGAL SEPARATION
171
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
172
THE LAW ON MARRIAGE
Art. 55
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
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.
Art. 55
LEGAL SEPARATION
173
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.
174
THE LAW ON MARRIAGE
Art. 55
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
Art. 55
LEGAL SEPARATION
175
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
176
THE LAW ON MARRIAGE
Art. 55
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.
Art. 55
LEGAL SEPARATION
177
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
178
THE LAW ON MARRIAGE
Art. 55
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.
Art. 55
LEGAL SEPARATION
179
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.
180
THE LAW ON MARRIAGE
Art. 55
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.
Art. 55
LEGAL SEPARATION
181
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
182
THE LAW ON MARRIAGE
Art. 56
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.
Art. 56
LEGAL SEPARATION
183
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.
184
THE LAW ON MARRIAGE
Art. 56
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
Art. 56
LEGAL SEPARATION
185
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.
186
THE LAW ON MARRIAGE
Art. 56
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.
Art. 57
LEGAL SEPARATION
187
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
188
THE LAW ON MARRIAGE
Art. 57
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.
Art. 57
LEGAL SEPARATION
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.
189
190
THE LAW ON MARRIAGE
Art. 57
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,
Art. 58
LEGAL SEPARATION
191
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.
192
THE LAW ON MARRIAGE
Art. 58
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.
Art. 59
LEGAL SEPARATION
193
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.
194
THE LAW ON MARRIAGE
Art. 60
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
Art. 60
LEGAL SEPARATION
195
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. . . .
196
THE LAW ON MARRIAGE
Art. 60
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
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.
Art. 60
LEGAL SEPARATION
197
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.
198
THE LAW ON MARRIAGE
Art. 61
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

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
Art. 61
LEGAL SEPARATION
199
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
adequate
a Maria,
written
between
when he has the right provisions
of consortium;in
Sta.
Jr., agreement
op. cit., pp. 346-349
where it is
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
84
85
86
Sec. 8, Rule 96, Revised Rules of Court. Cf. Rule 96, Revised Rules of Court;
87
88
Cf. The discussion on Article 49 is void and voidable marriages.
89
Article 68, Family Code.
90
Article 69, Family Code.
200
THE LAW ON MARRIAGE
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
Art. 63
LEGAL SEPARATION
201
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.
202
THE LAW ON MARRIAGE
Art. 63
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:
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.
93
94
Art. 63
LEGAL SEPARATION
203
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
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.

204
THE LAW ON MARRIAGE
Art. 63
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
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
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,
98
Art. 64
LEGAL SEPARATION
205
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.
206
THE LAW ON MARRIAGE
Art. 64
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
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
103
Ibid.
104
105
4 Eccl. 238; Bouviers Law Dictionary, p. 2843; cited by Pineda, loc. cit.
100
Art. 65
LEGAL SEPARATION
207
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

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
208
THE LAW ON MARRIAGE
Art. 66
(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
Art. 66
LEGAL SEPARATION
209
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
210
THE LAW ON MARRIAGE
Art. 66
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
118
Sec. 23(d) correlated to Sec. 24(a), Rule on Legal Separation.
119
120
Supra, pp. 96-97.
121
122
Sec. 23(d) and Sec. 24(a), Rule on Legal Separation.
123
Sec. 24(a) and (b), Rule on Legal Separation.
115
116
Art. 66
LEGAL SEPARATION
211
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
124
125

