b. Essential and Formal Requisites of Marriage; Effects of Absence, Defect, or Irregularity

F. Marriage; General Principles (Family Code, art. 1)

Exclude: Muslim Code (P.D. No. 1083)

• Essential and Formal Requisites – Family Code, arts. 1-3, 5-11, 20-21, 26 and 31-35 Exclude: Duties of a Civil Registrar – Family Code, arts. 12-19 and 23-25
• Effects of Absence, Defect or Irregularity – Family Code, art. 4

> Art. 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)

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)

Art. 3. The formal requisites of marriage 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. (53a, 55a)

> 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. 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)

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. (56a)

City and municipal mayors may also solemnize marriages under the Local Government Code. (Republic Act No. 7160, secs. 444(b)(1)(xviii) and 455(b)(1)(xviii))

Article. 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 on 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)

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 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)

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 shall 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;

(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.

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. 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 the 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)

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, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a)

> 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. (17a)

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 have capacity to remarry under Philippine law. (As amended by Executive Order 227)

Under Republic v. Manalo, Article 26(2) also applies when the Filipino spouse initiated the valid foreign divorce, provided it capacitated the foreign spouse to remarry. (G.R. No. 221029, April 24, 2018)

> 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)

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)

Art. 33. 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. (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)

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 marriage 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 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.

> 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.

MARRIAGE UNDER THE FAMILY CODE

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 the Family Code. (Family Code, Art. 1)

NATURE OF MARRIAGE

Under the Constitution, “marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.” (1987 Constitution, Art. XV, Sec. 2)

Marriage is an institution in which the community is deeply interested. The State has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the State are largely dependent on it. It is in the interest and duty of each member of the community to prevent the bringing about of a condition that would shake its foundation and lead to its destruction. The incidents of the status are governed by law, not by will of the parties. (Beso v. Daguman, A.M. No. MTJ-99-1211, January 28, 2000)

ABSENCE OF ANY ESSENTIAL OR FORMAL REQUISITES OF MARRIAGE

Marriage between Filipinos who are of the same sex is VOID

For a marriage to be valid, it must be between persons of opposite sexes.

Although gay marriages are definitely not covered within the purview of Article 2 of the Family Code, the emerging issue of transsexuals and intersexual gender identities have called the attention of the Supreme Court in the cases of Silverio v. Republic (G.R. No. 174689, October 19, 2007) and Republic v. Cagandahan (G.R. No. 166676, September 12, 2008), respectively. (Sta. Maria, 2010)

Q: Sidley and Sol were married with one (1) daughter, Solenn. Sedfrey and Sonia were another couple with one son, Sonny. Sol and Sedfrey both perished in the same plane accident. Sidley and Sonia met when the families of those who died sued the airlines and went through grief-counseling sessions. Years later, Sidney and Sonia got married. At that time, Solenn was four (4) years old and Sonny was five (5) years old. These two (2) were then brought up in the same household. Fifteen (15) years later, Solenn and Sonny developed romantic feelings towards each other, and eventually eloped. On their own and against their parents’ wishes, they procured a marriage license and got married in church.

• Is the marriage of Solenn and Sonny valid, voidable or void?
• If the marriage is defective, can the marriage be ratified by the free cohabitation of the spouses?

A.

• The marriage is voidable. Under Article 14 of the Family Code, if a party to the marriage is between the ages of eighteen and twenty- one; the consent of their father, mother, surviving parent or guardian, or persons having legal charge of them, in the order mentioned, is an additional requirement. In the absence of such parental consent, the consent given by the party between the ages of eighteen and twenty-one is considered defective. Also, under Article 4 of the Family Code, a defect in the essential requisites of marriage renders the marriage voidable. In this case, Solenn and Sonny are nineteen and twenty years old respectively during the time of the celebration of their marriage. Thus, the absence of parental consent renders the marriage of Solenn and Sonny voidable.
• YES. Although voidable marriage, their marriage could be ratified by free cohabitation. Under Article 45(1) of the Family Code, such marriage may be ratified by the cohabitation of the contracting parties (after attaining the age of twenty- one) as husband and wife.

Q: In case of a change in sex, can the person who has undergone said change be allowed to marry another of the same sex as he/she originally had?

A: It depends upon the cause for the change in sex.

• If the change is artificial – No, he/she cannot. The sex or gender at the time of birth shall be taken into account. He is still, in the eyes of the law, a man although because of the artificial intervention, he now has the physiological characteristics of a woman. (Silverio v. Republic, G.R. No. 174689, October 19, 2007)
• For an intersex person – Cagandahan permits correction of the recorded sex based on the person’s condition and circumstances. It did not establish a categorical marriage rule; assess legal capacity under Article 2 of the Family Code in light of the person’s legally recognized sex. (Republic v. Cagandahan, G.R. No. 166676, September 12, 2008)

Q: Jennifer was registered as a female in her Certificate of Live Birth. In her early years, she suffered from clitoral hypertrophy and was found out that her ovarian structures had minimized. She also alleged that she has no breasts or menstruation. She was diagnosed to have Congenital Adrenal Hyperplasia (CAH), a condition where persons thus afflicted possess secondary male characteristics because of too much secretion of androgen. She then alleged that for all interests and appearances as well as in mind and emotion, she has become a male person. What is Jennifer’s gender or sex?

