(2) Persons (Review) Atty.

Galas Lectures : June 17, 18, 23, 24

Karla Deles & Jazzie Sarona

JUNE 17
We are starting with marriage tonight. On the provisions
of the Civil Code on marriage and repealed by the Family
Code. The Family Code itself provides that the provisions
under _ of the FC are given retroactive effect provided no
vested rights of third persons shall be prejudiced by such
retroactivity.
MARRIAGE
Chapter 1. Requisites of Marriage
Article 1. Marriage is a special contract of permanent union
between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life. It is the
foundation of the family and an inviolable social institution
whose nature, consequences, and incidents are governed by
law and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code. (52a)
This provides the definition of marriage.
So in order for one to contract a valid marriage, before we
go to the requisites, take note of the relevant constitutional
provisions that protect the sanctity of marriage. This is found
in Sec. 12 Art. II; Sec. 1 Art XV - recognizing the Filipino family
as the foundation of the nation. This is asked I think in the
1992 bar exam. The question was the different constitutional
provisions protecting marriage as well as the family.
There are 2 requisites of marriage: (1) Formal; and (2)
Essential.
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)
There are 2 Essential requisites:
(1) the legal capacity of the contracting parties who must be a
male and a female.
In the case of Silverio v. Republic, this involves a sex reassignment. One of the issues is the petition for a change of
name as well as the correction in the entry of the gender from
male to female for his anticipated marriage to his American
fianc. SC: To allow such would be to violate Art. 2(1) of the FC
which requires that the parties to the marriage must be a
male and a female. Not a male and a male who have
undergone sex re-assignment. The law is very clear, male and
female. So the recourse of Mr. Silverio is to go to Congress
and lobby to amend the law to allow persons who have
undergone sex re-assignment to contract a marriage with
another person of the same sex although typically they are no
longer of the same sex because of the surgery.
(2) Consent freely given in the presence of the solemnizing
officer.
We do not recognize marriages by proxy. This is because
of the requirement of the personal appearance in the
presence of the solemnizing officer and the declaration that
they each other as husband and wife in the presence of at
least two witnesses of legal age.
Then we have the Formal requisites.

Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases 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)
So there are three formal requisites.
(1) Authority of the solemnizing officer;
So who are the solemnizing officers? These are provided in Art. 7.
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)
The enumeration in Art. 7 is exclusive. Except that the mayor is
included there by virtue of the LGC, which now authorizes the
mayor to solemnize marriages.
(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title;
The following are marriages exempt from marriage license:
1. Marriage in articulo mortis where there is the awareness of
impending death on the part of the party who is about to die. Or
in case both parties are dying there must be that awareness of
impending death.
2. When parties are residing in remote places where it would be
impossible for them to appear before the local civil registrar.
So in both instances, what is required is that there must be an
affidavit executed in lieu of the license. With respect to
marriages in articulo mortis if the party who is about to die
survives it will not affect the validity of the marriage.
3. Muslim marriages as well as marriages of members other ethnic
cultural communities, provided, the marriage is solemnized in
accordance with their rites and customs.
4. Article 34 on ratification of marital cohabitation where they have
lived together as husband and wife for 5 consecutive years.
(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.
In Republic v. CA the wife filed a petition for declaration of nullity
of marriage on the ground of absence of a marriage license.
According to her it was the husband who procured all the
requirements in order for them to get married. However, she found
out that there was a license that was issued by the local civil

(2) Persons (Review) Atty. Galas Lectures : June 17, 18, 23, 24

Karla Deles & Jazzie Sarona

registrar of Pasig City. To support her contention that because
there was a number that was stated in the marriage contract
and that marriage license number was fictitious, she obtained
a certification from the LCR of Pasig City where it held that
after due search there is a difficulty to find the marriage
license. SC: That was sufficient to prove that indeed there was
no marriage license that was issued and obtained by the
husband.
It was also in this case that the SC said that there is no such
thing as secret marriage. It is not secret because it is kept
secret from relatives and friends. But the marriage is valid for
all intents and purposes for as long as the essential and
formal requisites are complied with.
Subsequent to this case of Republic v. CA, there was this 2006
case decided by the SC. _ v. Cadena. The husband filed a
petition for the declaration of nullity of marriage on the
ground that there was no marriage license that was obtained.
What he did was to secure a certification from the LCR. The
certification was to this effect: No marriage license No.
2770792 was ever issued by this office. With regards to
marriage license No. 29290792, we exerted all efforts but we
cannot find said number. Hope and understand our loaded
work that we cannot give you our force locating the above
problems, signed by the LCR. Subsequent to the first
certification another certification was obtained by the
petitioner. But the second certification more or less contained
the same contents of the first certification. The SC denied the
petition for declaration of nullity of marriage because the
certification obtained by the petitioner was not sufficient to
prove that indeed there was no marriage license issued by the
LCR of San Juan. If you will notice the certification says hope
and understand our loaded work that we cannot give you our
force locating the above problems. In short, they could not
find it because they have loaded work. But there is a
possibility that the marriage license is actually present.
According to the SC, assuming that there was no marriage
license or that the certification was sufficient, they should
have instead presented the person who has legal custody of
the logbook who controls the issuance of the marriage license.
And in as much as it was not shown that the person in charge
has already retired, dead, or is missing the testimony of such
person in charge is very vital to prove that indeed there was
no marriage license issued. So, absent such testimony of the
person in charged, the certification is not sufficient because
according to the SC that every intendment of the law and
facts is toward the validity of marriage. The indissolubility of
the marriage bond always presumes marriage.
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).
There were bar questions on this in 1996 and 1999.
Absence makes the marriage void from the very beginning
and defect renders the marriage annullable under Article 45.
And the irregularity that has affected the validity of the
marriage renders the person responsible for such irregularity
to criminal, civil, or administrative liability.
There is this decision of the SC which I consider as a deviant
decision, the case of Morego v. People. This is actually a
criminal case. Lucio and Lucia were classmates. After
graduation, Lucia went to Singapore to work. Lucio was left in
Bohol. While Lucia was in Singapore, Lucia wrote Lucio and
then they became sweethearts. When Lucia went back to the
Philippine, she told Lucio that they are going to get married
because after the marriage shes going to take him to Canada.
So they got married. After the marriage, Lucia went to

Canada. But instead of having Lucio come with her to Canada she
divorced Lucio. And Lucio received a copy of the divorce decree
that was sent by Lucia. So Lucio believing that he was already
capacitated to marry because of that divorce decree obtained by
the wife, he contracted another marriage. When Lucia learned of
the marriage, she went back to the Philippines and filed a case
against Lucio for bigamy. Lucio was acquitted by the court because
at that time that the parties entered into the marriage there was
no solemnizing officer. The parties merely signed the marriage
contract. There was no marriage license. There was no appearance
of the solemnizing officer. They merely decided ok this is the
marriage contract sign here, were already married. So, the SC
said that were the parties merely signed the marriage contract
without the presence of the solemnizing officer and no actual
marriage ceremony took place, the first element of bigamy as a
crime is missing because the first element is must be legally
married. In the case at bar, legally speaking, Morego was not
married to Lucia. Thus, there is no first marriage to speak of.
Because the contention of Lucia is for Lucio to obtain a declaration
of nullity of the prior marriage before he could contract another
marriage. But according to the SC, there is no need for Lucio to
obtain a declaration of nullity because there was no semblance of
a valid marriage. Hence, there is no need of a judicial declaration
of nullity. Such private act of signing a marriage contract alone
without more cannot be deemed to constitute an ostensibly valid
marriage for which Lucio might be held liable for bigamy unless
there is a prior judicial declaration of nullity before he contracts
another marriage.
So, if during the bar, if all facts are on all fours with this case, then
you can site Morigo v. PP decision; otherwise, you go to the safer
answer which is the requirements of the obtaining judicial
declaration of nullity of a previous void marriage.
Do not mind the case of Estrada vs. Escritor. I dont think that
would really come out because the debates there would not end.
Isnt it that one of those authorized to solemnize is the judge? But
the requirement is within the courts jurisdiction. Suppose the
judge would solemnize the marriage outside of his jurisdiction like
in the case of a trial court judge whose jurisdiction is within Region
XI. But he solemnized a marriage in Region XII which is outside his
region. Would that affect the validity of the marriage? The answer
was found in the case of Araes vs. Occiano. The SC in that case
cited Navarro vs. Domatoy where it says that where a judge
solemnizes a marriage outside its courts jurisdiction there is only
a resultant irregularity in the formal requisites laid down in Article
which while it may not affect the validity of the marriage but may
subject the officiating official to administrative liability.
In this case of Araes vs. Occiano, the marriage was declared void
because the marriage license was obtained after the solemnization
of the marriage. But if the issue per se is solemnization by a judge
outside of his jurisdiction it will not affect the validity of the
marriage but merely sanctions the judge to administrative liability.
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)
Article 37 would be incestuous marriages. Article 38 on void
marriages by reason of public policy.
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.