212
THE LAW ON MARRIAGE
Art. 67
(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.
Art. 67
LEGAL SEPARATION
213
To revive the former property regime, the spouses should put

their agreement in writing and under oath, specifying:
(1) The properties to be contributed anew to the restored
regime;
(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:
214
THE LAW ON MARRIAGE
(i)
lien;
Art. 67
Contractual lienholders retain their lien;
(ii) 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 manifes 126
Art. 67
LEGAL SEPARATION
215
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.
The properties to be contributed to the restored 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 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
127
128
Vd. Sec. 23(e) correlated to Sec. 23(c) and (d), Rule on Legal Separation.
Sec. 24, Rule on Legal Separation.
216
THE LAW ON MARRIAGE
Art. 67
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
218
THE LAW ON MARRIAGE
Art. 68
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
6
Tolentino, 1990 reprint, op. cit., p. 339, citing 2 Planiol & Ripert 271-272.
7
Arroyo v. Vazquez de Arroyo, supra.
8
Ibid.
Art. 68
RIGHTS AND OBLIGATIONS OF SPOUSES
219
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.
220
THE LAW ON MARRIAGE
Art. 68
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
19
2nd par. of Art. 333 of the Revised Penal Code.
14
15
Art. 68
221
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.
222
THE LAW ON MARRIAGE
Art. 68
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. 69
223
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
25
The husband is responsible for the support of the wife and the rest of the
23
24
224
THE LAW ON MARRIAGE
Art. 69
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
Arts. 70-71
225
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.
Ayala Investment & Development Corp., et al. v. Court of Appeals, et al., G.R.
27
28
226
THE LAW ON MARRIAGE
Art. 72
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.
Art. 72
227
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
228
THE LAW ON MARRIAGE
Art. 73
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)
Art. 73
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
230
THE LAW ON MARRIAGE
Art. 73
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.
Art. 73
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.
232
THE LAW ON MARRIAGE
Art. 73
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
234
THE LAW ON MARRIAGE
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
APPENDIX 1
Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages
235
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
236
THE LAW ON MARRIAGE
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
APPENDIX 1
237
(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;
238
THE LAW ON MARRIAGE
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
APPENDIX 1
239
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) The civil status of persons;
(b) The validity of a marriage or of a legal separation;
(c) Any ground for legal separation;
(d) Future support;
(e) The jurisdiction of courts; and
(f)
Future legitime.
Sec. 17. Trial.
240
THE LAW ON MARRIAGE
Secs. 17-19
(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
APPENDIX 1
241
(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
242
THE LAW ON MARRIAGE
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
APPENDIX 1
243
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.
244
THE LAW ON MARRIAGE
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;
244
Sec. 3
APPENDIX 2
Rule on Legal Separation
245
(h) Sexual infidelity or perversion of the respondent;

(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) Allege the complete facts constituting the cause of
action.
(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
246
THE LAW ON MARRIAGE
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
247
(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;
248
THE LAW ON MARRIAGE
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
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) The civil status of persons;
(2) The validity of a marriage or of a legal separation;
(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts; and
(6) Future legitime.
Sec. 14. Trial.
(a) The presiding judge shall personally conduct the trial of
250
THE LAW ON MARRIAGE
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) The action is barred by prescription.
(b) If the court renders a decision granting the petition, it
Sec. 17
APPENDIX 2
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
252
THE LAW ON MARRIAGE
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
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.
254
THE LAW ON MARRIAGE
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
APPENDIX 2
255
256
THE LAW ON MARRIAGE
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;
258
THE LAW ON MARRIAGE
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
259
(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)
the specific nature of the case; and
(d) 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
260
THE LAW ON MARRIAGE
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.
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
No. ____________
Printed by
84 P. Florentino St., Quezon City
ii
Tel. Nos. 712-41-08 712-41-01
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
iii
iv
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
vi
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.
1
2
vii
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
viii
Art. 8, Civil Code of the Philippines.
TABLE OF CONTENTS
Title I. MARRIAGE
Chapter I REQUISITES OF MARRIAGE
Legal concept, Art. 1................................................................. 1
Marriage, a special contract.................................................... 2
Marriage, a permanent union.................................................. 2
Marriage, only between a man and a woman........................ 3
Marriage governed only by law............................................... 3
Marriage for conjugal and family life..................................... 4
Marriage, an inviolable social institution............................... 4
Legal presumption of marriage............................................... 5
Illustrative cases of cogent proof overcoming the