A: MALE. Where the person is biologically or naturally intersex the determining factor in his gender classification would be what the individual, having reached the age of majority, with good reason thinks of his/her sex. Jennifer here thinks of himself as a male and considering that his body produces high levels of androgen, there is preponderant biological support for considering him as being male. Sexual development in cases of intersex persons makes the gender classification at birth inconclusive. It is at maturity that the gender of such persons is fixed. (Republic v. Jennifer Cagandahan, G.R. No. 166676, September 12, 2008)

Q: Gallo has never been known as “Michael Soriano Gallo.” She has always been female. It was stated in her petition before the Regional Trial Court that her Certificate of Live Birth contained errors which should be corrected. For her, she was not changing the name that was given to her; she was merely correcting its entry. To accurately reflect these facts in her documents, Gallo prayed before the Regional Trial Court of Ilagan City, Isabela in for the correction of her name from "Michael" to "Michelle" and of her biological sex from "Male" to "Female" under Rule 108 of the Rules of Court. In addition, Gallo asked for the inclusion of her middle name, "Soriano;" her mother's middle name, "Angangan;" her father's middle name, "Balingao;" and her parent's marriage date, May 23, 1981, in her Certificate of Live Birth, as these were not recorded. Does Gallo’s petition involve substantive changes?

A: NO. Gallo is not filing the petition to change her current appellation. She is merely correcting the misspelling of her name. To correct simply means "to make or set aright; to remove the faults or error from." To change means "to replace something with something else of the same kind or with something that serves as a substitute. Gallo is not attempting to replace her current appellation. She is merely correcting the misspelling of her given name. "Michelle" could easily be misspelled as "Michael," especially since the first four (4) letters of these two (2) names are exactly the same. The differences only pertain to an additional letter "a" in "Michael," and "le" at the end of "Michelle." "Michelle" and "Michael" may also be vocalized similarly, considering the possibility of different accents or intonations of different people. In any case, Gallo does not seek to be known by a different appellation. The lower courts have determined that she has been known as "Michelle" all throughout her life. She is merely seeking to correct her records to conform to her true given name. (Republic of the Philippines vs. Michelle Soriano Gallo, G.R. No. 207074, January 17, 2018, as penned by J. Leonen)

Essential Requisites of a Valid Marriage:

• Legal capacity of the contracting parties who must be a male and a female; and
• Consent freely given in the presence of the solemnizing officer. (FC, Art. 2)

Age - at least 18 years of age

The attainment of the required minimum age for marriage should be reckoned, not on the date of filing of the application for issuance of a marriage license, but on the date of the marriage. Pursuant to Article 6 of the Family Code, parties may contract marriage on the date of the solemnization of the marriage, i.e., when they 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. (Rabuya, 2009)

XPNs:

• Express If either or both parties believed in good faith that the solemnizing officer had the legal authority to do so. (FC, Art. 35)
• Implied - Article 10 in relation to Article 26 of the Family Code. Under Article 10, a Philippine consular officer may solemnize a marriage abroad between Filipino citizens. A marriage between a Filipino and a foreigner validly celebrated abroad under the law of the place of celebration is generally recognized under Article 26, subject to its stated exceptions. (Sta. Maria, 2010)

Q: Judge Palaypayon solemnized marriages even without the requisite of marriage license. Thus, some couples were able to get married by the simple expedient of paying the marriage fees. As a consequence, their marriage contracts did not reflect any marriage license number. In addition, the judge did not sign their marriage contracts and did not indicate the date of the solemnization, the reason being that he allegedly had to wait for the marriage license to be submitted by the parties. Such marriage contracts were not filed with the Local Civil Registry. Are such marriages valid?

A: NO. A valid marriage license is necessary for the validity of marriage, except in the cases provided for therein. The absence of any of the essential or formal requisites shall generally render the marriage void ab initio. (Cosca v. Palaypayon, A.M. No. MTJ-92-721, September 30, 1994)

MARRIAGES CONTRACTED THROUGH MISTAKE

Lack of legal impediment to marry

Legal impediments include minority (Family Code, Art. 5), an existing marriage subject to the applicable exceptions (Arts. 35(4), 40–41), and the relationships specified in Arts. 37 and 38. Thus, the contracting parties are not legally capacitated to marry each other.

Age-related requirements for marriage and for issuance of the marriage license are distinct. Lack of required parental consent makes the marriage voidable; failure to obtain parental advice or required marriage counseling does not itself invalidate the marriage. (Family Code, Arts. 14–16, 45(1))

Q: A complaint was filed against Judge Rojo for allegedly violating the Code of Judicial Conduct and for gross ignorance of the law. Rojo solemnized marriages without the required marriage license. He instead notarized affidavits of cohabitation and issued them to the contracting parties. He notarized these affidavits on the day of the parties’ marriage.

Was Judge Rojo’s notarization of affidavits of cohabitations proper?

