Professional Documents
Culture Documents
Legal Capacity
Age must be 18 and above
a. For 18-21, parental consent is need absence of
which will render the marriage voidable.
Where the person is biologically or b. For 21-25, parental advise is needed absence of
naturally intersex, the determining factor in his gender classification will delay the issuance of the marriage license by
would be what the individual, at the time he reached the age of the Local Civil Registrar for 3 months.
majority, with good reason thinks of his/her sex. In this case, the
gender classification at his/her birth is deemed inconclusive since it Sex must be male and female
is only at maturity is the gender of such person is fixed. Legal Impediments (Absence of legal impediments)
a. Previous marriage and the manner it got dissolved.
b. Relationship of both parties must be not less than
4th degree from ascendant or 1st degree of
consanguinity.
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marriage for 3 months following complete thereof, but should not turn down the issuance of the
publication of the application. marriage license.
Even if the LCR is made aware of the impediments of
the marriage, h is still duty bound to issue the license
except if he is restrained by the court at his own
This is in keeping of family tradition instance or of any interested party.
e. Certificate of marriage counseling in cases where Only the court can intervene in issuing the marriage
parental consent or parental advice is required. license through a court order directing the LCR from
non-issuance.
If there is really a legal impediment in the marriage, the
LCR issuing officer can petition the court to restraint him
Failure to attach the counseling certificate from the issuing the marriage license or have the other
will cause the suspension of the issuance of party petition for it.
marriage license for 3 months. This is only an d. The LCR will collect payment of fees for the issuance
irregularity to the formal requisite. of the marriage license in the amount of ₱300.
However, it is free of charged for indigent people.
e. It shall be the duty to prepare the documents such as
the marriage certificate and affidavit for the
If one or both of the parties are below 25 solemnization of marriage in another place without
years old, both of them must attend. charge to all interested parties.
f. If a party to the marriage is a foreigner, he must present f. The LCR is the also the one to administer oaths to all
a certificate of legal capacity to marry issued by his parties interested and to prepare the documents
diplomatic or consular representative in the required.
Philippines. g. The LCR concerned, shall be the one to enter to all
g. Place of issue for the Marriage License, the parties should applications for marriage licenses filed with him in a
get a marriage license form the LCR in the municipality or registry book strictly in order which shall be recorded
city where either of the party resides. in the name of the applicants, the date of the marriage
Information needed to be specified to the LCR:
license was issued and such other data as may be
a. Full name of the contracting parties necessary.
b. Place of birth
c. Age and date of birth Article 20: Life of the Marriage License
d. Civil status
e. If previously married, how, when and where the
previous marriage was dissolved or annulled.
f. Present citizenship and citizenship
g. Degree of relationship of the contracting parties. The marriage license once issued is
h. Full name, residence and citizenship of the father. valid anywhere in the Philippine for a period of 120 days, if it
i. Full name, residence and citizenship of the is not used within that period is it automatically expired.
mother. Marriages solemnized using an expired marriage licensed is
j. Full name, residence and citizenship of the guardian considered null & void.
or person having charge, in case one of the
Article 21: Certificate of Legal Capacity to Marry
parties has neither father nor mother, and is under
21 years old.
Article 17-19:
DUTIES OF THE LOCAL CIVIL REGISTRAR If both party are foreigners:
It is not necessary for them to present a birth
a. Upon receipt of the application for a marriage license, certificate instead they need to present certificate
the LCR must immediately post a notice to inform the of legal capacity to contract a marriage duly issued
public of the impending marriage. by their respective diplomatic or consular official.
b. The notice shall be posted in the bulletin board outside The reason for this is that a person’s capacity to
of the LCR for 10 consecutive days showing the name marry is determined by his national law.
and residence of the couple.
If the foreigner desires to have their marriage
This will request any person having knowledge of
solemnized by their country’s consul general
any impediment to the marriage to inform the local
assigned in the Philippines, the marriage can be
civil registrar about it.
solemnized w/out a marriage license if their
c. If the LCR will be informed of any impediment of a
country allows the same.
party applying, he shall note down the particulars
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parties believing in good faith that the solemnizing No clear definition of the psychological incapacity was given since the
officer had the legal authority to do intention of the legislation was to leave the determination of it to the
- One of the situations where good faith is taken into courts on a case-to-case basis, as to whether a particular situation falls
considerations. under the psychological incapacity.