presumption of marriage................................................. 7
Presumption of marriage; proving marriage.......................... 10
Duty of the State to protect marriage..................................... 11
Active participation of the State in cases involving
marriages.......................................................................... 12
Default, judgment on the pleadings, summary

judgment, not allowed..................................................... 14
Legal sanctions on notaries public and lawyers.................... 17
Requisites for a valid marriage............................................... 17
Essential requisites, Art. 2...................................................... 18
Only a man and a woman can enter into a valid
marriage............................................................................ 18
Legal capacity........................................................................... 19
Consent freely given................................................................. 22
Formal requisites, Art. 3.......................................................... 23
Solemnizing officers.................................................................. 23
Solemnizing officers; incumbent members

of the judiciary................................................................. 25
Solemnizing officers; priests, rabbi, imam, minister, etc...... 25
Solemnizing officers; ship captain or airplane chief.............. 25
Solemnizing officers; military commander.............................. 26
ix
Solemnizing officers; consul-general, consul, vice-consul...... 26

Solemnizing officers; mayor of a municipality or city............ 26
Solemnizing officers; without authority.................................. 26
Place of solemnizing marriage................................................. 29
Valid marriage license.............................................................. 30
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............................................. 32
Marriage license; prohibition of issuance of marriage

license to widows.............................................................. 33
Marriage license; exemptions ................................................. 35
Marriage ceremony................................................................... 36
Absence, defect, and irregularity, their effect, Art. 4............ 38
Absence ..................................................................................... 38
Defect......................................................................................... 38
Irregularity................................................................................ 39

Art.
Art.
Art.
Art.
Art.
Art.
5................................................................................. 40
6................................................................................. 40
7................................................................................. 40
8................................................................................. 41
9................................................................................. 42
10............................................................................... 42
Procedure in obtaining a marriage license............................. 43

Art. 11............................................................................... 43

Art. 12............................................................................... 44

Art. 13............................................................................... 46

Art. 14............................................................................... 46

Art. 15............................................................................... 47

Art. 16............................................................................... 48

Art. 17............................................................................... 49

Art. 18............................................................................... 50

Art. 19............................................................................... 50

Art. 20............................................................................... 51
Foreigners and stateless persons wanting to marry in the

Philippines, Art. 21.......................................................... 51
Contents of marriage certificate, Art. 22................................ 52
Duties of the solemnizing officer, Art. 23............................... 52

Art. 29............................................................................... 53

Art. 30............................................................................... 53
Duties of the Local Civil Registrar, Art. 24............................ 54

Art. 25............................................................................... 54
x
Marriages solemnized in foreign countries, Art. 26............... 57

Marriage in foreign countries; lex loci celebrationis ............. 58
Proving the unwritten law of a foreign country..................... 59
Foreign marriages; exempted from the lex loci
celebrationis ..................................................................... 60
The divorce recognized in the Philippines.............................. 61
Chapter II MARRIAGES EXEMPT FROM LICENSE
REQUIREMENT
Marriages in articulo mortis, Art. 27...................................... 62
Marriages in remote places, Art. 28........................................ 63

Art. 29............................................................................... 63

Art. 30............................................................................... 64

Art. 31............................................................................... 64

Art. 32............................................................................... 65
Marriages between members of an ethnic

cultural minority, Art. 33................................................ 65
Couple cohabiting for at least 5 years, Art. 34...................... 66
Chapter III VOID AND VOIDABLE MARRIAGES
Categories of void marriages................................................... 69
Void for lack of some requisites of marriage,

Art. 35............................................................................... 70
Comparison of Art. 35(5), Family Code to Art. 86(1)

in relation to Art. 85(4), of the Civil Code..................... 71
Void marriage due to psychological incapacity,