A: NO. Judge Rojo's conduct was held to constitute gross ignorance of the law and a judicial-ethics violation. The governing framework for current judicial-ethics coverage is the Code of Judicial Conduct and Accountability (A.M. No. 25-04-04-SC). As a solemnizing officer, the judge’s only duty involving the affidavit of cohabitation is to examine whether the parties have indeed lived together for at least five years without legal impediment to marry. The guidelines do not state that the judge can notarize the parties’ affidavit of cohabitation. Affidavits of cohabitation are documents not connected with the judge’s official function and duty to solemnize marriages. Notarizing affidavits of cohabitation is inconsistent with the duty to examine the parties’ requirements for marriage. If the solemnizing officer notarized the affidavit of cohabitation, he cannot objectively examine and review the affidavit’s statements before performing the marriage ceremony. (Rex M. Tupal v. Judge Remegio V. Rojo, A.M. NO. MTJ-14- 1842, February 24, 2014, as penned by J. Leonen)

Formal Requisites of a Valid Marriage:

• Marriage Ceremony;
• Authority of the solemnizing officer;
• Valid marriage License, except in a marriage of exceptional character. (FC, Art. 3)

Effect of Absence of Requisites

• In case of absence of any of the essential requisites - marriage is void ab initio
• In case of absence of any of the formal requisites - marriage is void ab initio

Exceptions as to particular formal requisites:

• No marriage license is required for marriages expressly exempted by the Family Code (Arts. 27–34); the authority of the solemnizing officer and a marriage ceremony remain required, subject to the good-faith exception concerning the officer’s authority (Arts. 3–4, 35(2)).
• Either or both parties believed in good faith that the solemnizing officer had the proper authority
• Defect in any of the essential requisites - marriage is voidable
• Irregularity in any of the formal requisites - Valid, but the party responsible for such irregularity shall be civilly, criminally or administratively liable.

Kinds

• Ordinary presumption – ordinary absence; absentee disappears under normal conditions without danger or idea of death.
• Extraordinary presumption – qualified absence; disappearance with great probability of death.

Marriage Ceremony

That which takes place with the:

• Personal appearance of the contracting parties before the solemnizing officer; NOTE: There is no marriage ceremony if what transpired was a mere private act of signing a marriage contract by the contracting parties, without the presence of the solemnizing officer. (Morigo v. People, G.R. No. 145226, February 6, 2004)
• Their personal declaration that they shall take each other as husband and wife; and
• In the presence of not less than 2 witnesses of legal age.

No particular form of ceremony or religious rite for solemnization of the marriage is required by law. (FC, Art. 6)

The declaration of consent need not be vocally expressed. It can be shown by other manifestations or signs of approval and consent. It is the agreement itself, and not the form in which it is couched, which constitutes the contract. (Sta. Maria, 2010)

Common-law marriages are not recognized in the Philippines

A common-law marriage, otherwise referred to as a live-in relationship, is one where the man and the woman just live together as husband and wife without getting married. (Paras, 2016) This form of marriage is not recognized in the Philippines.

SOLEMNIZING AUTHORITY

The following are the persons authorized to solemnize marriage depending upon the circumstances:

• Under ordinary circumstances (FC, Art. 7):
• Incumbent judiciary member - provided, it is within the court’s jurisdiction. NOTE: Where a judge solemnized a marriage outside his court’s jurisdiction, this is a mere irregularity in the formal requisite, which while it may not affect the validity of the marriage, may subject the officiating official to administrative liability. (Rabuya, 2009)
• Priest, rabbi, imam or minister of any church/religious sector
• 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
• Provided at least one of the parties belongs to such church or religious sect.
• Consul general, consul or vice-consul
• Provided both parties are Filipinos and marriage takes place abroad in the country where the consul holds office. (FC. Art. 10)
• Mayors (LGC, Arts. 444 and 445) – including “Acting Mayor”
• Marriages in articulo mortis:
• Ship captain or airplane chief –Provided the marriage is performed:
• During voyage, even during stopovers
• Between passengers or crew members. (FC, Art. 31)

NOTE: Such authority may be exercised not only while the ship is at sea or the plane is in flight but also during stopovers at ports of call. (Rabuya, 2018)

• Military commander of a unit who is a commissioned officer – provided the marriage is performed (FC, Art. 32):
• In absence of chaplain;
• Within zone of military operation;
• Between members of the armed forces or civilians.

Duty of the solemnizing officer in a marriage in articulo mortis

The solemnizing officer in a marriage in articulo mortis after solemnizing such marriage 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 and that he took the necessary steps to ascertain the ages and relationship of the contracting parties and the absence of a legal impediment to the marriage. (FC, Art. 29)

NOTE: If any of the listed solemnizing officers fails to comply with any of the requisites mandated by law for them to validly solemnize a marriage, the marriage is generally void, based on the ground of an absence of a formal requisite (authority of solemnizing officer)

Exception: Unless such marriage was contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so. (FC, Art. 35(2))

Effect of solemnizing officer’s failure to execute an affidavit

It will have no effect as to the validity of the marriage. The marriage will still be valid.