The Reason:
3. Those solemnized without a license, except those The presence of psychological incapacity depends upon the facts
covered by the preceding Chapter of the case and it can be clearly deduced that the absence of
4. Those bigamous or polygamous marriages not definition was deliberately done because the situations
contemplated by the law vary from one case to another.
falling under article 41 which states presumptive
death
- Another instance where good faith is recognized
5. Those contracted through mistake of one
contracting party as to the identity of the other
6. Those subsequent marriages that void under
Article 53
Psychological Incapacity
The basic determination of the existence of
psychological incapacity is the failure to comply
with the marital obligation.
This is not insanity or mental illness
It refers to the inability of a party to the marriage to
Collateral Attack of a Void comply with the essential marital obligations
Marriage because of psychological reason. It is not a
The nullity of the marriage is not the principal or physical defect because a person who is
main issue of the case but is necessary to the psychological incapacitated is one who cannot
resolution of the main case. perform the essential marital obligations as he/she
refuses to do even if physically capacitated to do
so.
It can also refer to “lack of appreciation” of one’s
marital obligation and has nothing to do with
consent.
Good faith of the parties in entering
the marriage is immaterial and it does not validate an
otherwise void marriage.
Divorce
- There is a valid marriage but the ground
occurred subsequent to the celebration of the
Quarrels and financial difficulties not
marriage. constitute psychological incapacity. Sexual infidelity on the other
hand, is not considered a psychological incapacity if it is not proven
that it already existed before the marriage
Void in Ab Initio
- From the very beginning there was no
marriage.
- The ground for declaration of its nullity already
existing at the time the marriage was
celebrated but only manifested after its Duty of the Solicitor General
solemnization. - To uphold the sanctity of marriage if the marriage is
truly valid and also to expose a void marriage if the
Article 36: Void because of Psychological Incapacity ground of nullity also exists.
This was introduced by E.O. No. 227 on July 17, 1987 as an amendment - Its duty is to ensure that there is no collusion or
to the Family Code. connivance as between the contracting parties.
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complaint by an expert; however this is not anymore Community of life and love
required but regarded as an option which may be Rendering of mutual help
helpful in deciding the case. The procreation and education of offspring
c. The incapacity must be proven to exist at the time of (c) The inability must be tantamount to a psychological
the celebration of the marriage, although it only abnormality.
becomes apparent after the celebration of the
marriage.
d. The incapacity must be shown to be medically or
clinically permanent or incurable, however this is not
regarded as an absolute fact against everyone in the
same gender. It is not enough to prove that the spouse
e. The illness must also be grave enough to prevent the failed to meet his responsibility and duty as a married person; it is
party from assuming the essential marital obligations. essential that he must be shown to be incapable of doing so due to
some psychological illness.
f. The essential marital obligations must be those
mentioned in article 68-71 of the Family Code, as well
as Article 220, 221 and 225.
g. The interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be
given great respect by our courts.
(b) This inability to commit oneself must refer to the Respondent’s sexual infidelity or perversion and abandonment do not by
essential obligations of marriage: themselves constitute psychological incapacity within the contemplation of the
Family Code. Neither could her emotional immaturity and irresponsibility be equated
Conjugal act with psychological incapacity. It must be shown that these acts are manifestations of
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a disordered personality which make respondent completely unable to discharge the (d) Between the adopting parent & the adopted child
essential obligations of the marital state, not merely due to her youth, immaturity16
or sexual promiscuity. (e) Between the surviving spouse of the adopted child and
the adopter
(f) Between the adopted children of the same adopter
(g) Between parties where on, with the intention to marry
the other, killed the other person’s spouse or his or her
own spouse.
No prior criminal conviction by the court is required
by the law. Mere preponderance of evidence is
Republic vs. Quintero- required to prove the killing.
Hamano G.R. No. 149498
In proving psychological incapacity, we find no distinction between an alien spouse
and a Filipino spouse. We cannot be lenient in the application of the rules merely
because the spouse alleged to be psychologically incapacitated happens to be a
foreign national. The medical and clinical rules to determine psychological
incapacity were formulated on the basis of studies of human behavior in general.
Hence, the norms used for determining psychological incapacity should apply to any
person regardless of nationality.