(2) Persons (Review) Atty. Galas Lectures : June 17, 18, 23, 24

Karla Deles & Jazzie Sarona

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)
So in Article 7 these are persons authorized to solemnize
marriage.
(1) Any incumbent member of the judiciary within the court's
jurisdiction;
This would include the Sandiganbayan Justices but not justices
of tribunals exercising quasi-judicial functions, such as the
Court of Tax Appeals.
(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;
If the priest, rabbi, or imam is not registered in the civil
registrar he is not authorized to solemnize marriages.
But if one or both of the contracting parties believe in good
faith that the solemnizing authority had the authority to do so
then the marriage is valid.
But this does not apply in a situation where the parties
believed in good faith that the Secretary of Justice is
authorized to solemnize marriages. That believe in good faith
is immaterial. This is because Article 7 is exclusive. What is
not found there is not authorized to solemnize marriages.
(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,
Marriages in articulo mortis may be solemnized by the ship
captain or airplane chief, or a military commander of a unit in
the absence of a chaplain. But this is only in cases of articulo
mortis.
(5) Any consul-general, consul or vice-consul in the case
provided in Article 10.
This applies only between Filipino citizens permanently
residing or sojourning abroad and in their places of

assignment. So if for example the Consul of Monaco solemnized

the marriage but here in the Philippines, the marriage is void
because the marriage should be in Monaco not in the Philippines.
By virtue of the Local Government Code effective January 1, 1992,
MAYORS are already authorized to solemnize marriages. But
marriages solemnized by mayors prior to the effectivity of the LGC
are void. Belief in good faith will not cure the absence of authority
of the mayor. The mayor was stripped of his authority to solemnize
marriages when the Family Code took effect on August 3, 1988. It
was only conferred back not by the amendment of the FC but by
virtue of the passage of the LGC which took effect in January 1,
1992. So, from August 3, 1988 to December 31, 1991, mayors are
not authorized to solemnize marriages.
Now, if the parties are between the ages of 15 and 21, it is
required that they must obtain parental consent. Without such
parental consent the marriage is voidable.
If between the ages of 21 and 25, there must be parental advice.
Absent such parental advice does not affect the validity of the
marriage but merely suspends the issuance of the marriage
license. But if the marriage license is nonetheless issued by the
LCR that will not affect the validity of the marriage by reason of
absence of parental consent.
Of course there are other requirements if you get married with the
Catholic Church. You have to attend seminars.
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 canceled 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)
Under Article 20, the license shall be valid for 120 days in any part
of the Philippines and shall automatically expire if not used within
said 120 days.
Of course, after the marriage there is now the marriage certificate
of marriage contract that may now be issued by the solemnizing
officer.
But suppose there is no marriage contract on file with the LCR. The
duty of furnishing the LCR of a copy of the marriage contract does
not lie upon the parties to the marriage. It is actually the
obligation of the solemnizing officer to furnish the LCR with a copy
or copies of the marriage contract.
The absence of the marriage contract does not mean that there
was no marriage that has taken place. A marriage contract is
neither an essential nor a formal requisite of marriage. Marriage
can be proved by other evidences such as affidavits of parties who
attended the marriage celebration foremost of which are the
ninangs and the ninongs, titles to the properties, and also under
the Rules of Court under the presumption of those who deport
themselves as husbands and wives before the public and are
known as such are presumed to be married and those who say
otherwise have the burden of proof, and other proofs of fact of
marriage. So, the absence of the marriage contract does not per
se mean that there is no valid marriage. It can be proved by other
evidence.
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

(2) Persons (Review) Atty. Galas Lectures : June 17, 18, 23, 24

Karla Deles & Jazzie Sarona

stating the circumstances showing such capacity to contract
marriage. (66a)
In Recio v Recio, without that legal capacity to contract
marriage then the marriage has to be declared void. In effect,
the SC said that it is a substantial requirement. Not essential,
not formal but a substantial requirement.
So the absence of the legal capacity to contract marriage is a
substantial requirement without which the marriage has to be
declared void. That was the pronouncement by the SC in that
case of Recio.
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)
Art. 35(1) parties are below 18 years of age even with the
consent of the parents or guardian; (4) bigamous or
polygamous marriages not falling under Art. 41; (5) mistake
as to the identity of the other contracting party; and (6)
subsequent marriages void under Art. 53 for failure to comply
with the requirements under Art. 52;
Art. 36 where the marriage is void by reason of the
psychological incapacity of one or both of the contracting
parties.
Art. 37 incestuous marriages.
Art. 38 marriages that are void for reasons of public policy.
So, those are the exceptions that would render the marriage
void even if it was solemnized abroad in accordance with the
laws of that particular foreign country.
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)
Before the case of Republic v. Orbecido, there were several
bar questions asked and examiners themselves cannot agree
on what should be the proper answer. The question would
normally be in this wise: X and Y both Filipinos contracted
marriage. Subsequently, Y obtained another citizenship and
divorced X. Is X capacitated to marry under our laws.
Some examiners would say NO, because Art. 26 is very clear.
It says between a Filipino citizen and a foreigner. So Art.
26(2) will not apply. The law is very clear, Filipino and
foreigner at the time of the marriage. It does not envision a
marriage between two Filipino citizens who would later on one
or both of them would renounce their citizenship and then the
Filipino spouse would contract a subsequent marriage.
Comes now this case of Rep. v. Orbecido, III which put to rest
the different opinions of the examiners. In this case, Cipriano
and Lady Myros were both Filipinos. They got married. Later,
Lady Myros for the US and obtained American citizenship and
divorced the husband Cipriano and married Innocent Stanley.
When Cipriano learned of the divorce he now filed before the
courts, in fact he is a very law abiding citizen, requesting
permission for him to remarry because of that divorce decree.
The Republic opposed the petition claiming that Art. 26

cannot apply because it states Filipino and foreigner. According

to the Republic, Cipriano and Lady Myros were Filipinos at the time
of the marriage. So he is not capacitated to re-marry.
SC: Article 26 does not appear to govern the situation presented
by the case at hand. It seems to apply only to cases where at the
time of the celebration of the marriage the parties are a Filipino
and a foreigner. The jurisprudential answer lies latent in the 1998
case of Quita v. Court of Appeals, remember Quita who divorced
her husband, married thrice and when the Filipino husband died
returned to the Philippines and said, that is my share, I am the
wife. And according to the SC: No, resolve first the citizenship of
Fe at the time that she obtained the first decree of divorce
because if she was still a Filipino she still has the right over the
property of the late husband. But if she were already a naturalized
citizen then we apply the case of Van Dorn vs. Romillo. In short,
wala ka nang pakialam sa estate ng asawa mo. That was what was
used by the SC in the case of Orbecido, III.
Thus, taking into consideration the legislative intent and applying
the rule of reason, we hold that Paragraph 2 of Article 26 should
be interpreted to include cases involving parties who, at the time
of the celebration of the marriage were Filipino citizens, but later
on, one of them becomes naturalized as a foreign citizen and
obtains a divorce decree. The Filipino spouse should likewise be
allowed to remarry as if the other party were a foreigner at the
time of the solemnization of the marriage. To rule otherwise would
be to sanction absurdity and injustice. Where the interpretation of
a statute according to its exact and literal import would lead to
mischievous results or contravene the clear purpose of the
legislature, it should be construed according to its spirit and
reason, disregarding as far as necessary the letter of the law.
The reckoning point is not the citizenship of the parties at the time
of the celebration of the marriage, but their citizenship at the time a
valid divorce is obtained abroad by the alien spouse capacitating
the latter to remarry.
So that is now the answer. The reckoning point is not the
citizenship at the time of the celebration of the marriage but at the
time that the decree of divorce was obtained by the alien spouse.
So, more or less, I think that will come out in the Bar. If not this
year, next year. This has yet to be asked.
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 are found
no legal impediment to the marriage. (76a)
We have two cases here in Art. 34 on Legal Ratification of Martial
Cohabitation.
The first case is the case of Nial vs. Badayog, where the SC
strictly interprets that cohabitation of 5 years. The SC says that it
must be one short of a perfect marriage absent only the marriage
license. So, the entire 5 year period must be free from any
impediments in order for them to be exempt from the marriage
license requirement. And execute merely an affidavit.
In this case of Nial vs. Badayog the parties, after the death of the
wife, entered into a marriage but it was short of the 5-year period.
Although they have been cohabiting already for more than 5 years
as husband and wife. But during the 5-year cohabitation period
there was this impediment which is the existence of the marriage
between the husband and the deceased spouse. The children file a
petition for declaration of nullity of the subsequent marriage. They
were allowed because according to the SC they have the legal

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Karla Deles & Jazzie Sarona

interest or standing to file the petition. The heirs of the first
marriage would be affected with respect to their successional
rights if the subsequent marriage will not be declared void by
the court. So, they have the legal capacity to question the
validity of the subsequent marriage. SC: In this case, in as
much as there has been an impediment during the 5-year
cohabitation period and they contract the subsequent
marriage without the marriage license then the subsequent
marriage is null and void.
The second case of Manzano v. Sanchez, was a complete
departure from the decision in Nial. In this case, the SC said
that the fact of absence of legal impediment between the
parties must be present at the time of the marriage. So, the
absence of the legal impediment of the parties must only be
present at the time of the marriage. It need not be present
during the period of cohabitation. It is sufficient that at the
time of the solemnization of the subsequent marriage there is
no more impediment. The parties are therefore already
exempt from obtaining a marriage license.
In this case of Manzano the SC enumerated the requisites that
must concur in order that the provisions on the legal
ratification for marital cohabitation shall apply:
1. The man and woman must have been living together as
husband and wife for at least 5 years before the marriage;
2. The parties must have no legal impediment to marry each
other;
3. The fact of absence of legal impediments between the
parties of marriage;
4. The parties must execute an affidavit stating that they have
been together for at least 5 years;
5. The solemnizing officer must execute a sworn statement.
Remember that the Manzano vs. Sanchez case is now the
interpretation of Article 34 of the FC. The Nial vs. Badayog
decision applies to marriages celebrated when the Civil Code
was still in effect. Thats the difference between the two.
The doctrine laid down in Nial vs. Badayog will not be
true if the subsequent marriage was contracted when the
Family Code was already in effect. Instead, you apply the
decision laid down in Manzano vs. Sanchez where it has
already been liberally construed by the SC. The impediment
must be absent at the time of the solemnization.