Art. 36............................................................................... 71
Clinical psychologist as an expert witness;

his qualifications.............................................................. 80
Is there a need for personal psychological examination

of both spouses................................................................. 81
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............................................... 82
Incestuous marriages, Art. 37................................................. 84
Void marriage by reason of public policy, Art. 38.................. 85
Collateral blood relatives within the fourth civil degree....... 86
Determining the civil degree between blood relatives........... 86
Relationships not impediments to marriage.......................... 87
Relationships impediments to marriage................................. 88
Family relations........................................................................ 88
xi
Killing a spouse by one party.................................................. 89

Comparison between Art. 38(9) of the Family Code

and Art. 80(6) of the Civil Code...................................... 89
Imprescriptibility of actions for declaration of nullity,

Art. 39............................................................................... 90
Bigamous/polygamous marriages, Art. 40.............................. 90
Remarrying without complying with Art. 40 is bigamous.... 90
Effect of Art. 40 on void marriages as defense

against bigamy................................................................. 91
Petition for nullity without intent to remarry....................... 92
The need for judicial decree in void marriages...................... 93

Art. 41............................................................................... 95
Not bigamous under Art. 41.................................................... 96
Well-founded belief construed............................................... 97
Effect of reappearance of absent spouse, Art. 42................... 100
Effects of the termination of the second marriage

by reappearance, Art. 43................................................. 100
Effect of bad faith of both spouses, Art. 44............................ 102
Void marriages due to non-compliance with a

mandatory statutory provision........................................ 103
Who can, when to, file petition for nullity

of marriage....................................................................... 105
Modifications introduced by the Rules on Declaration of

Absolute Nullity of Void Marriages and Annulment

of Voidable Marriages...................................................... 106
Grounds for annulment of marriage, Art. 45......................... 108

Art. 46............................................................................... 108
Art. 45 compared to Art. 85 of the Civil Code........................ 109
Lack of parental or guardians consent................................... 110
Ratification of marriage without parental consent................ 110
Unsound mind........................................................................... 113
Fraud......................................................................................... 115
Fraud; non-disclosure of a crime involving

moral turpitude................................................................ 117
Fraud; concealment of pregnancy............................................ 118
Fraud; concealment of sexually transmissible disease.......... 120
Fraud; concealment of drug addiction, habitual

alcoholism, homosexuality or lesbianism....................... 121
Force, intimidation, undue influence...................................... 121
Impotence.................................................................................. 122
Sexually transmissible disease (STD), serious and

seemingly incurable......................................................... 125
Ratification of voidable marriages........................................... 126
xii
Marriages which cannot be ratified........................................ 127

Who can file, and when to file annulment of marriage,

Art. 47............................................................................... 128
Marriage without parental consent......................................... 129
Marriage with an insane person............................................. 129
Consent to marriage with fraud.............................................. 130
Consent through force, intimidation, undue influence.......... 130
Impotence.................................................................................. 130
STD, serious and seemingly incurable.................................... 130
Duties of the court in annulment/declaration of absolute

nullity of marriage, Art. 48............................................. 130
Over the public prosecutor....................................................... 131
On stipulation of facts and confession of judgment............... 134
Providing for the support and custody of minor

children, duty of the court, Art. 49................................. 135
How to determine support for the spouses............................. 136
How to determine child support.............................................. 137
How to determine child custody.............................................. 137
Provisional custody; order of preference................................. 138
Illustrative case; custody of a child to a parent..................... 139
Law applicable when one spouse is Christian and the

other Muslim regarding custody of the

minor children.................................................................. 148
Duties of the courts under Art. 50.......................................... 149
Effects of final judgment of annulment and declaration

of nullity of marriage....................................................... 150
Final judgment; liquidation, partition and distribution........ 151
Presumptive legitime, Art. 51.................................................. 152
The reason for the presumptive legitime................................ 155
An oversight of the Civil Code Revision Committee.............. 158
Compulsory compliance with Articles 50 and 51................... 158
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............................ 159
Registration of the decree, a duty........................................... 160
When the decree has to be published; registered decree,

best evidence.................................................................... 160
Effect of death of a party on the petition for
annulment......................................................................... 160
Duties of the former spouses, Art. 52..................................... 160