The local civil registrar is given the original of the affidavit which takes the place of a marriage license. (Paras, 2016)

Such affidavit is not an essential or formal requisite of marriage, the same with a Marriage Contract. The signing of the marriage contract and the affidavit is only required for the purpose of evidencing the act, not a requisite of marriage. It is the obligation of the solemnizing officer. It does not affect the validity of marriage. (De Loria v. Felix, G.R. No. L-9005, June 20, 1958)

Presumption of death of absentee under an extraordinary presumption

The absentee presumed to have died under an extraordinary presumption at the time of disappearance. e.g. when the calamity took place.

Q: May a petition for the declaration of presumptive death be the subject of a judicial declaration, if it is the only question upon which a competent court has to pass?

A: NO. Under the NCC, the presumption of death is established by law and no court declaration is needed for the presumption to arise. Moreover, it is clear that a judicial declaration that a person is presumptively dead, being a presumption juris tantum only, subject to contrary proof, cannot become final. If a judicial decree declaring a person presumptively dead, cannot become final and executory even after the lapse of the reglementary period within which an appeal may be taken, then a petition for such a declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.

Q: Juana married Arturo in January 1973. However, because the latter was unemployed the spouses constantly argued. Thus, Arturo left the conjugal dwelling on October 1975. Years passed without any word from Arturo. Juana didn’t hear any news of Arturo, his whereabouts or even if he was alive or not. Believing that Arturo was already dead, Juana married Dante on June 1986. Subsequently, however, Dante's application for naturalization filed with the United States Government was denied because of the subsisting marriage between Juana and Arturo. Hence, on March 2007, Juana filed a Petition for declaration of presumptive death of Arturo with the RTC. The RTC dismissed the petition on the ground that Juana was not able to prove the existence of a well- grounded belief that her husband Arturo was already dead as required under Article 41 of the Family Code.

• Was the RTC correct in dismissing the petition based on Article 41 of the Family Code?
• Will the petition for declaration of presumptive death, therefore, prosper?

A:

• NO. Since the marriages were both celebrated under the auspices of the Civil Code, it is the Civil Code that applies to this case not Art. 41 of the Family Code. Under the Civil Code, proof of well-founded belief is not required. Juana could not have been expected to comply with the requirement of proof of "well- founded belief" since the FC was not yet in effect at the time of her marriage to Dante. Moreover, the enactment of the FC in 1988 does not change this conclusion. The FC shall have no retroactive effect if it impairs vested rights. To retroactively apply the provisions of the FC requiring Juana to exhibit "well- founded belief" will, ultimately, result in the invalidation of her second marriage, which was valid at the time it was celebrated. Such a situation would be untenable and would go against the objectives that the Family Code wishes to achieve.
• NO. Under the NCC, the presumption of death is established by law and no court declaration is needed for the presumption to arise. For the purposes of the civil marriage law, Art. 83 of the Civil Code, it is not necessary to have the former spouse judicially declared an absentee. The law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage. Since death is presumed to have taken place by the seventh year of absence, Arturo is to be presumed dead starting October 1982. Further, the presumption of death cannot be the subject of court proceedings independent of the settlement of the absentee’s estate. In case the presumption of death is invoked independently of such an action or special proceeding, there is no right to be enforced nor is there a remedy prayed for by the petitioner against her absent husband. Neither is there a prayer for the final determination of his right or status or for the ascertainment of a particular fact, for the petition does not pray for a declaration that the petitioner's husband is dead, but merely asks for a declaration that he be presumed dead because he had been unheard of for seven years. In sum, the petition for a declaration that the petitioner's husband is presumptively dead, even if judicially made, would not improve the petitioner's situation, because such a presumption is already established by law. (Valdez v. Republic, G.R. No. 180863, September 8, 2009)

Requisites for validity of subsequent marriage under Art. 41 of the Family Code (BAD)

Before the celebration of the subsequent marriage:

• The Absent spouse had been absent for 4 consecutive years (ordinary absence) or 2 consecutive years (extra-ordinary absence);
• The present spouse has a well-founded Belief that the absent spouse is already dead;
• There is judicial Declaration of presumptive death in a summary proceeding in accordance with Article 253 of the Family Code.

NOTE: The Court in Cantor pointed out the term “well-founded belief” has no exact definition under the law. In fact, the Court notes that such belief depends on the circumstances of each particular case, as such must result from diligent efforts to locate the absent spouse. Such diligence entails an active effort on the part of the present spouse to locate the missing one. The mere absence of a spouse, devoid of any attempt by the present spouse to locate the former, will not suffice. (Republic v. Catubag, G.R. No. 210580, April 18, 2018)

NOTE: If both spouses of subsequent marriage acted in bad faith, such marriage is void ab initio.

Authorized venues of marriage

GR: Must be solemnized publicly within the jurisdiction of the authority of the solemnizing officer:

• Chambers of the judge or in open court;
• Church, chapel or temple; or,
• Office of the consul-general, consul or vice-consul. (FC, Art. 8)

Requisites for issuance of judicial declaration of presumptive death

• That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is a danger of death under the circumstances laid down in Article 391 of the New Civil Code;
• That the present spouse wishes to remarry;
• That the present spouse has a well-founded belief that the absentee is dead; and
• That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. (Republic of the Philippines v. Nolasco, G.R. No. 94053, March 17, 1993)

The requirement for a judgment of the presumptive death of the absent spouse is for the benefit of the spouse present because she could be charged and convicted of bigamy if the defense of good faith based on mere testimony is found incredible. (Eduardo Manuel v. People, G.R. No. 165842, November 29, 2005)

Exceptions:

• Marriage at the point of death;
• Marriage in remote places;
• Marriage at a house or place designated by both of the parties with the written request to the solemnizing officer to that effect. (FC, Art. 8)

NOTE: This provision is only directory, not mandatory. The requirement that the marriage be solemnized in a particular venue or a public place is not an essential requisite for the validity of the marriage.