(2) Those solemnized by any person not legally authorized to

perform marriages unless such marriages were contracted
with either or both parties believing in good faith that the
solemnizing officer had the legal authority to do so;
In our discussion in our Article 7, I said that belief in good faith
will only apply to priests, ministers, imams, or rabbis who did not
obtain license from the Civil Registrar General in order for them to
solemnize marriages.
This will only be valid if good faith refers only to those
persons. It will not apply if good faith is applied to a lawyer who
solemnize a marriage in the Philippines because lawyers are not
allowed to conduct marriages nor the justice of Court of Tax
Appeals. The Court of Tax Appeals performs a quasi-judicial
function. It is not a court.
(3) Those solemnized without a license, except those covered the
preceding Chapter;
The third is those solemnized without a marriage license,
subject to the exception we discussed marriages in articulo
mortis, remote places. In fact, in both cases, marriages in articulo
mortis and parties residing in remote places, there is no obligation
on the part of the solemnizing officer to execute an affidavit
administered by the Local Civil Registrar on persons authorized to
solemnize or administer oath as long as there is legal capacity on
the parties as well as the absence of legal impediment.
Another one would be living as husband and wife for 5
consecutive years. Under the Family Code, it is sufficient that
impediment is absent during the celebration of marriage in order
for them to be exempted from obtaining a marriage license.
Likewise, Muslims as well as other members of the ethnic
communities are also exempted from obtaining a marriage license
provided that the marriage must be in accordance with its
customs, rites and practices.
(4) Those bigamous or polygamous marriages not falling under
Article 41;
Article 41 refers to a spouse present contracting a subsequent
marriage with the spouse present obtaining a judicial declaration
of presumptive death after an absence of 4 years on the part of
the absentee spouse or 2 years if the absentee spouse disappears
under the circumstances where there is danger of death as
provided under Article 391 of the Civil Code.

June 18
ARTICLE 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.
You have no questions on Article 34? So, you must know
when to apply the decision of the Nial vs. Badayog case and
the Manzano vs. Sanchez case.
Let us go to VOID MARRIAGES.
The first of which is found in Article 35.
ARTICLE 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;

(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.
Although, under the new rule on filing of annulment for
declaration of nullity of marriage, the party who has obtained a
declaration of nullity of annulment, before he or she will be given a
certificate of finality of the decree of annulment, has to comply
with the requirements under Article 52 before he will be allowed to
do that.
With that, perhaps, there would be no more void marriages
falling under Article 53.
ARTICLE 36.
A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall
likewise be void even if such incapacity becomes manifest only
after its solemnization. (As amended by Sec. 2, E.O. No. 227, July
17, 1987)
Other kind of void marriage is when one or both parties to a
marriage are psychologically incapacitated to comply with his or
her essential marital obligations of marriage. The psychological
incapacity must be present at the time of the celebration ante-

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dating the marriage although the overt manifestations would
be present at the time or during the marriage.
It is void because of the absence of the knowledge of one
of the parties with respect to the essential marital obligations
of marriage, the refusal to comply with the essential marital
obligations of marriage. But consent is present. He freely
entered into the marriage but he cannot comply with the
essential marital obligations of marriage.
This is based on Canon 1025 of the Canon Law of the
Catholic Church.
Prior to the Santos case, there were several instances
enumerated what would constitute psychological incapacity.
However, the Santos vs. CA case came.
SANTOS vs. CA (Jan. 4, 1995)
If you remember, this is about Leouel Santos married to a
nurse. They had a child. Then, the wife decided to go to the
United States and failed to communicate with the husband.
The husband decided to locate the wife and he went to the
United States. Despite of that, he was unable to find his wife.
So, he returned to the Philippines and filed a petition for
declaration of nullity of marriage on the ground of
psychological incapacity on the part of the wife.
There was a thorough discussion that was made by the
Supreme Court. At any rate, they now have this definition on
what constitutes psychological incapacity.
In the Santos case, the Supreme Court said that
PSYCHOLOGICAL INCAPACITY should refer to no less than
mental (not physical) incapacity that causes a party to be
truly incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the
parties to the marriage which, as expressed by Article 68 of
the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help
and support.
Moreover, the psychological incapacity must be
characterized by gravity. The party must be incapable of
carrying out of the duties required in marriage as stated in
Article 68.
Second, juridical antecedence. It must be rooted in the
history of the party antedating the marriage, although the
overt manifestations emerge only after or during the
marriage.
The third characteristic is incurability or even if it were
otherwise, the cure would be beyond the means of the parties
involved.
These are the 3 characteristics that must always be
present in order for one to be considered as psychologically
incapacitated.
According to the Supreme Court in the case of Santos vs.
CA, the intendment of law is to confine the meaning of
psychological incapacity to the most serious cases of
personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to
the marriage.
In the case of Santos, it was not granted by the Supreme
Court. It denied the petition filed by Leouel because he failed
to prove the standards required based on the 3
characteristics. Moreover, marriage is a lifetime commitment
not an adventure.
That is the Santos case.
After that was the very well-known case of:
CHI MING TSOI vs. CA (266 SCRA 325)
The Supreme Court decided in the Chi Ming Tsoi case
decided that the husband is psychologically incapacitated
because despite the motivations made by the wife, it is the
wife who motivated the husband, the husband still refused to
have sexual intercourse with his wife. It was already 10
months after they were married, and nothing happened!

So, the wife filed a petition for declaration of nullity marriage

based on Article 36.
The defense of the husband was that he was not
psychologically incapacitated. Actually, it was my wife who has a
problem. Whenever I would try to have sexual intercourse with
her, she would cry in pain.
But, the truth is there is problem on the size. The weapon is
only a weapon :o
According to the Supreme Court which granted the petition in
this case, one of the essential marital obligations of marriage is to
procreate children based on the universal principle that
procreation of children through sexual cooperation is the basic end
of marriage.
In the case at bar, the evasions and senseless refusal of one
of the parties to fulfill the marital obligation is equivalent to
psychological incapacity.
It further said that an ungiven self is an unfulfilled self.
We have the case of:
REPUBLIC vs. CA, MOLINA (Feb. 13, 1997)
This is commonly known as the Molina case.
In the Molina case, the Supreme Court now enumerated or
laid down the guidelines in the application of Article 36.
What are those guidelines?
First, the root cause of the psychological incapacity must be
clinically or clinically identified. Take note of the word must be.
And the root cause must be alleged in the complaint.
Third, sufficiently proven by experts and clearly explained in
the decision.
That is the Molina guidelines, which was later on used by the
Supreme Court as yardstick in arriving at a decision if a case is
filed involving petition for declaration of nullity of marriage under
Article 36.
In the case of Republic vs. CA, Molina, the Supreme Court
denied the petition for declaration of nullity of marriage on the
ground of psychological incapacity because what the parties are
merely experiencing are mere difficulties because the cannot
agree.
According to the Supreme Court, it fell short of the meaning of
what constitutes psychological incapacity. What is only present in
the parties is their mere refusal to comply with their supposed
obligations as husband and wife, like the cooking, cleaning. That
is not included in the essential marital obligations of marriage, as
well as difficulties in adjusting to each other. So, that was denied.
What was clearly laid down by the Supreme Court in the
Molina case would be the guidelines in order for ones petition for
the declaration of nullity of marriage to prosper.
REPUBLIC vs. CA, MOLINA
FACTS: Reynaldo and Roridel got married in 1985. After a year of
marriage,
Reynaldo
showed
signs
of
immaturity
and
irresponsibility as husband father. He spent more time with his
friends with whom he squandered his money and depend on his
parent for assistance. He was also not hones with his wife with
regard to their finances.
Reynaldo was relieved from his job. Roridel became the sole
breadwinner. Later on, Roridel resigned from her job and went to
live in Baguio with her parents. Reynaldo then left Roridel and
their child and since then abandoned them.
Roridel filed a petition for declaration of nullity of marriage to
Reynaldo. The trial court declared the marriage void. CA denied
the appeal of the Republic.
ISSUE:
Whether or not
psychological incapacity

opposing

personalities

constitute

HELD: NO. In the present case, there is no clear showing to us

that the psychological defect spoken of is an incapacity. It appears
to us to be more of a "difficulty," if not outright "refusal" or
"neglect" in the performance of some marital obligations. Mere
showing
of
"irreconcilable
differences"
and
"conflicting

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personalities" in no wise constitutes psychological incapacity.
It is not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential
that they must be shown to be incapable of doing so, due to
some psychological (not physical) illness.
The evidence adduced by respondent merely showed that
she and her husband could not get along with each other.
There had been no showing of the gravity of the problem;
neither its juridical antecedence nor its incurability. The expert
testimony of Dr. Sison showed no incurable psychiatric
disorder but only incompatibility, not psychological incapacity.
From their submissions and the Court's own deliberations,
the following guidelines in the interpretation and application
of Art. 36 of the Family Code are hereby handed down for the
guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor
of the existence and continuation of the marriage and against
its dissolution and nullity.
(2) The root cause of the psychological incapacity must be
(a) medically or clinically identified,
(b) alleged in the complaint,
(c) sufficiently proven by experts and
(d) clearly explained in the decision.
(3) The incapacity must be proven to be existing at the time
of the celebration of the marriage.
(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable.
(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage.
(6) The essential marital obligations must be those embraced
by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children.
(7)
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.
(8) The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
state.
Hence, the marriage of Roridel to Reynaldo subsists and
remains valid.
Subsequent to that is the case of:
MARCOS vs. MARCOS (343 SCRA 755)
In the case of Marcos vs. Marcos, the Supreme Court
tempered the Molina guidelines. According to the Supreme
Court, it is not necessary that you present an expert like a
psychologist or a doctor. It is sufficient that the totality of
evidence could prove that indeed the respondent is
psychologically incapacitated to comply with the essential
marital obligations of marriage.
Here, the personal or medical or psychological
examination of the respondent is not a requirement. The
totality of evidence would be sufficient.
It went to back to the basic requirements therein
mandated by the court in the case of Santos, namely, gravity,
juridical antecedence and incurability.
According to the Supreme Court, the foregoing guidelines
do not require that a physician examine the person to be
declared psychologically incapacitated.
It now says, the root cause MAY BE, because in the
Molina guideline, it states MUST BE. So, now it states, may
be medically or clinically identified.
Again, it defined what constitutes psychological
incapacity as defined in the case of Santos vs. CA.
In this case, the Supreme Court denied the petition
because the husband merely became violent when he could
not find a job because both of them were members of the