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If the
The extraordinary absence is only for the absent spouse turns out to be alive, then the
purpose of remarriage of the remaining spouse however, for the
division and liquidation of the estate and money of the previous
subsequent marriage contracted by the present
marriage, this will only happen after 4 years of consecutive absence spouse will be automatically terminated but only upon
of the absentee spouse. the execution of the affidavit of reappearance by the
reappearing spouse or any of the interested party.
General Rule: Judicial declaration of presumptive death is
required as such is a presumption that arises from law. Affidavit of Reappearance:
Exception: No judicial declaration of presumption of death is - This shall be recorded in the office of the Local Civil
needed in cases of Article 390 and 391 of the Civil Code before Registrar of the place where the present and the
the effectivity of the Family Code, since these are presumption
subsequent spouse resides.
that arises from law
- The recording of this document is the operative act
Article 390:
that terminates the subsequent marriage without
- The person has been absent for 7 years, it being
unknown whether or not the absentee still lives. prejudice to the outcome of any judicial proceeding
- The absentee shall be presumed dead for all purposes questioning the reappearance.
except for succession, in which cases, the absentee
shall be presumed dead after the lapse of 10 years. Who can execute the Affidavit?
Article 391: (a) Reappearing spouse
- An absentee who is 75 years old and above is (b) Or any interested party such as the parents of
presumed dead if he has been absent for 5 years, still spouses, their children, the remarried spouse or
unknown whether or not the absentee is still alive. even the subsequent spouse of the remarried
spouse.
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The State shall be represented by the OSG or by the parent designated by the court. The court shall take into
Fiscal in all cases of nullity and annulment of marriage: account all relevant considerations, especially the choice
of the child over 7 years old, unless the parent chosen is
Although Article 48 does not specifically state the unfit.
OSG, such office is nevertheless can intervene in the No child under 7 years old shall be separated from the
proceeding considering that issue of validity of the mother unless the court finds compelling reasons to order
marriage is vested with public interest. otherwise. ”
Republic vs. Joy, G.R. No. 152577, September 21, 2005: - Should the court award the custody of the child to one
It is their duty not only to defend the validity of the marriage and parent during the pendency of the case, the other
prevent collusion between the parties but also to expose an invalid spouse should have visitorial rights unless the court, for
one. The prosecuting attorney is required to actively participate in some compelling reason, deprives him or her of such
the proceedings and submit a memorandum. rights. However, visitorial can be reinstated if it showed
General Rule: The Fiscal must actively intervene in the that the deprivation is too harsh or is no longer present.
case and submit a report to the court that there was no STEP 3:
collusion between the parties. Upon receipt of verified petition for declaration of absolute
nullity of Marriage or Annulment of Marriage or Legal
Exception: If the annulment or declaration of nullity of Separation
marriage was strongly opposed & heatedly contested by The Court may issue Provisional Orders:
the defendant by hiring a lawyer who filed several This upon application under oath of any parties may issue
pleadings and actively participated in the trial of the case. provisional orders and protection orders with or w/out a
The non-intervention of the fiscal to assure lack of collusion bond, for such period and under such terms and conditions
between the parties is not fatal to the validity of the as the court may deem necessary.
proceedings in court especially when it was not shown that Includes:
evidence was suppressed or fabricated by any of the parties. 1) Spousal support
2) Child support
In this case, the strict application of Article 48 and 60 of the
3) Child custody
Family Code is unwarranted. 4) Visitation rights
Compromise Agreement of Property Separation: 5) Hold departure order
The partial voluntary separation of property agreed 6) Order of protection
Article 50-54: Decree of Annulment and Nullity of Marriage
upon by the parties through a compromise agreement
approved by the court prior to the declaration of nullity
of marriage is valid. Effects of Annulment and Nullity of Marriage
Manquilan vs. Manquilan, G.R. No. 155409, June 8, 2007:
The non-participation of the prosecuting attorney or the Solicitor
General in the nullity of marriage case does not invalidate the
compromise agreement previously entered into the by the parties.
An agreement to separate property is not itself an indicator of
collusion. In fact, there is no need for the Fiscal to participate in the
negotiation leading to the agreement.