A marriage solemnized by a judge outside of his jurisdiction is valid

Under Art. 3 of the FC, one of the formal requisites of marriage is the "authority of the solemnizing officer." Under Art. 7, marriage may be solemnized by, among others, "any incumbent member of the judiciary within the court's jurisdiction." Art. 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. If there is defect in such requirement, the same would not make the marriage void, but it merely subjects the officer to criminal, civil, or administrative responsibility. (Navarro v. Domagtoy, A.M. No. MTJ-96- 1088, July 19, 1996)

NOTE: In case of a marriage solemnized by a mayor outside of his territorial jurisdiction, LGC is silent on the matter, hence the above-mentioned case may be applied by analogy.

Finality of judicial declaration of presumptive death

GR: The order of the trial court granting the petition for judicial declaration of presumptive death under Article 41 of the Family Code is immediately final and executory by the express provision of Article 247 of the Family Code. (Republic of the Philippines v. Bermudez-Lorino, G.R. No. 160258, January 19, 2005)

XPN: Under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court. (Republic of the Philippines v. Yolanda Cadacio Granada, G.R. No.187512, June 13, 2012)

The declaration of presumptive death is without prejudice to the effect of reappearance of the absent spouse. (Sta. Maria, 2010) The declared presumption will still only be prima facie, and can be overthrown by evidence. (People v. Archilla, G.R. No. L-15632, February 28, 1961)

Q: The RTC declared Celerina presumptively dead after her husband, Ricardo, had filed a petition for declaration of absence or presumptive death for the purpose of remarriage. Ricardo remarried thereafter. In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented an apartment somewhere in San Juan, Metro Manila, after they had gotten married. After a year, they moved to Tarlac City. They were engaged in the buy and sell business. Ricardo claimed that their business did not prosper. As a result, Celerina convinced him to allow her to work as a domestic helper in Hong Kong. Ricardo initially refused but because of Celerina's insistence, he allowed her to work abroad. She allegedly applied in an employment agency in Ermita, Manila. She left Tarlac two months after and was never heard from again. Ricardo further alleged that he exerted efforts to locate Celerina. He went to Celerina's parents in Cubao, Quezon City, but they, too, did not know their daughter's whereabouts. He also inquired about her from other relatives and friends, but no one gave him any information.

Ricardo claimed that it was almost 12 years from the date of his RTC petition since Celerina left. He believed that she had passed away. According to Celerina, her true residence was in Neptune Extension, Congressional Avenue, Quezon City. This residence had been her and Ricardo's conjugal dwelling until Ricardo left. As a result of Ricardo's misrepresentation, she was deprived of any notice of and opportunity to oppose the petition declaring her presumptively dead. Celerina claimed that she never resided in Tarlac. She also never left and worked as a domestic helper abroad. Neither did she go to an employment agency. She also claimed that it was not true that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in Quezon City. It was he who left the conjugal dwelling to cohabit with another woman. Celerina referred to a joint affidavit executed by their children to support her contention that Ricardo made false allegations in his petition. Is the reappearance not a sufficient remedy since it will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive death and the subsequent marriage?

A: Yes. The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an action to annul the judgment. An affidavit of reappearance is not the proper remedy when the person declared presumptively dead has never been absent.

The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her marriage to the present spouse was terminated when he or she was declared absent or presumptively dead. Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by reappearance is subject to several conditions. The existence of these conditions means that reappearance does not always immediately cause the subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will cause the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are present. Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's reappearance.

A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief that the spouse is already dead. The first marriage will not be considered as validly terminated. Marriages contracted prior to the valid termination of a subsisting marriage are generally considered bigamous and void. Only a subsequent marriage contracted in good faith is protected by law. Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action to declare his subsequent marriage void for being bigamous.

The prohibition against marriage during the subsistence of another marriage still applies. Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until terminated, the "children of such marriage shall be considered legitimate, and the property relations of the spouses in such marriage will be the same as in valid marriages." If the subsequent marriage is terminated by the recording of a sworn statement of reappearance under Article 42, the children of the subsequent marriage conceived before the termination shall still be considered legitimate. Moreover, a judgment declaring presumptive death is a defense against prosecution for bigamy.