PSG. When Marcos stepped down, the husband decided to resign

from the PSG. The wife did not. So, he tried to find a job but he
could not find a job. He tried to enter into a business, but the
business failed.
So, it was now the wife who became the
breadwinner of the family.
With that, his ego was bruised and it led to frequent quarrels
to the point of inflicting physical injuries to the wife.
According to the Supreme Court, the physical abuse and the
abandonment do not lead to the conclusion that he is
psychologically incapacitated because his behavior is attributed to
the fact that he is unemployed and that he has no job for the last
6 years.
In the case of:
HERNANDEZ vs CA (Dec. 8, 1999)
The ground for the petition was the husband was
psychologically incapacitated because of his habitual alcoholism,
sexual infidelity or perversion, abandonment and immaturity.
Here, if you remember, the teacher married the student. The
student is the man. After the marriage, the wife tried to help the
husband. It was the wife who tried to look for a job for the
husband but he did not stay long in the job. He resigned. The
wife provided the husband with a jeep. The husband sold their
jeep. Moreover, he had several extra-marital affairs. In fact, in
one of those extra-marital affairs, she was afflicted with sexuallytransmissible disease.
So, no permanency of job. Moreover, the husband said that
he does not have to work because he is very guwapo, a sign of
immaturity.
The Supreme Court said in the case of Hernandez said that
the petitioner failed to establish the fact that at the time they were
married, the respondent was suffering from a psychological defect
which in fact deprived him of the ability to assume the essential
duties of marriage and its concomitant responsibilities.
Habitual alcoholism, sexual infidelity or perversion and
abandonment do not by themselves constitute grounds for finding
that he is suffering from psychological incapacity within the
contemplation of the Family Code.
It must be shown that these acts are manifestations of a
disordered personality which make him completely unable to
discharge the essential obligations of the marital state, and not
merely due to private respondents youth and self-conscious
feeling of being handsome.
If this Mrs. Hernandez case is supposed to prosper, according
to the Supreme Court, she should have presented expert
testimony to establish the precise cause of the alleged
psychological incapacity of the spouse, if any, in order to show
that at the time of the marriage that he was already inflicted.
The case of:
BARCELONA vs. CA (Sept. 24, 2003)
In this case, the husband filed a petition for the declaration of
the nullity of marriage on the ground that the wife is
psychologically incapacitated.
The wife here is actually the daughter of well-off family. So,
the wife does not know any chores involving the maintenance of
the household. And then, in one of her pregnancies, the wife told
the husband that I do not want to see your face. You leave the
house. The husband said Why should I? I would sleep another
room if you do not want to see me. No, you must leave. I do not
want to see you in the house. So, the poor husband has to leave
the house.
Ultimately, that led to the separation of the spouses. The
husband now filed a petition for declaration of nullity of marriage
on the ground of the wifes alleged psychological incapacity. The
wife moved for the dismissal of the complaint on the ground that
the husband failed to comply with the guidelines laid down in the
Molina case. Remember the guidelines in order for the petition to
prosper?
So, according to her, there was no reference whatsoever of
the grave nature of her illness as to bring about her disability to

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Karla Deles & Jazzie Sarona

assume the essential marital obligations of marriage.
Moreover, the petition also failed to state what are those
essential marital obligations of marriage that she failed to
comply.
If we go back to Molina, the Supreme Court enumerated
those essential marital obligations of marriage that must be
complied with. Aside from that, the obligation of the spouse
as a parent. So, not only Article 68, we also have Articles 70,
71, 220, 221 and 225. Those are, according to the Supreme
Court, the essential marital obligations of marriage.
The Supreme Court in that case said that under the new
rule on filing for petition of nullity of marriage as well as
annulment, according to the Supreme Court, the petition can
prosper because under the new rule, expert opinion need not
be alleged.
Therefore, there is also no need to allege the root cause
of the psychological incapacity. What can only be done is to
present the expert during the trial. Only experts in the fields
of neurological and behavioral sciences are competent to
determine the root cause of psychological incapacity.
Inasmuch that the new Rules do not require the petition
to allege expert opinion on the psychological incapacity, then
there is also no need to allege in the petition the root cause of
the psychological incapacity. You just present your expert
during the trial.

In the case of:

DEDEL vs. CA (Jan. 29, 2004)

There was already a psychiatrist who said that the wife is
incapable of complying with the essential marital obligations
of marriage. And yet, the Supreme Court denied the petition.
In the case of Dedel vs. CA, Sharon had several extramarital affairs, the last one of which was with a Jordanian
where they have 2 children. When the Jordanian went to
Jordan, returned to his country, Sharon went with the man,
leaving behind her husband and the children. From time to
time, she would return to the Philippines to visit the husband
and the children.
When the husband could no longer take it, of course, he
filed for a petition for declaration of nullity of marriage on the
ground that Sharon is psychologically incapacitated and
during the trial presented a doctor.
The doctor affirmed that Sharon was once confined in a
hospital for treatment by a clinical psychiatrist and that
Sharon was suffering from Anti-Social Personality Disorder
exhibited by her blatant display of infidelity and her absence
of remorse for what she had done.
That anti-social
personality disorder of Sharon amounts to psychological
incapacity to perform the essential marital obligations of
marriage.
The Supreme Court said that Sharons sexual infidelity
can hardly qualify as being mentally or psychically ill to such
an extent that she could not have known the obligations she
was assuming, or knowing them, could not have given a valid
assumption thereof. It appears that Sharons promiscuity did
not exist prior to or at the inception of the marriage.
Her sexual infidelity or perversion and abandonment do
not by themselves constitute psychological incapacity within
the contemplation of the Family Code. Neither could her
emotional immaturity and irresponsibility be equated with
psychological incapacity. At most, these are manifestations of
a disordered personality.
So, the petition is denied.
While the Supreme Court sympathized (?) with the
husbands situation, but it cannot grant the petition.
There is this case of:
TENEBRO vs. CA (Feb. 18, 2004)

The issue here is what is the effect of the judicial declaration

nullity of a second or subsequent marriage on the individuals
criminal liability for bigamy.
In this case, the husband married 3 times. When he left the
second wife, he told the second wife actually, I am already
married. I am married to Leticia. I am leaving you because I am
going back to her.1
Instead of going back to the first wife, he contracted a third
marriage. He was sued for bigamy.
He filed a petition for declaration of nullity of marriage of the
second wifes psychological incapacity. The petition was granted,
declaring the second wife psychologically incapacitated and the
marriage void. Take note that the marriage is void from the very
beginning if it is based on psychological incapacity. So sabi niya,
I no longer have any criminal liability because the nullity of the
marriage retroacts to the date of the celebration of the marriage,
not at the time of the decision that was rendered. Is he correct?
A declaration of the nullity of the second marriage on the
ground of psychological incapacity is of absolutely no moment
insofar as the States penal laws are concerned.
Although the judicial declaration of the nullity of a marriage
on the ground of psychological incapacity retroacts to the date of
the celebration of the marriage insofar as the vinculum between
the spouses is concerned, it is significant to note that said
marriage is not without legal effects. Among these effects is that
children conceived or born before the judgment are considered
legitimate. There is therefore a recognition written into the law
itself that such a marriage, although void ab initio, may still
produce legal consequences. Among these legal consequences is
incurring criminal liability for bigamy. To hold otherwise would
render the States penal laws on bigamy completely nugatory, and
allow individuals to deliberately ensure that each marital contract
be flawed in some manner, and to thus escape the consequences
of contracting multiple marriages, while beguiling throngs of
hapless women with the promise of futurity and commitment.
That is the case of Tenebro vs. CA. So, it is immaterial that
the marriage is declared void by reason of psychological
incapacity of one of the spouses.
In the case of:
REPUBLIC vs. HAMANO (May 20, 2004)
The Court of Appeals here ruled that the guidelines laid down
in Molina should not be strictly observed because the respondent
is not a Filipino citizen. It should be relaxed.
Here, the woman is married to a Japanese.
After the
marriage, the husband returned back to Japan. They had one
child. The husband promised to send support. He sent money
once to the wife. After that, there was silence.
And then, she learned from friends that the husband is
actually in the Philippines but did not bother to see her. Despite
efforts to contact the husband, she was not able to do so. So, she
now filed this case.
It went to the appellate court because it was granted.
According to the appellate court, the Molina guidelines should not
be applied strictly inasmuch as anyway, the respondent is a
foreigner.
Here, the Supreme Court said that 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 norms used for determining psychological
incapacity should apply to any person regardless of nationality.
The petition to be denied because, according to the Supreme
Court, aside from the fact that the totality of evidence presented
fell short of proving that the Japanese husband was
psychologically incapacitated, Lolita (the wife) also failed to
present an expert that would have helped her claim. She present

Actually, Leticia is the name of the second wife. The first wife is Hilda. Leticia
was the one who filed the bigamy charge against Tenebro.

