Sunday, November 26, 2006
(Note: Click the picture to download a free PDF newsletter on this topic.)
Starting this week, I will be posting primers on the various provisions of the Family Code of the Philippines . For this week, the primer is on the basic provisions on marriage, specifically Articles 1 to 34. Please surf over to Title I, Articles 1 to 54 which comprise the complete provisions of the Family Code on marriage.
You may also want to review my previous articles on “covenant marriage” and “divorce and remarriage” from the Philippine legal standpoint. I discussed these articles with pastors and workers who attended the Baptist Mission Partners symposium last week.
How does the Family Code define “marriage”?
Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Article 1)
What are the essential requisites that make a marriage valid?
Article 2 provides that a marriage is valid if these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
What are the formal requisites of marriage?
The formal requisites of marriage according to Article 3 are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided 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.
What is the effect if an essential or formal requisite is absent?
The absence of any of the essential or formal requisites renders the marriage void ab initio, except as stated in Article 35 (2).
What is the effect if any of the essential requisites is defective?
A defect in any of the essential requisites does not affect the validity of the marriage but the party or parties responsible for the irregularity will be civilly, criminally and administratively liable.
What is the age at which a man or woman can get married?
Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38, may contract marriage.
(Note: Before the Family Code became effective in August 3, 1988, the minimum age for marriage under the New Civil Code of the Philippines was 16 for men and 14 for women.)
Is there any prescribed form for the marriage ceremony?
No prescribed form or religious rite for the solemnization of the marriage is required. It is 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 must be contained in the marriage certificate which must be signed by the contracting parties and their witnesses and attested by the solemnizing officer.
If a party cannot sign the marriage certificate, what can be done?
In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it is sufficient for one of the witnesses to the marriage to write the name of said party, which fact must be attested by the solemnizing officer.
Who are authorized to solemnize marriages?
Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
(2) Any priest, rabbi, imam, or minister of any church or religious sect duly authorized by his church or religious sect and registered with the civil registrar general, acting within the limits of the written authority granted by his church or religious sect and provided that at least one of the contracting parties belongs to the solemnizing officer's church or religious sect;
(3) Any ship captain or airplane chief only in the case mentioned in Article 31;
(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;
(5) Any consul-general, consul or vice-consul in the case provided in Article 10.
Note: The Local Government Code of 1991 restored to the mayors their authority to solemnize marriages
For Filipinos residing or traveling abroad and who want to get married, who can solemnize the marriage?
The consul-general, the consul, or vice-consul of the Republic of the Philippines can solemnize the marriage.
What can be done if upon applying for a marriage license, the parties cannot produce their birth certificates?
The presentation of birth or baptismal certificate is not 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 the parties, as stated in the application, or when the local civil registrar is, by merely looking at the applicants upon their personally appearing before him, convinced that either or both of them have the required age. (Last paragraph, Article 12)
What are the requirements of the Local Civil Registrar if either of the contracting parties was previously married?
The previously married applicant must furnish, instead of the birth or baptismal certificate, 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 the previous marriage.
In case the death certificate cannot be secured, the party must make an affidavit stating this circumstance, actual civil status, and the name and date of death of the deceased spouse. (Article 13)
What is the effectivity of the marriage license once issued?
The license is valid in any part of the Philippines for a period of one hundred twenty days from the date of issue, and it is automatically canceled at the expiration of the period if the contracting parties have not used it. The expiry date must be stamped in bold characters on the face of every license issued. (Article 20)
What are the requirements if a foreigner wants to get married here in the Philippines?
When either or both of the contracting parties are citizens of a foreign country, they must submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials, before a marriage license can be obtained.
Stateless persons or refugees from other countries must, instead of the certificate of legal capacity, submit an affidavit stating the circumstances showing their capacity to contract marriage. (Article 21)
What are the rules for marriages entered into by Filipinos in foreign countries?
All marriages solemnized outside the Philippines under the laws in force in the country where they were solemnized, and valid there as such, are also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is afterwards validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse has the capacity to remarry under Philippine law. (Article 26, as amended by Executive Order 227)
Under what circumstances will a marriage license no longer be required?
In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and will remain valid even if the ailing party subsequently survives. (Article 27)
If the residence of either party is so located that there is no means of transportation to enable the party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. (Article 28)
Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices. (Article 33)
No license is 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 must state these facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer must also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage. (Article 34; please read “Quickie marriages under Article 34 of the Family Code: Is the marriage void if the affidavit of marital cohabitation is false?”)
What are the rules for marriages performed by a ship captain or a pilot?
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. (Article 31)
What are the rules for marriages performed by a military commander?
A military commander of a unit, who is a commissioned officer, has the authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians. (Article 32)
Can I get married to my first cousin?
No, you cannot. You are related to your cousin by four civil degrees. Because of public policy, the Family Code prohibits marriage between persons related within the 4th degree of consanguinity (Article 38 of the Family Code).
Here’s how to count the number of degrees: From you to your father or mother, that is one degree. From your father or mother, to your grandparents, that is another civil degree. From your grandparents to your uncle or aunt, that is another degree. And from your uncle or aunt to your first cousin, is another degree, making a total of four degrees.
Posted by Atty. Gerry T. Galacio at Sunday, November 26, 2006