It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the effects of the subsequent marriage, specifically, in relation to the status of children and the prospect of prosecuting a respondent for bigamy. However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband or wife." This means that even if Celerina is a real party in interest who stands to be benefited or injured by the outcome of an action to nullify the second marriage, this remedy is not available to her. Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying the effects of the declaration of presumptive death and the subsequent marriage, mere filing of an affidavit of reappearance would not suffice. Celerina's choice to file an action for annulment of judgment will, therefore, lie. (Celerina J. Santos v. Ricardo T. Santos, G.R. 187061, October 8, 2014, as penned by J. Leonen)

NOTE: A mere filing of an affidavit of reappearance would not suffice for the purpose of terminating the subsequent marriage and also of nullifying the effects of the declaration of presumptive death and the subsequent marriage. Celerina does not admit to having been absent. She also seeks not merely the termination of the subsequent marriage but also the nullification of its effects. A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief that the spouse is already dead; the first marriage will not be considered as validly terminated. Hence, Celerina’s choice to file an action for annulment of judgment is the proper remedy as annulment of judgment is the remedy when the RTC’s judgment, order, or resolution has become final, and the remedies of new trial, appeal, petition for relief (or other appropriate remedies) are no longer available through no fault of the petitioner. (Celerina J. Santos v. Ricardo T. Santos, G.R. No. 187061, October 8, 2014)

Exception to the rule requiring authority of the solemnizing officer

The exception to the rule requiring authority of the solemnizing officer is when a marriage is contracted with either or both parties believing in good faith that the solemnizing officer had the authority to do so. [FC, Art. 35 (2)]

MARRIAGE LICENSE

A marriage license is required in order to notify the public that two persons are about to be united in matrimony and that anyone who is aware or has knowledge of any impediment to the union of the two shall make it known to the local civil registrar.

The requirement and issuance of marriage license is the State’s demonstration of its involvement and participation in every marriage. (Rabuya, 2018)

What is required is the marriage license, not the marriage certificate. The latter is not an essential or formal requisite; thus, an oral solemnization is valid. In fact, a marriage may be proved by oral evidence. (Paras, 2016)

Validity of marriage license

The license shall be valid in any part of the Philippines for a period of 120 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. (FC, Art. 20)

If the parties contracted marriage after the lapse of 120 days from the issuance of the marriage license, such marriage shall be considered void for lack of marriage license.

NOTE: Issuance of a marriage license in a city or municipality, not the residence of either of the contracting parties, and the issuance of a marriage license despite the absence of the 10- day period for publication are considered mere irregularities that DO NOT affect the validity of the marriage. An irregularity in any of the formal requisites of marriage does not affect its validity, but the persons responsible for the irregularity may incur civil, criminal, or administrative liability, as provided by law. (FC, Art. 4; Alcantara v. Alcantara, G.R. No. 167746, August 28, 2007)

Termination of Subsequent Bigamous Marriage

The recording of the affidavit of reappearance of the absent spouse in the civil registry of the residence of the parties to the subsequent marriage shall automatically terminate the terminable bigamous marriage (subsequent marriage) unless there is a judgment annulling the previous marriage or declaring it void ab initio. (FC, Art. 42)

In Art. 42, no judicial proceeding to annul a subsequent marriage contracted under Art. 41 is necessary. Also, the termination of the subsequent marriage by affidavit provided for in Art. 42 does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage. (SSS v. Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006)

Q: Gregorio married Janet. When he was employed overseas, he was informed that Janet left. Five years later, he filed an action for her to be declared presumptively dead without alleging that he wishes to remarry. Will his action prosper?

A: NO. A petition to declare an absent spouse presumptively dead may not be granted in the absence of any allegation that the spouse present will remarry. (Republic v. Nolasco, G.R. No. 94053, March 17, 1993)

Q: What is the effect if the parties to the subsequent marriage obtain knowledge that the spouse absent has reappeared?

A: NONE. If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentee's mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. (SSS v. Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006)

Any interested party of the parties, including the parents, their children, the present spouse, or the subsequent spouse of the present spouse, may file the sworn statement of reappearance of the spouse who was absent. (Sta. Maria, 2010)

Q: Nilda was married to Dante on November 29, 1975. On December 2, 1975, Dante, a member of the Armed Forces of the Philippines, left Nilda and went to Jolo, Sulu, where he was assigned. Since then, Nilda has heard no news from Dante and has tried everything to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Thus, on April 14, 2009, she filed before the RTC a petition to declare Dante as presumptively dead for the purpose of remarriage, alleging that after the lapse of thirty-three (33) years without any kind of communication from him, she firmly believes that he is already dead. Both RTC and CA ruled in favor of Nilda. Is the ruling of the courts correct?

A: NO. Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already dead.

The "well-founded belief in the absentee's death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice.

In this case, Nilda testified that after Dante's disappearance, she tried to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than making said inquiries, however, Nilda made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. (Republic v. Tampus, G.R. No. 214243, March 16, 2016)

Last Read 06/18/2024

My Idea: Since there is no hard and fast rule as to the “well-founded belief” provision or the “earnest effort” that should be made by the petitioning spouse, just remember the principle that presumption of death is not favored by law.

Q: When are non-bigamous subsequent marriages void?

A: The subsequent marriage of a person whose prior marriage has been annulled but contracted said subsequent marriage without compliance with Art. 52 of the FC, shall be VOID.

Before he contracts a subsequent marriage, he must first comply with the requirement provided for in Art. 52, viz:

The recording in the civil registries and registries of properties of the following:

• Judgment of annulment;
• Partition;
• Distribution of properties; and
• Delivery of presumptive legitimes.