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to present evidence that medically or clinically would identify
the psychological incapacity of the husband.
In the case of:
ANTONIO vs. REYES (March 10, 2006)
According to the Supreme Court, all the guidelines in the
Molina case have been satisfied. Moreover, simultaneous to
the filing of the petition for declaration of nullity of marriage
on the ground that the wife is psychologically incapacitated is
also a petition for annulment of marriage filed before the
Metropolitan Tribunal of Archdiocese of Manila.
Barely after 4 years after the marriage, the husband filed
a petition for the declaration of nullity of his marriage to Marie
Ivonne.
According to him, the wife is psychologically
incapacitated. She would make stories about her life, lie
about herself, her people, her occupation, her income, her
educational attainment and other events or things. She said
that she is a singer and that she has records with BMG
Records, that she received a plaque of recognition from BMG 2,
that her friends included yung mga sikat. And she would write
messages to herself. She said that she is a psychologist and
teaching at the St. Josephs Academy 3. When the husband
mentioned that there was this co-employee who asked from
him a bar of chocolate, she called up the co-employee of the
husband and inquired from her why did you ask a chocolate
bar from my husband?. And she would buy furniture and say
I bought this from a very sikat na store, like Ikea but she
actually bought it from Divisoria. So, that was the world of
Marie Ivonne.
To support the petition of the husband, he presented a
psychiatrist as well as a clinical psychologist. So, both the
psychiatrist and the psychologist testified that respondents
constant lying was abnormal or pathological. It undermined
the basic relationship that should be based on love, trust and
respect. Her respondents extreme jealousy was also
pathological. It reached the point of paranoia since there was
no actual basis for her to suspect that petitioner was having
an affair with another woman.
So, she lived in her own world. She has this fantastic
ability to invent and fabricate stories and personalities to
enable her to live in a world of make-believe.
But the petition of the husband, Leonilo, was denied. It
went to the Court of Appeals and it was denied. During the
pendency of the appeal, the Metropolitan Tribunal of the
Archdiocese of Manila granted Leonilos petition for
annulment, again, based on psychological incapacity.
Under the Catholic law, the psychological incapacity is a
ground for annulment. The petition was granted by the
Metropolitan Tribunal. It went to the parang appellate court,
the National Appellate Matrimonial Tribunal which affirmed the
decision of the Metropolitan Tribunal with certain
modifications. It went to Rome, the Roman Rota (of the
Vatican), which again affirmed the decision that was rendered
by the National Appellate Matrimonial Tribunal.
But despite that, the appellate court denied the petition.
So, it went to the Supreme Court. If I were you, you read
because it is a very long decision because it says all the
guidelines in the Molina case had been satisfied. You read it
because it is a very interesting story.
ANTONIO vs. REYES (March 10, 2006)
ADDITIONAL FACTS:
The trial court gave credence to
petitioners evidence and declared the marriage between
petitioner and respondent null and void.
Shortly before the trial court rendered its decision, the
Metropolitan Tribunal of the Archdiocese of Manila annulled
the Catholic marriage of the parties, on the ground of lack of
due discretion on the part of the parties.
2
3

Actually, Blackgold Recording Company

Actually, Pasig Catholic School

During the pendency of the appeal before the Court of

Appeals, the Metropolitan Tribunals ruling was affirmed with
modification by both the National Appellate Matrimonial Tribunal,
which held instead that only respondent was impaired by a lack of
due discretion. Subsequently, the decision of the National
Appellate Matrimonial Tribunal was upheld by the Roman Rota of
the Vatican.
Nevertheless, the appellate court reversed the RTCs
judgment. CA held that the totality of the evidence presented was
insufficient to establish respondents psychological incapacity. It
declared that the requirements in the case of Republic v. Court of
Appeals (Molina case) governing the application and interpretation
of psychological incapacity had not been satisfied.
ISSUE: Whether or not the state of facts as presented by
petitioner sufficiently meets the standards set for the declaration
of nullity of a marriage under Article 36 of the Family Code
HELD: YES, the present case sufficiently satisfies the guidelines in
Molina.
The preference of the revision committee was for the judge
to interpret the provision on a case-to-case basis, guided by
experience, in the findings of experts and researchers in
psychological disciplines, and by decisions
of
church
tribunals which, although not binding on the civil courts,
may be given persuasive effect since the provision was taken from
Canon Law.
Molina has proven indubitably useful in providing a unitary
framework that guides courts in adjudicating petitions for
declaration of nullity under Article 36. At the same time, the
Molina guidelines are not set in stone, the clear legislative intent
mandating a case-to-case perception of each situation, and Molina
itself arising from this evolutionary understanding of Article 36.
It would be disingenuous to disregard the influence of Catholic
Church doctrine in the formulation and subsequent understanding
of Article 36, and the Court has expressly acknowledged that
interpretations given by the National Appellate Matrimonial
Tribunal of the local Church, while not controlling or decisive,
should be given great respect by our courts. Still, it must be
emphasized that the Catholic Church is hardly the sole source of
influence in the interpretation of Article 36. Even though the
concept may have been derived from canon law, its incorporation
into the Family Code and subsequent judicial interpretation
occurred in wholly secular progression. Indeed, while Church
thought on psychological incapacity is merely persuasive on the
trial courts, judicial decisions of this Court interpreting
psychological incapacity are binding on lower courts.
In this case, petitioner presented witnesses who corroborated
his allegations on his wifes behavior.
The root cause of
respondents psychological incapacity has been medically or
clinically identified, alleged in the complaint, sufficiently proven by
experts, and clearly explained in the trial courts decision.
The personal examination of the subject by the physician is
not required for the spouse to be declared psychologically
incapacitated. The methodology utilized by petitioners witnesses
as sufficient basis for their medical conclusions.
Respondents psychological incapacity was established to
have clearly existed at the time of and even before the celebration
of marriage. She fabricated friends and made up letters from
fictitious characters well before she married petitioner.
The
gravity of respondents psychological incapacity is sufficient to
prove her disability to assume the essential obligations of
marriage.
CA somehow concluded that since respondent allegedly tried
her best to effect a reconciliation, she had amply exhibited her
ability to perform her marital obligations. The SC is not convinced.
Given the nature of her psychological condition, her willingness to
remain in the marriage hardly banishes nay extenuates her lack of
capacity to fulfill the essential marital obligations. Respondents
ability to even comprehend what the essential marital obligations
are is impaired at best. The misrepresentations of respondent

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point to her own inadequacy to cope with her marital
obligations, kindred to psychological incapacity under Article
36.
Respondent is evidently unable to comply with the
essential marital obligations as embraced by Articles 68 to 71
of the Family Code. The CA clearly erred when it failed to take
into consideration the fact that the marriage of the parties
was annulled by the Catholic Church.
Such deliberate
ignorance is in contravention of Molina, which held that
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.
From the totality of the evidence, the SC is sufficiently
convinced that the incurability of respondents psychological
incapacity has been established by the petitioner. Any
lingering doubts are further dispelled by the fact that the
Catholic Church tribunals, which indubitably consider
incurability as an integral requisite of psychological
incapacity, were sufficiently convinced that respondent was so
incapacitated to contract marriage to the degree that
annulment was warranted.
Petitioner has established his cause of action for
declaration of nullity under Article 36 of the Family Code. The
RTC correctly ruled, and the Court of Appeals erred in
reversing the trial court.
Of course, you have heard of Amy Perez:
PEREZ-FERRARIS vs. FERRARIS (July 17, 2006)
You remember that her petition for declaration of nullity
of marriage on the ground of psychological incapacity was
denied, isnt it? Why was it denied?
Because, according to the Supreme Court, while she
presented a doctor to testify on the alleged psychological
incapacity of the husband, the information were all given by
the petitioner herself. So, hearsay siya because in fact it was
given by Amy (Ma. Armida) Perez.
The testimony given by the doctor were actually given by
Amy Perez. That cannot be taken against the respondent.
Moreover, it all started when Amy Perez became
suspicious of the calls that were made to the husbands
cellphone. Sino yan? Sino yan? She became jealous of those
phone calls. And they would now be quarrelling. And that
was the start when the husband would retreat to his shell and
avoid confrontation with the wife. Later, when he could not
longer take the dadadadada of the wife, he would leave the
house.
So, according to the Supreme Court, that leaving-thehouse attitude, violent tendencies, sexual infidelity,
abandonment and lack of support are not rooted on some
debilitating psychological condition but a mere refusal or
unwillingness to assume the essential obligations of marriage.
And, as Ive said, the facts were all supplied by the
petitioner herself.
So, it cannot be taken against the
respondent.
PEREZ-FERRARIS vs. FERRARIS (July 17, 2006)
ADDITIONAL FACTS: RTC denied the petition for declaration
of nullity of petitioners marriage with Brix. The trial court
noted that suffering from epilepsy does not amount to
psychological incapacity under Article 36 of the Civil Code and
the evidence on record were insufficient to prove infidelity.
On MFR, The trial court reiterated that there was no evidence
that respondent is mentally or physically ill to such an extent
that he could not have known the obligations he was
assuming, or knowing them, could not have given valid
assumption thereof.
CA affirmed the judgment of the trial court. It held that
the evidence on record did not convincingly establish that
respondent was suffering from psychological incapacity or

