Family Law: Essential and Formal Requisites of Marriage

No marriage in the Philippines shall be valid UNLESS the following essential and formal requisites are present as provided under Articles 2 and 3 of the Family Code of the Philippines.

ESSENTIAL REQUISITES

  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.

FORMAL REQUISITES

  1. AUTHORITY of the Solemnizing Officer;

  2. A VALID MARRIAGE LICENSE EXCEPT in the case of marriages exempt from the license requirement; 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.

The TOTAL ABSENCE of any of the ESSENTIAL or FORMAL requisites shall render the marriage VOID AB INITIO EXCEPT as stated in Article 35(2), supra, which provides that marriages contracted with either or both of the contracting parties believing in good faith that the Solemnizing Officer had the legal authority to perform marriages shall be valid.

A DEFECT in any of the ESSENTIAL requisites shall render the marriage VOIDABLE as provided in Article 45, supra.

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 (Article 4, supra).

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Family Law: Marriages Exempt from the License Requirement

A Marriage License is issued by the Local Civil Registrar of the city or municipality where either of the contracting parties to the marriage habitually resides after completion of the 10-day period of publication of the Notice of the impending marriage.  A Marriage License is DIFFERENT from a Marriage Certificate/Marriage Contract. The latter is issued by the Solemnizing Officer AFTER the marriage, in which the contracting parties to the marriage declare, among others, that they take each other as husband and wife. It is the primary or best evidence to prove the existence (NOT validity) of the marriage when the question as to whether or not a marriage has been contracted arises in litigation. The former, on the other hand, is a formal requisite of marriage issued BEFORE the marriage, the total absence of which at the time of the celebration of the marriage renders the marriage void ab initio EXCEPT in the case of marriages exempt from the license requirement as provided under Articles 27 to 34 of the Family Code of the Philippines, to wit:

  1. Marriages among Muslims or among members of the ethnic cultural communities solemnized in accordance with their customs, rites, or practices;

  2. Marriages in articulo mortis (or where either or both of the contracting parties are at the point of death), even if the ailing party subsequently survives;

  3. Marriages in remote places where residence of either party is so located that there is no means of transportation to enable such party to appear personally before the Local Civil Registrar; and

  4. Marriages between a man and a woman who have lived together as husband and wife for at least 5 years and without any legal impediment to marry each other at the time of the celebration of the marriage.

A Marriage License is valid in any part of the Philippines, NOT abroad, for a period of 120 days from the date of issue. The date of issue refers to the date of signing of the Local Civil Registrar of the Marriage License. The contracting parties to the marriage must make use of the same within the 120-day period; otherwise, it shall be deemed AUTOMATICALLY cancelled. A marriage contracted with an expired Marriage License is equivalent to a marriage solemnized without a Marriage License; hence, such marriage is void ab initio.

Note that the first exemption applies ONLY to Muslims and members of the ethnic cultural communities of the Cordillera Autonomous Region because they have a separate law – Code of Muslim Personal Laws of the Philippines (P.D. No. 1083) and the Organic Act of the Cordillera Autonomous Region (R.A. No. 6766), respectively. Other ethnic groups are still governed by the Family Code of the Philippines (Sta Maria, 2004).

In the cases of the second and third exemptions, the Solemnizing Officer shall state in an Affidavit executed before the Local Civil Registrar or any other person legally authorized to administer oaths that the marriage was performed in articulo mortis or that the residence of either party, specifying the barrio or barangay, is so located that there is no means of transportation to enable such party to appear personally before the Local Civil Registrar and that the said Solemnizing Officer took the necessary steps to ascertain the ages and relationship of the contracting parties to the marriage, and the absence of a legal impediment to the marriage. The original of the above-mentioned Affidavit together with a legible copy of the Marriage Contract shall be sent by the Solemnizing Officer to the Local Civil Registrar of the municipality where it was performed within the period of 30 days after the performance of the marriage (Articles 29-30, Family Code of the Philippines).

In the case of the last exemption, the contracting parties to the marriage shall execute an Affidavit of Cohabitation, stating therein the facts that (a) they have lived together as husband and wife for at least five years, and (b) no legal impediment to marry each other exists at the time of the celebration of the marriage. Also, the Solemnizing Officer shall execute a Sworn Statement stating under oath that he ascertained the qualifications of the contracting parties to the marriage and found no legal impediment to the marriage (Article 34, supra). In the computation of the 5-year period of cohabitation, the 5-year period should be computed on the basis of cohabitation as husband and wife where the only missing factor is the Marriage Contract to validate the union. This 5-year period should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by exclusivity – meaning no legal impediment was present at any time within the 5 years, and continuity – that is unbroken (Republic vs. Dayot [2008]; Niñal vs. Bayadog [2000]).

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Family Law: Who are Legally Authorized to Solemnize Marriages?

Under Article 7 of the Family Code of the Philippines, 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 him by his church, or religious sect and provided that at least one of the contracting parties to the marriage belongs to the solemnizing officer’s church or religious sect;

  3. Any SHIP CAPTAIN or AIRPLAINE CHIEF only in the cases mentioned in Article 31, i.e. in cases of Marriages in articulo mortis (or where one of the parties is at the point of death) between passengers or crew members not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call;

  4. Any MILITARY COMMANDER of a unit, who is a commissioned officer, 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, i.e. in cases of Marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians; or

  5. Any CONSUL-GENERAL, CONSUL, or VICE-CONSUL in the case provided in Article 10, i.e. Marriages between Filipino citizens abroad.

In addition, the Municpial or City MAYOR or, in case of temporary vacancy, the VICE-MAYOR may now solemnize marriages pursuant to Section 444(xviii) and 445(4) of R.A. No. 7160 or the Local Government Code of 1991. In the case of the VICE-MAYOR, who solemnizes a marriage in proper cases, it is immaterial whether he is the Acting Mayor or “merely acting as mayor” for, in both instances, he discharges all the duties and wields the power appurtenant to the Office of the Mayor (People vs. Bustamante [1959] citing Laxamana vs. Baltazar [1952]).

Any other person NOT included in the enumeration above is NOT legally authorized to perform marriages. Marriages solemnized by any such person not legally authorized to perform marriages shall be void ab initio UNLESS such marriages were contracted with EITHER or BOTH parties to the marriage BELIEVING IN GOOD FAITH that the Solemnizing Officer had the legal authority to do so (Article 35, Family Code of the Philippines).

Note that it is not the presence or absence of the Solemnizing Officer which constitutes the formal requisite of marriage BUT the absence or presence of his LEGAL AUTHORITY to perform marriages (Navarro vs. Domagtoy [1996]). The TOTAL ABSENCE of said legal authority of the Solemnizing Officer at the time of the celebration of the marriage renders the marriage void ab initio. An IRREGULARITY in the legal authority of the Solemnizing Officer, on the other hand, does NOT affect the validity of the marriage but renders the party or parties responsible for the irregularity civilly, criminally, and administratively liable (Article 4, supra).

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