Q: Ana Rivera had a husband, a Filipino citizen like her, who was among the passengers onboard a commercial jet plane which crashed in the Atlantic Ocean ten (10) years earlier, and has never been heard of ever since. Believing that her husband had died, Ana married Adolf Cruz Staedler, a divorced German national born of a German father and a Filipino mother residing in Stuttgart. To avoid being required to submit the required certificate of capacity to marry from the German Embassy in Manila, Adolf stated in the application for marriage license stating that Adolf was a Filipino, the couple got married in a ceremony officiated by the Parish Priest of Calamba, Laguna in a beach in Nasugbu, Batangas, as the local parish priest refused to solemnize marriage except in his church. Is the marriage valid?

A: If the missing husband was in fact dead at the time the second marriage was celebrated, the second marriage was valid. Actual death of a spouse dissolves the marriage ipso facto whether or not the surviving spouse had knowledge of such fact. A declaration of presumptive death even if obtained will not make the marriage voidable because presumptive death will not prevail over the fact of death.

If the missing husband was in fact alive when the second marriage was celebrated, the second marriage was void ab initio because of a prior subsisting marriage. Had Ana obtained a judicial declaration of presumptive death before remarrying, and satisfied Article 41’s other requirements, the subsequent marriage would have been valid but terminable under Article 42 upon the recording of an affidavit of reappearance. In both cases, the fact that the German misrepresented his citizenship to avoid having to present his Certificate of Legal Capacity is an irregularity which does not affect the validity of the marriage. Holding the ceremony outside the church is a venue irregularity that does not itself invalidate the marriage. If the priest lacked authority to solemnize it at that location, validity must be assessed under Article 35(2), including whether either or both parties believed in good faith that he had authority.

Status of marriages celebrated during the suspension of the issuance of marriage license

The status of the marriage if the parties get married within the said 3-month period depends:

• If the parties did not obtain a marriage license – the marriage shall be void for lack of marriage license.
• If the parties were able to obtain a marriage license – the marriage shall be valid without prejudice to the actions that may be taken against the guilty party.

Persons authorized to issue the marriage license

The marriage license is issued by the local civil registrar of the city or municipality where either contracting party habitually resides. (FC, Art. 9)

Obtaining a marriage license in a place other than where either party habitually resides is a mere irregularity.

FOREIGN NATIONAL

Additional requirement for foreign national applicants

When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials.

Stateless persons or refugees from other country shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (FC, Art. 21)

Marriage without the required certificate of legal capacity to marry is valid

The status of the marriage celebrated on the basis of a license issued without the required Certificate of Legal Capacity is valid as this is merely an irregularity in complying with a formal requirement of the law in procuring a marriage license, which will not affect the validity of the marriage. (Garcia v. Recio, G.R. No. 138322, October 2, 2001)

EXCEPTIONS TO MARRIAGE LICENSE REQUIREMENT

Marriages exempt from the marriage license requirement

• Marriages among Muslims or among members of ethnic cultural communities, if solemnized according to their customs, rites, or practices (FC, Art. 33).
• Marriages where either or both parties are at the point of death (FC, Art. 27). This includes marriages in articulo mortis solemnized by a ship captain or airplane pilot between passengers or crew members (FC, Art. 31), and by a qualified military commander between persons within a zone of military operation (FC, Art. 32).
• Marriages where either party’s residence has no means of transportation that would allow that party to appear personally before the local civil registrar (FC, Art. 28; Rabuya, 2018).
• Marriages between a man and a woman who have lived together as husband and wife for at least five years without a legal impediment to marry each other (FC, Art. 34).
• Marriages solemnized outside the Philippines where the country of solemnization does not require a marriage license.

Guidelines set by the Court to aid it in its disposition of cases involving psychological incapacity

In the landmark case of Republic of the Philippines v. Court of Appeals and Molina, the Supreme Court enumerated the following guidelines in invoking and proving psychological incapacity under Article 36 of the Family Code:

• Burden of proof to show the nullity of the marriage belongs to the plaintiff;
• The root cause of the psychological incapacity must be alleged in the complaint, sufficiently proved, and clearly explained in the decision; it need not be medically or clinically diagnosed or proved through expert testimony. (Family Code, Art. 36; Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021)
• The incapacity must be proven to be existing at “the time of the celebration” of the marriage;
• Such incapacity must also be shown to be enduring and incurable in the legal sense, relative to the particular spouse and marriage, not medically or clinically permanent or incurable. (Family Code, Art. 36; Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021)
• The psychological incapacity must be grave: it must reflect a serious, enduring aspect of the spouse’s personality that renders the spouse incapable of assuming essential marital obligations, not merely unwilling to perform them. It need not be a medically diagnosed illness. (Family Code, Art. 36; Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021)
• The essential marital obligations must be those embraced by Arts. 68 up to 71 of the FC as regards the husband and wife, as well as Arts. 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;
• 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; (PERSUASIVE)
• Under A.M. No. 02-11-10-SC, sec. 9, the public prosecutor investigates whether the parties are in collusion and appears for the State at pre-trial if no collusion is found; appearance by both the prosecutor and the Solicitor General as counsel for the State is not an unqualified requirement.