that his defects were incurable and already present at the

inception of the marriage. CA also found that Dr. Dayans
testimony failed to establish the substance of respondents
psychological incapacity; that she failed to explain how she arrived
at the conclusion that the respondent has a mixed personality
disorder; that she failed to clearly demonstrate that there was a
natal or supervening disabling factor or an adverse integral
element in respondents character that effectively incapacitated
him from accepting and complying with the essential marital
obligations.
HELD: The Court relies heavily on psychological experts for its
understanding of the human personality. However, the root cause
must be identified as a psychological illness and its incapacitating
nature must be fully explained, which petitioner failed to
convincingly demonstrate. There is absolutely no showing that his
defects were already present at the inception of the marriage, or
that those are incurable.
By petitioners own reckoning, respondent was a responsible
and loving husband. Their problems began when petitioner started
doubting respondents fidelity. It was only when they started
fighting about the calls from women that respondent began to
withdraw into his shell and corner, and failed to perform his socalled marital obligations. Respondent could not understand
petitioners lack of trust in him and her constant naggings. He
thought her suspicions irrational. Respondent could not relate to
her anger, temper and jealousy.
Dr. Dayan did not explain how she arrived at her diagnosis
that respondent has a mixed personality disorder called schizoid,
and why he is the dependent and avoidant type. Her statement
seems to belong to the realm of theoretical speculation. Also, Dr.
Dayans information that respondent had extramarital affairs was
supplied by the petitioner herself. Notably, when asked as to the
root cause of respondents alleged psychological incapacity, Dr.
Dayans answer was vague, evasive and inconclusive. Petitioner
likewise failed to prove that respondents supposed psychological
or mental malady existed even before the marriage. All these
omissions must be held up against petitioner, for the reason that
upon her devolved the onus of establishing nullity of the marriage.
Indeed, any doubt should be resolved in favor of the validity of the
marriage and the indissolubility of the marital vinculum.
Respondents alleged mixed personality disorder, the
leaving-the-house attitude whenever they quarreled, the violent
tendencies during epileptic attacks, the sexual infidelity, the
abandonment and lack of support, and his preference to spend
more time with his band mates than his family, are not rooted on
some debilitating psychological condition but a mere refusal or
unwillingness to assume the essential obligations of marriage. It is
not enough to prove that the parties failed to meet their
responsibilities and duties as married persons; it is essential that
they must be shown to be incapable of doing so, due to some
psychological, not physical, illness.
Petition denied with finality.
Now, there were some cases decided sometime in February
2007: ZAMORA vs. CA (Feb. 7, 2007) and REPUBLIC vs.
TANYAG-SAN JOSE (Feb. 28, 2007).
ZAMORA vs. CA (Feb. 7, 2007)
FACTS: Bernardo and Norma were married in 1970. The union
did not produce a child. In 1972, Norma left for the US to work as
a nurse. She made periodic visits to Cebu until 1989, when she
was already a US citizen.
Bernardo filed a complaint for declaration of nullity of
marriage anchored on the alleged psychological incapacity of
Norma. He alleged that his wife was horrified by the mere
thought of having children as evidenced by the fact that she had
not borne petitioner a child.
He also alleged that Norma
abandoned him by living in the US and had in fact become an
American citizen; and that throughout their marriage they lived
together for not more than 3 years.

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Karla Deles & Jazzie Sarona

Norma denied denied that she refused to have a child.
She portrayed herself as one who loves children as she is a
nurse by profession and that she would from time to time
borrow her husbands niece and nephews to care for them.
She also faulted her husband for the breakup of their
marriage, alleging that he had been unfaithful to her. He
allegedly had 2 affairs with different women, and he begot at
least 3 children with them.
The trial court dismissed the complaint since nothing in
the evidence shows that Norma suffered from any
psychological incapacity or that she failed to comply with her
essential marital obligations. CA affirmed the ruling of the
trial court.
ISSUE: Whether or not there can be a declaration of nullity of
the marriage between Bernardo and Norma on the ground of
psychological incapacity.
HELD:
It is true that the case of Santos v. CA did not specifically
mention that the presentation of expert opinion is a vital and
mandatory requirement in filing a petition for the declaration
of nullity of marriage grounded on psychological incapacity
referred to under Article 36 of the Family Code. Even in the
subsequent case of Republic v. Court of Appeals (Molina case),
wherein the Court laid down the guidelines in the
interpretation and application of the aforementioned article,
examination of the person by a physician in order for the
former to be declared psychologically incapacitated was
likewise not considered a requirement. What is important,
however, as stated in Marcos v. Marcos, is the presence of
evidence that can adequately establish the partys
psychological condition. If the totality of evidence presented is
enough to sustain a finding of psychological incapacity, then
actual medical examination of the person concerned need not
be resorted to.
Likewise, the Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable Marriages, which
took effect on March 15, 2003, states:
(d) What to allege. A petition under Article 36 of the
Family Code shall specifically allege the complete facts
showing that
either or both parties were psychologically
incapacitated from
complying
with
the
essential
marital obligations of marriage at the
time
of
the
celebration of marriage even if such incapacity
becomes manifest only after its celebration.
The complete facts should allege the physical
manifestations, if any, as are indicative of psychological
incapacity at the time of the celebration of the marriage but
expert opinion need not be
alleged.
The rule is that the facts alleged in the petition and the
evidence presented, considered in totality, should be
sufficient to convince the court of the psychological incapacity
of the party concerned. Petitioner, however, failed to
substantiate his allegation that private respondent is
psychologically incapacitated. His allegations relating to her
refusal to cohabit with him and to bear a child was strongly
disputed, as the records undeniably bear out. Furthermore,
the acts and behavior of private respondent that petitioner
cited occurred during the marriage, and there is no proof that
the former exhibited a similar predilection even before or at
the inception of the marriage.
Petition denied.
REPUBLIC vs. TANYAG-SAN JOSE (Feb. 28, 2007)
FACTS: Laila and Manolito were married in 1988. The couple
has 2 children. For 9 years, the couple stayed with Manolitos
parents. Manolito was jobless and was hooked to gambling
and drugs. As for Laila, she sold fish at the wet market.

In 1998, Laila left Manolito and transferred to her parents

house.
In 1999, Laila filed a Petition for Declaration of Nullity of
Marriage, under Article 36 of the Family Code on the ground of
psychological incapacity.
Dr. Tayag, a clinical psychologist at the National Center for
Mental Health, declared that from the psychological test and
clinical interview she conducted on Laila, she found Manolito,
whom she did not personally examine, to be psychologically
incapacitated to perform the duties of a husband.
RTC denied Lailas petition.
Petitioners portrayal of
respondent as jobless and irresponsible is not enough. Petitioners
case is not in any way enhanced by the psychological evaluation
and assessment done by psychologist Dr. Tayag. There is no
showing that Dr. Tayag was able to interview the respondent or
any of his relatives in order to arrive at the above conclusion.
Obviously, the data upon which the finding or conclusion was
based is inadequate.
The CA, finding Manolito psychologically incapacitated after
considering the totality of the evidence, reversed the decision of
the trial court and declared the marriage between him and Laila
void ab initio.
ISSUE: Whether or not it was proven that Manolitos alleged
defects are constitutive of psychological incapacity as
contemplated under Article 36 of the Family Code and that the
same has juridical antecedence, is grave and incurable
HELD: No, it was not proven.
Psychological incapacity, as a ground for nullity of marriage,
has been succinctly expounded in the recent case of Ma. Armida
Perez-Ferraris v. Brix Ferraris (Ferraris). The term psychological
incapacity to be a ground for the nullity of marriage under Article
36 of the Family Code, refers to a serious psychological illness
afflicting a party even before the celebration of the marriage. The
root cause must be identified as a psychological illness and its
incapacitating nature must be fully explained.
Dr. Tayags conclusion about Manolitos psychological
incapacity was based on the information supplied by Laila which
she found to be factual. Undoubtedly, the doctors conclusion is
hearsay. It is unscientific and unreliable.
Dr. Tayags Psychological Report does not even show that the
alleged anti-social personality disorder of Manolito was already
present at the inception of the marriage or that it is incurable.
Neither does it explain the incapacitating nature of the alleged
disorder nor identify its root cause. It merely states that such
disorder is considered to be grave and is deeply [immersed] within
the system and continues to influence the individual until the later
stage of life.
There is of course no requirement that the person sought to
be declared psychologically incapacitated should be personally
examined by a physician or psychologist as a condition sine qua
non to arrive at such declaration.
If it can be proven by
independent means that one is psychologically incapacitated,
there is no reason why the same should not be credited.
Habitual alcoholism, just like sexual infidelity or perversion
and abandonment, does not by itself constitute ground for
declaring a marriage void based on psychological incapacity.
Neither is emotional immaturity and irresponsibility. Or failure or
refusal to meet duties and responsibilities of a married man if it is
not shown to be due to some psychological (not physical) illness.
While Molina then is not set in stone, the facts and
circumstances attendant to this case do not warrant a deviation
from it.
In both cases, the Supreme Court merely reiterated the
decision rendered in Santos, Molina, Marcos as well as the Ferraris
cases.
So, you just go back to these cases. If I were you, you
memorize the Santos and Molina. Ano iyan siya? Although, do not
forget the Marcos vs. Marcos case because the Marcos vs. Marcos

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Karla Deles & Jazzie Sarona

case tempered the guidelines in the Molina case, where if you
do not present the expert, if the totality of evidence was
proved, then, that the respondent is psychologically
incapacitated can be granted by the court.
JUNE 23
There are a lot of other cases involving Article 36 on
psychological incapacity.
You will notice that the Supreme Court cannot really
decide whether there must be medical or clinical examination,
which was actually included in the Molina guidelines. There is
that flip-flopping of the Supreme Court on whether there must
be medical or clinical examination as to the fact alleged of
psychological incapacity.
There is this case involving a lawyer:
PARAS vs. PARAS (Aug. 2, 2007)
The lawyer is the husband. The wife filed a petition for
declaration of nullity of marriage on the ground of the alleged
psychological incapacity of the husband.
While the case pending, she filed an administrative case
against the husband for disbarment. In the administrative
proceeding, the husband was suspended from the practice of
law.
The allegation of the wife was that the wife went to the
US. What happened was that 2 of their children died. So,
because of what happened, they decided to go to the US for a
vacation. And they stayed in the house of her sister. For the
entire time they were there, the sister of the wife supported
them. The husband left the United States, leaving the wife
and the children.
When the wife went back to the Philippines, she found out
that the husband had already disposed of certain property
without her consent. According to her, her signature was
falsified.
The Supreme Court said that he falsified bank documents
and other related loan instruments. He was suspended for 6
months.
Another one here is suspension of 1 year from practice of
law because the husband has a daughter with his secretary.
Henceforth, there was abandonment when he left his wife and
his children in the United States.
The Court found that the husband is guilty of immorality
and abandonment.
The pending petition for declaration of nullity of marriage
on the ground of psychological incapacity was dismissed by
the court.
She now contends that if the conclusion that was arrived
by the Supreme Court in the administrative proceeding she
filed is not valid, she would not have proceed on her case for
petition for declaration of nullity of marriage because
according to her, he was found to be immoral, having an affair
and abandoned the family.
She contended that the Courts finding on the
administrative case is conclusive on the petition for
declaration of nullity of marriage based on Article 36.
The Supreme Court said that jurisprudence abounds that
administrative cases against lawyers belong to a class of their
own. They are distinct from and may proceed independently
of civil and criminal cases. The basic premise is that criminal
and civil cases are altogether different from administrative
matters, such that the disposition in the first two will not
inevitably govern the third and vice versa.
Acordingly, ones unfitness as a lawyer does not
automatically mean ones unfitness as a husband or vice
versa.
The yardsticks for such roles are simply different.
This is why the disposition in a disbarment case cannot be
conclusive on an action for declaration of nullity of marriage.
While the petition sufficiently proved the husbands unfitness
as a lawyer, however, they may not establish that he is

psychologically incapacitated to perform his duties as a husband.