STEP 2: Shall be according to Article 43 of
During the Pendency of the Action of Annulment or the Family Code
Declaration of Nullity of Marriage 1. Children under voidable marriage will still be
considered legitimate however for children born
under a void marriage, they will become
illegitimate children
Except:
Children conceived and born before the nullity
of marriage on the ground of psychological
The support of the spouses and the incapacity under 36 became final are
custody & support of the common children: considered legitimate
Children conceived and born of subsequent
General Rule: The support of the spouses and the void marriage under Article 53 are also
custody and support of the common children will be considered legitimate.
primarily governed by whatever agreement the parties 2. Properties may be separated to whatever
have made. agreement they may have agreed to.
3. Donations to one another will remain valid but if
In the absence of such agreement: the done is the guilty spouse, then the donation
The support of the spouse and common children will be revoked by operation of law.
- Shall be taken from the conjugal or absolute community 4. Insurance beneficiaries designated to the guilt
until the marriage is dissolved.
spouse may be revoked even if it is irrevocable.
The custody of the common children
- This shall be resolved in accordance with Article 213 of
5. The guilty spouse is barred from inheritance to the
the Family Code which states that “in case of separation innocent spouse either by testate or intestate
of the parents, parental authority shall be exercised by the succession.
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Recrimination
Lesbianism, homosexuality, drug This means that both parties are at fault or have
addiction and habitual alcoholism given ground for legal separation.
- Can only be a ground for legal separation if they occur
during the marriage.
- If said defects already existed before the marriage and
they were concealed from the other spouse, they could
be grounds for annulment of marriage.
STEP 2:
Before the court will commence to the hearing of the case, Support
it should allow a “Six Months Cooling-off Period” to lapse of the parties and their common children and
from the filing of the complaint custody
This is intended to give the parties enough time to - The support for the parties and their common
further contemplate their positions and allow the children will be taken from the absolute community
healing balm of time to aid them in the process. or conjugal partnership.
This is a mandatory requirement and its non- - If the court awards the custody of their minor
compliance renders the decision infirm. However, what children to one spouse, the other spouse should
is only prevented is the hearing of the case on its be given visitorial rights.
merits. It does not involve the hearing of other
Article 63-64: Effects of Legal Separation
incidents such as custody of minor children, support
EFFECTS OF LEGAL SEPARATION
“pendete lite” and alimony.
1) The spouses shall be entitled to live separately from
The court may also entertain prayers of injunctions
each other, but the marriage bond shall not be
within the period or even motion to dismiss.
Ocampo vs. Florencio 107 Phil. 35
severed.
No decree of legal separation may be issued unless the court has taken 2) The absolute community or conjugal partnership shall
steps towards the reconciliation of the spouses and is fully satisfied, be dissolved and liquidated but the offending spouse
despite such efforts, that reconciliation is highly improbable. Likewise,
the court cannot render judgment on the basis of stipulation of facts or shall have no right to any share of the net profits,
confession of judgment. which shall be forfeited in accordance with article
43(2).
3) The custody of the minor children shall be awarded to
STEP 3: the innocent spouse, subject to the provisions of 213
Spouses are entitled to live separately from each other of this code.
After the filing of the petition for legal separation the 4) The offending spouse shall be disqualified form
parties are already entitled to live separately from each inheriting from the innocent spouse by intestate
other. succession. Moreover, provisions in favor of the
offending spouse in the will of the innocent spouse
shall be revoked by operation of law.
6. A donation by reason of marriage made by the innocent
spouse in favor of the guilty spouse is revoked by
operation of law.
- The action to revoke the donation under Legal
Separation must be brought within five years from
the time the decree of legal separation has
become final.
Administ
ration of Conjugal Properties 7. The designation of the guilty spouse as the beneficiary
- In the absence of written agreement of both of the insurance policy of the innocent spouse may be
parties as to the administration of the absolute revoked by the latter even if there is a designation that it
community or conjugal partnership property shall is irrevocable.
be decided by the court.
Article 65-66: Effects of Reconciliation
- If neither of the parties is fit to administer it, the
court may appoint a third person to manage the
community properties.
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A corresponding joint
manifestation under oath signed by them shall be filed
with the court in the same proceeding for legal Joint Manifestation of
separation Reconciliation specifications:
Effects: 1. The properties to be contributed anew to the
restored regime
2. Those to be retained as separate properties of
each spouse
3. The names of all their known creditors, their
addresses and the amounts owing to them
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