Under A.M. No. 02-11-10-SC, secs. 9 and 18, the public prosecutor investigates whether collusion exists, and the State participates as provided in the Rule; no OSG certification is required before judgment. (Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021) (Republic of the Philippines v. Court of Appeals and Molina, G.R. No. 108763, February 13, 1997; Danilo A. Aurelio v. Vide Ma. Corazon P. Aurelio, G.R. No. 175367, June 6, 2011)

NOTE: In Republic v. Quintero-Hamano, the SC held that these guidelines may not be relaxed just because the spouse alleged to be psychologically incapacitated happens to be a foreign national. The norms used for determining psychological incapacity should apply to any person regardless of nationality because the rules were formulated on the basis of studies of human behavior in general. (Rabuya, 2018)

In Marcos v. Marcos, the Supreme Court held categorically that psychological incapacity “may be established by the totality of evidence presented” and that “there is no requirement that the respondent should be examined by a physician or a psychologist as a condition sine qua non for such declaration.” (Marcos v. Marcos, G.R. No. 136490, October 19, 2000)

Requisites for the 5-year cohabitation as an exception to the marriage license requirement

• Living together as husband and wife at least 5 years before the marriage. The 5-year period must be characterized by:
• Exclusivity – the partners must live together exclusively, with no other partners, during the whole 5-year period.
• Continuity – such cohabitation was unbroken.

NOTE: The period is counted from the date of celebration of marriage. It should be the years immediately before the day of the marriage.

• No legal impediment to marry each other During the period of cohabitation.

NOTE: The five-year period of cohabitation must have been a period of legal union had it not been for the absence of marriage.

• Fact of absence of legal impediment must be present at the time of the marriage.
• Parties must execute an Affidavit that they are living together as husband and wife for 5 years and that they do not have any impediment to marry.
• Solemnizing officer must execute a Sworn statement that he had ascertained the qualifications of the parties and found no legal impediment to their marriage. (Manzano v. Sanchez, A.M. No. MTJ-00- 1329, March 8, 2001)

Q: Pepito was married to Teodulfa. Teodulfa was shot by him resulting in her death. After 1 year and 8 months, he married Norma without any marriage license. In lieu thereof, they executed an affidavit stating that they had lived together as husband and wife for at least five years and were thus exempt from securing a marriage license.

• What is the status of their marriage?
• Would your answer be the same if Pepito was separated in fact from Teodulfa?

A:

• The marriage is void for lack of marriage license. To be exempt from the license requirement under the 5-year cohabitation rule, the cohabitation should be in the nature of a perfect union that is valid under the law but rendered imperfect only by the absence of the marriage contract and is characterized by continuity, that is, unbroken, and exclusivity, meaning no third party was involved at any time within the 5 years. It should be a period of legal union had it not been for the absence of the marriage. In this case, Pepito and Norma are not exempt from the marriage license requirement because at the time of Pepito and Norma's marriage, it cannot be said that they have lived with each other as husband and wife for at least five years prior to their wedding day because from the time Pepito's first marriage was dissolved to the time of his marriage with Norma, only about twenty months had elapsed.
• Yes. The marriage is still void. Even if they were separated in fact, and thereafter both Pepito and Norma had started living with each other that has already lasted for five years, the fact remains that Pepito had a subsisting marriage at the time when he started cohabiting with Norma. It is immaterial that when they lived with each other, Pepito had already been separated in fact from his lawful spouse. The subsistence of the marriage even where there was actual severance of the filial companionship between the spouses cannot make any cohabitation by either spouse with any third party as being one as "husband and wife". (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000)

Q: Roderick and Faye were high school sweethearts. When Roderick was 18 and Faye, 16 years old, they started living together as husband and wife without the benefit of marriage. When Faye reached 18 years of age, her parents forcibly took her back and arranged for her marriage to Brad. Although Faye lived with Brad after the marriage, Roderick continued to regularly visit Faye while Brad was away at work. During their marriage, Faye gave birth to a baby girl, Laica. When Faye was 25 years old, Brad discovered her continued liaison with Roderick and in one of their heated arguments, Faye shot Brad to death. She lost no time in marrying her true love Roderick, without a marriage license, claiming that they have been continuously cohabiting for more than 5 years. Was the marriage of Roderick and Faye valid?

A: No. Their marriage is void for lack of a marriage license. They did not continuously cohabit as husband and wife for the five years immediately preceding their marriage while free of a legal impediment to marry each other: their cohabitation was interrupted, and Faye was married to Brad during part of the claimed period. The Article 34 exception therefore does not apply. (Family Code, Arts. 3(2), 4, 34 and 35(3); Niñal v. Bayadog, G.R. No. 133778, March 14, 2000)

Requisites for Art. 147 to Operate

The man and the woman:

• Must be capacitated to marry each other;
• Live exclusively with each other as husband and wife; and
• Their union is without the benefit of marriage or their marriage is void. (Pineda, 2011, citing Mercado-Fehr vs. Fehr, G.R. No. 152716, 23 Oct. 2003)

NOTE: Art. 147 is not applicable to a situation where the cohabitation is adulterous or amounts to concubinage but rather Art. 148 is applicable. (Pineda, 2011)