In this case, the Supreme Court said that while it may be true
that in the Molina guidelines, there must be that medical or
psychological examination and it admits that it was relaxed in the
case of Marcos vs. Marcos, it went back to that requirement in the
case of Republic vs. Dagdag. It went back to that requirement
that it must be medically or clinically identified.
Later, it was relaxed in the Barcelona vs. CA, where it need
not be alleged in the complaint and may be proved by experts.
That was the position of the Supreme Court. It went back to the
relaxation of the rule on the need to medically or clinically identify.
In the case of Paras vs. Paras, it went back to the Marcos vs.
Marcos case. The totality of evidence presented must be sufficient
to prove that the husband was psychologically incapacitated.
It must be remember that in all cases involving psychological
incapacity, the Supreme Court always cites Santos, Molina and
Marcos.
Santos : The definition of psychological incapacity and the 3
requisites.
Molina : The guidelines which was used in the case of the
Supreme Court in the case Antonio vs. Reyes, where the Supreme
Court said where all the guidelines in the Molina had been satisfied
in Antonio vs. Reyes. This is about the wife who lived in a world of
her own.
Furthermore, the Supreme Court noted the fact that there was
already a declaration of the annulment of the marriage by the
Catholic Tribunal, which was affirmed by the Roman Ruta.
In the hand-out which I will give you later, I will include all the
other cases. But as I said, the Supreme Court will always cite
Santos, Molina and Marcos.
In Republic vs. Jose, which cited Ferraris vs. Ferraris, the
conclusion of the doctor that was presented by the petitioner was
purely based on the statement made by the wife that the husband
was psychologically incapacitated to comply with the obligations
of marriage because he did not do his job, he will always play
basketball, etc. As cited in the case of Ferraris vs. Ferraris, where
the allegation made by the wife is not sufficient to prove the
psychological incapacity. The finding or diagnose made by the
doctor is hearsay.
According to the Supreme Court, the totality of evidence must
prove that the husband is psychologically incapacitated. There is
no need to examine the alleged psychologically incapacitated
spouse by a psychiatrist or a doctor.
REPUBLIC vs. DAGDAG (351 SCRA 425)
FACTS: Erlinda married Avelino. They had 2 children. Avelino left
his family without explanation. He would leave for months and
would reappear for a few months. He would disappear again after
his reappearance.
When he is with his family, he would get drunk, force his wife
to have sex with him and if she refuses, he would inflict physical
injuries to her.
He left his family again. Erlinda was forced to look for a job as
a manicurist. She later learned that her husband was imprisoned
for a crime and that he escaped from jail.
Erlinda filed a petition for the declaration of nullity of her
marriage on the ground of psychological incapacity.
HELD: Whether or not psychological incapacity exists in a given
calling for annulment of a marriage depends crucially, more than
in any field of the law, on the facts of the case. No case is on all
fours with another case.
In Molina, the Court laid down the guidelines in the
interpretation and application of Article 36 of the Family Code.
In this case, Erlinda failed to comply with the evidentiary
requirements provided in the Molina guidelines. Erlinda failed to
comply with the guideline which requires that the root cause of
psychological incapacity must be medically or clinically identified

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Karla Deles & Jazzie Sarona

and sufficiently proven by experts since no psychiatrist or
medical doctor testified as to the alleged psychological
incapacity of her husband.
Further, the allegation that the husband is a fugitive from
justice was not sufficiently proven. The crime for which he
was arrested was not even alleged.
PARAS vs. PARAS (August 2, 2007)
FACTS: Rosa married Justo and they had 4 children. For the
1st 5 years of their marriage, Rosa was the one who spent for
all their family needs since Justo shouldered his sisters
schooling. 2 of their children died. To cope with the death of
the children, the entire family went to the United States. Her
sisters supported them throughout their two-year stay there.
However, after three months, Justo abandoned them and left
for the Philippines.
Upon her return to the Philippines, she was shocked to
find her Botica and other businesses heavy in debt. He
disposed without her consent a conjugal piece of land. His act
of maintaining a mistress and siring an illegitimate child
was the last straw that prompted her to file the present case
for annulment of her marriage with Justo, under Article 36 of
the Family Code.
RTC upheld the validity of the marriage. Justo appealed
to the CA. In the interim, Rosa filed with the Supreme Court a
petition for disbarment against Justo premised on on the same
charges alleged in her complaint for declaration of nullity of
marriage. The Supreme Court found him guilty. He was
respondent is hereby SUSPENDED from the practice of law for
6 MONTHS on the charge of falsifying his wifes signature in
bank documents and other related loan instruments; and for 1
YEAR from the practice of law on the charges of immorality
and abandonment of his own family, the penalties to be
served simultaneously.
After 2 months when the said decision was promulgated
by the Supreme Court, CA affirmed the RTC Decision holding
that the evidence falls short of the standards required by law
to decree a nullity of marriage. CA likewise held that Rosas
inability to offer the testimony of a psychologist is fatal to her
case, being in violation of the tenets laid down by this Court in
Molina.
Rosa contents that the Supreme Courts findings for
disbarment are conclusive on the present case. she argues
that she filed the instant complaint sometime in May, 1993,
well before this Courts pronouncement in Molina relied
upon by the CA. She states that she could have presented
an expert to prove the root cause of Justos psychological
incapacity had she been required to do so. For relief, she
prays that her marriage with Justo be annulled on the bases of
the Courts conclusive factual findings in the administrative
proceeding; or in the alternative, remand this case to the
court a quo for reception of expert testimony in the interest of
due process.
HELD: The petition is bereft of merit.
Rosas insistence that the factual findings in the
administrative proceeding be considered conclusive on the
present case is unmeritorious.
Jurisprudence abounds that administrative cases against
lawyers belong to a class of their own. They are distinct from
and may proceed independently of civil and criminal cases.
The basic premise is that criminal and civil cases are
altogether different from administrative matters, such
that the disposition in the first two will not inevitably
govern the third and vice versa. Disciplinary proceedings
against lawyers are sui generis. Neither purely civil nor
purely criminal, they do not involve a trial of an action or a
suit, but are rather investigations by the Court into the
conduct of one of its officers.

Accordingly, ones unfitness as a lawyer does not

automatically mean ones unfitness as a husband or vice versa.
The yardsticks for such roles are simply different. This is why the
disposition in a disbarment case cannot be conclusive on an action
for declaration of nullity of marriage.
While Rosas charges
sufficiently proved Justos unfitness as a lawyer, however, they
may not establish that he is psychologically incapacitated to
perform his duties as a husband.
The presentation of an expert witness to prove psychological
incapacity has its origin in Molina.
In the 2000 case of Marcos v. Marcos, the Court clarified that
the Molina Guideline does not require that the respondent should
be examined by a physician or psychologist as a condition sine
qua non for the declaration of the nullity of marriage. What is
important is the presence of evidence that can adequately
establish the partys psychological condition.
Interestingly, in the same year (2000) that Marcos was
decided, the Court backtracked a bit when it held in Republic v.
Dagdag that, the root cause of psychological incapacity
must be medically or clinically identified and sufficiently
proven by experts and this requirement was not deemed
complied with where no psychiatrist or medical doctor testified on
the alleged psychological incapacity of one party.
Significantly, the New Rules on Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages, 4
[45]
promulgated by this Court on March 15, 2003, geared
towards the relaxation of the requirement of expert opinion.
Section 2, paragraph (d) states:
(d) What to allege.- A petition under Article 36 of the Family
Code shall specifically allege the complete facts showing that
either or both parties were psychologically incapacitated from
complying with the essential marital obligations of marriage at the
time of the celebration of marriage even if such incapacity
becomes manifest only after its celebration.
The complete facts should allege the physical
manifestations, if any, as are indicative of psychological
incapacity at the time of the celebration of the marriage
but expert opinion need not be alleged.
In Barcelona v. Court of Appeals, this Court categorically
explained that under the New Rules, a petition for declaration of
nullity under Article 36 of the Family Code need not allege expert
opinion on the psychological incapacity or on its root cause. What
must be alleged are the physical manifestations indicative
of said incapacity. The Court further held that the New Rules,
being procedural in nature, apply to actions pending and
unresolved at the time of their adoption.
Later, in 2005, the Court reiterated the Marcos doctrine in
Republic v. Iyoy. A later case, Marcos v. Marcos, further
clarified that there is no requirement that the
defendant/respondent
spouse
should
be
personally
examined by a physician or psychologist as a condition
sine qua non for the declaration of nullity of marriage
based on psychological incapacity. Accordingly, it is no longer
necessary to allege expert opinion in a petition under Article 36 of
the Family Code of the Philippines. Such psychological incapacity,
however, must be established by the totality of the evidence
presented during the trial.
Significantly, the present case is exactly akin to Pesca v.
Pesca. In this case, the wife argued that Santos and Molina should
not have retroactive application, the Guidelines being merely
advisory and not mandatory in nature. The Court declined to
remand Pesca on the premise that the Santos and Molina
Guidelines constitute a part of the law as of the date the
statute is enacted, applying the doctrine of stare decisis.
Applying the foregoing cases, Marcos, Barcelona, Iyoy, and
Pesca, to the instant case, there is no reason to remand it to the
trial court. The records clearly show that there is sufficient
evidence to establish the psychological condition of Justo.