Art. 53............................................................................... 161
xiii
Effects of the recording............................................................ 161

Status of children conceived or born before final

judgment of annulment or declaration

of nullity, Art. 54.............................................................. 161
Damages in marriages annulled or declared

null and void..................................................................... 162
Title II. LEGAL SEPARATION

Concept of legal separation...................................................... 164
Legal separation and separation of property......................... 165
Legal separation and separation de facto............................... 165
History of divorce in the Philippines...................................... 168
Changes introduced by the Family Code................................ 170
Grounds for legal separation, Art. 55..................................... 171
Repeated physical violence and grossly abusive conduct...... 171
Physical violence or moral pressure to compel the

petitioner to change religious or political affiliation..... 173
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................................................ 173
Final judgment sentencing respondent to imprisonment

of more than six years, even if pardoned....................... 174
Drug addiction or habitual alcoholism of the respondent..... 175
Lesbianism and homosexuality............................................... 176
Contracting a subsequent bigamous marriage....................... 177
Sexual infidelity or perversion ............................................... 177
Attempt by the respondent against life of the
petitioner........................................................................... 179
Abandonment of petitioner by respondent without

justifiable cause................................................................ 181
Grounds for denying petition for legal separation,

Art. 56............................................................................... 182
Condonation.............................................................................. 183
Consent...................................................................................... 184
Connivance................................................................................ 185
Mutual guilt.............................................................................. 187
Collusion .................................................................................. 187
Prescription, Art. 57................................................................. 187
Effect of death of a spouse during the pendency of an

action for legal separation............................................... 189
Effects of the filing of an action for legal separation............. 190
Cooling-off period, Art. 58........................................................ 191
xiv
Cooling-off period; not a ban to hear administration,

support, custody matters................................................. 192
Duty of the court, Art. 59......................................................... 193
Stipulation of facts/confession of judgment; Art. 60

compared to Art. 101 of the Civil Code.......................... 194
Cessation of personal rights, Art. 61...................................... 198
Support and custody, Art. 62................................................... 200
Effects of the decree of legal separation, Art. 63................... 201
The right of consortium............................................................ 202
The property relations.............................................................. 202
The custody of the minor child or children............................ 203
The right to inherit from the other spouse............................. 204
The procedure under the Rule on Legal Separation.............. 204
Distinction between decision and decree

of legal separation............................................................ 204
Registration of the decree, a duty........................................... 205
When the decree has to be published;

registered decree, best evidence...................................... 205
Donations and insurance beneficiary, Art. 64........................ 205
Reconciliation............................................................................ 207
Duty of the reconciling spouses to the court, Art. 65............ 207
Effect of reconciliation, Art. 66................................................ 208
During the pendency of action................................................. 209
After final judgment of legal separation................................. 209
Before issuance of decree of legal separation......................... 209
After issuance of decree of legal separation........................... 210
Art. 66 compared to provisions of similar import

in the Civil Code.............................................................. 211
Effect of failure to file the sworn joint manifestation

of reconciliation................................................................ 211
Duty of the court....................................................................... 212
Agreement to revive former property regime, Art. 67........... 212
Procedure .................................................................................. 213
Procedure under the Rule on Legal Separation..................... 215
Reviving the former property regime...................................... 215
Adopting a new property regime............................................. 216
Title III. RIGHTS AND OBLIGATIONS

OF SPOUSES

Art. 68............................................................................... 217
To live together......................................................................... 218
To observe mutual love, respect, and fidelity......................... 220
xv
To render mutual help and support........................................ 222

Art. 69............................................................................... 223

Art. 70............................................................................... 225

Art. 71............................................................................... 225

Art. 72............................................................................... 226

Art. 73............................................................................... 228
Compared to Civil Code........................................................... 229
APPENDICES
Rule on Declaration of Absolute Nullity of Void Marriages

and Annulment of Voidable Marriages.......................... 233
Rule on Legal Separation......................................................... 244
Rule on Provisional Orders...................................................... 256
xvi
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. People v. Opea, G.R. No. L-34954, February 20, 1981
11. People v. Samson, 7 SCRA 478
12. Perido v. Perido, 63 SCRA 97
13. Pugeda v. Trias, et al., G.R. No. L-16925, March 31, 1962
14. Republic of the Philippines v. Court of Appeals and Castro,
G.R. No. 103047, September 2, 1994, 55 SCAD 157
15. Roque v. Hon. Encarnacion, et al., G.R. No. L-6505, August 23,
1954
16. Sarmiento, et al. v. Court of Appeals, et al., G.R. No. 96740,
March 25, 1999, 104 SCAD 875
17. Sison, et al. v. Ambalada, G.R. No. 9943, March 18, 1915
18. Tolentino v. Paras, et al., G.R. No. L-43905, May 30, 1983
xvii
19. Tolentino v. Villanueva, et al., G.R. No. L 23264, March 15,

1974
20. U.S. v. Memoracion, et al., G.R. No. 11371, August 1, 1916
21. 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
xviii
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
xix
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
xx
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
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
xxi
5. Pelayo v. Aedo, G.R. No. 15953, November 15, 1919

6. Unson III v. Navarro, 101 SCRA 183
Legal Separation / Separation of Property
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
xxii
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)
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
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
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

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1

THE LAW ON MARRIAGE

Marriage, a special contract

Marriages can be entered only between a man and a woman.

THE LAW ON MARRIAGE

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

ments in said actions, and the prohibition on lawyers and notaries

THE LAW ON MARRIAGE

on marriage. This is because the said article is not only consistent

tion, an institution in the maintenance of which the public is deeply

The petitioners testimony cannot be believed because

THE LAW ON MARRIAGE

faith and credence, bearing out said testimony, and

In the light of these facts, and of the circumstances

THE LAW ON MARRIAGE

they had entered into a lawful marriage even though no marriage

Court of Appeals, rebuking the trial court in the process:

THE LAW ON MARRIAGE

Art. 60, Family Code.

the Office of the Court Administrator.

Sec. 10, The Family Courts Act of 1997.

THE LAW ON MARRIAGE

G.R. No. L-6505, Aug. 23, 1954, en banc.

nullity or annulment of marriage or for legal separation,

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

THE LAW ON MARRIAGE

tion cannot be made to depend upon the parties

conduct as a notary public, and ratifying a contract the covenants

En banc, September 9, 1933, 58 Phil. 367.

THE LAW ON MARRIAGE

Article 2 gives the essential requisites for a valid marriage,

marriage. What thing or things should each contracting party have

Art. 13 and Art. 41 which require that the contracting

Art. 40 where a party has to have a final judicial decree

Art. 41 where a party, whose spouse has been absent for

Art. 37 which prohibits incestuous marriages as defined

Art. 36, where one or both parties are psychologically

The articles on legal capacity to marry are:

THE LAW ON MARRIAGE

Art. 13. In case either of the contracting parties has

nullity of the marriage, the partition and distribution

THE LAW ON MARRIAGE

his or her own spouse. (82a)

ded for in Chapter 2 of this Title; and

THE LAW ON MARRIAGE

Solemnizing officers; priests, rabbi, imam, minister, etc.

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

THE LAW ON MARRIAGE

(2) Those solemnized by any person not legally

Class LLB 1-3, 1st Semester, SY 2002-2003, College of Law, PUP.

THE LAW ON MARRIAGE

friends because he was a lawyer. Yet nobody would ask a priest, a

may be solemnized at a house or place designated by them

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

Marriages contracted in articulo mortis (Art. 27);

2. Marriages contracted between parties, either one or both

THE LAW ON MARRIAGE

Article 7, marriage may be solemnized by, among others,