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Karla Deles & Jazzie Sarona

A review of the complaint, as well as the testimonial and
documentary evidence, shows that Rosas main grounds in
seeking the declaration of nullity of her marriage with Justo
are his infidelity, profligacy which includes the
falsification of her signature in one of the loan
documents, failure to support the children, and
abandonment of the family. Both the courts below found
the charges unsubstantiated and untrue. However, this Court,
in the administrative proceeding for disbarment, found the
evidence sufficient to support Rosas charges of sexual
infidelity, falsification of her signature, and abandonment of
family.
While this Court is convinced that the charges hurled
against Justo by Rosa, such as sexual infidelity,
falsification of her signature, abandonment and
inadequate support of children, are true, nonetheless,
there is nothing in the records showing that they were caused
by a psychological disorder on his part. In other words, the
totality of the evidence is not sufficient to show that Justo
is psychologically incapacitated to comply with the essential
marital obligations. There is no evidence that Justos
defects were present at the inception of the
marriage. His defects surfaced only in the latter years.
What is clear in this case is a husband who has gone
astray from the path of marriage because of a conflicting
relationship with his wife and her family and repeated lifes
setbacks. While these do not justify his sins, they are not
sufficient to establish that he is psychologically incapacitated.
Article 36 of the Family Code is not to be confused with a
divorce law that cuts the marital bond at the time the causes
thereof manifest themselves.
It refers to a serious
psychological illness afflicting a party even before the
celebration of the marriage. It is a malady so grave and so
permanent as to deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about to
assume.
(PS sorry mahaba .. ok kasi for me iyong gi-isa isa ng court
yung previous cases .. char lang =P)
We go now to Article 37, incestuous marriage.
ARTICLE 37.
Marriages between the following are
incestuous and void from the beginning, whether the
relationship between the parties be legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half
blood.
ARTICLE 38.
The following marriages shall be void from
the beginning for reasons of public policy:
(1) Between collateral blood relatives, whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and
the adopted child;
(6) Between the surviving spouse of the adopted child and
the adopter;
(7) Between an adopted child and a legitimate child of the
adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry
the other,
killed that other person's spouse or his or
her own spouse.

There is no prohibition between an adopted child and an

illegitimate child of the adopter because the law only prohibits
only between the adopted child and a legitimate child. There is no
prohibition when it comes to an adopted child and an illegitimate
child of the said adopter.
No. 9 there must be a final judgment stating that the killing
is motivated by the intention to marry. What is important here is
the final judgment that would show that the killing was motivated
by the intention to marry.
ARTICLE 39.
The action or defense for the declaration of
absolute nullity of a marriage shall not prescribe. (As amended by
R.A. No. 8533, Feb. 23, 1998)
Article 39 has been amended by RA 8533. So, there is no
more prescription. The action to file a petition for the declaration
of absolute nullity of marriage shall no longer prescribe.
ARTICLE 40.
The absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a final
judgment declaring such previous marriage void.
Before one can contract a marriage, where he had a previous
marriage but such previous marriage was void, under Article 40,
there is a need to have that that previous void marriage declared
void by the court.
Unlike that in the Civil Code provision, where there is no
necessity of having the previous marriage declared void, under the
Family Code, there is already that requirement.
Remember that case of ATIENZA vs. BRILLANTES. The
defense that was put up by the judge was that the previous
marriage was celebrated when the Civil Code was in effect and
that inasmuch that it was under the Civil Code, there is no need to
obtain a declaration of nullity of a void marriage.
The Supreme Court said that the subsequent marriage was
celebrated when the Family Code was already effective. And
therefore, Article 40 of the Family Code is a rule of procedure. It
can be given a retroactive effect and since it is not being shown
that the right of the judge would be prejudiced by giving it
retroactivity, then, it was necessary for the judge to have that
previous marriage declared void before he can solemnize a valid
marriage.
In BELTRAN vs. PEOPLE, the Court said that it is not for the
parties to determine the nullity of marriage. It is for the court to
judge that indeed that marriage is void. And for as long as there is
no such declaration, the presumption is the marriage is valid for all
intents and purposes.
You also apply:
CARIO vs. CARIO (351 SCRA 127)
The husband contracted 2 marriages. The husband died. All
the wives were named Susan. The first Susan was married with
the husband but there was no marriage license. Later, the
husband contracted a subsequent marriage without the first
marriage declared void. So, the husband died.
The second wife said I should be the one who will receive all
the benefits because the first marriage is void. There was no
marriage license.
The Supreme Court said NO. Your marriage is void. Without
the declaration of the nullity of the first marriage, it is presumed to
subsist. That should be recognized.
When we go to Article 147 and 148, what was applied to the
first marriage is Article 147 and Article 148 as to the subsequent
marriage.
So, there must be declaration of nullity of previous marriage.
Otherwise, the subsequent marriage is void.

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Now, the word here solely is not for remarriage because
nullity of a previous marriage may be invoked for any other
purpose such as partition of a property, succession,
distribution and liquidation. The word solely there does not
refer to remarriage.
It refers to the presentation of the decree in order that
the subsequent marriage can be considered valid - the
presentation solely of the decree of nullity of previous
marriage that would render the subsequent marriage valid.
ARTICLE 41.
A marriage contracted by any person during
the subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and
the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
The general rule is that if one contracts a subsequent
marriage while the other marriage is still subsisting, the
subsequent marriage is null and void.
The exception now is Article 41, where one can contract a
subsequent marriage yet the first marriage is still subsisting.
But there are 4 requisites in order that the subsequent
marriage be considered valid:
1.
One of the spouses must be absent for 4
consecutive years.
The 7-year period had been shortened to 4 consecutive
years. And further shortened to 2 years if the absentee
spouse disappears until circumstances where there is
danger of death as defined under Article 391 of the Civil
Code.
ARTICLE 391.
The
following
shall
be
presumed dead for all purposes, including the
division of the estate among the heirs:
(1) A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the
vessel or aeroplane;
(2) A person in the armed forces who has taken part
in war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
So, both the vessel or the airplane as well as the
absentee spouse are missing. It does not apply to a situation
where the absentee spouse is missing because he jumped
overboard. What is required is both the vessel and the person
has disappeared.
The second will only apply to military who participated in
war and has been missing for 4 years.
Other analogous circumstances what is that?
An
example would be the crash of Air Philippines in Samal. It can
be considered as an analogous situation. You can find the
plane but you cannot find the person. There is difficulty in
identifying the person if that would happen. That is an
analogous circumstance.
2. The present spouse has a well-founded belief that
the absentee spouse is already dead

3. The spouse present must obtain a judicial declaration of

presumptive death. The absentee spouse cannot file a petition
for a judicial declaration of presumptive death because it is he who
is absentee.
4. It must be solely for the purpose of remarriage.
Article 41 is only for the purpose of remarriage, not for any
other purpose.
These requisites were laid down by the Supreme Court in the
case of:
REPUBLIC vs. NOLASCO (220 SCRA 20)
There was this marriage between a Filipino and a foreigner
(British). The husband is a seaman. Aboard the ship, his mother
wrote to him that his wife is missing. The husband went back to
the Philippines and found that the wife is indeed missing.
He filed a petition for declaration of presumptive death of
Janet Parker. As proof, he went to Liverpool to find her. But
actually, the wife is not a resident of Liverpool. Moreover, he did
not present the unreturned letters.
According to the Supreme Court, you did not prove you have
exerted effort to locate your wife. In fact, you did not contact the
proper authorities. He could have reported it to the police or he
could have contacted the embassy of the wife.
According to the Supreme Court, spouses should not be
allowed, by the simple expedient of agreeing that one of them
leave the conjugal abode and never to return again, to circumvent
the policy of the laws on marriage.
The second case is:
CALISTERIO vs. CALISTERIO (April 6, 2000)
The first marriage was celebrated when the old Civil Code was
still in effect. The husband, James Bounds, disappeared. 11 years
later, where the Civil Code was already in effect, the wife
contracted a subsequent marriage.
When the second husband died, the heirs of the second
husband questioned the validity of marriage claiming that there
was no judicial declaration of presumptive death and therefore,
the marriage is void.
The Supreme Court said in this case is that a judicial
declaration of absence of the absentee spouse is not necessary as
long as the prescribed period of absence is met, which is 7 years
under the Civil Code and if the spouse present believes that the
absentee spouse is considered to be dead and believed to be so.
In that same case, the Supreme Court said that the
requirements laid down in Republic must be complied with.
What if the absentee spouse is missing for more than 11
years? Under our law, if you are missing for 10 years, you are
considered dead for all purposes including that of opening for
succession.
Here comes the case of:
MANUEL vs. PEOPLE (Nov. 29, 2005)
Eduardo first married Rubylus, then, Rubylus went missing.
21 years, Eduardo contracted a subsequent marriage. That was in
1996. Then, he married the second wife. The second wife got
suspicious. What she did was she made inquiries. She found that
Eduardo was previously married to one Rubylus. She filed now an
action for bigamy. She sued the husband for bigamy.
The defense of Eduardo Manuel was that I do not have to
obtain a decree of presumptive death because my first had been
missing for 21 years. And under Article 390, that person is already
presumed dead for all purposes even in the absence of 7 years,
only that her property shall not be touched. But in this case, she
has been missing for more than 10 years. So, the properties of the
absentee spouse can in fact be partitioned.
The Supreme Court said NO. Your best evidence that you
contracted the subsequent marriage in good faith is the
presentation of the decree of presumptive death. The Supreme
Court said that it was the burden of the petitioner (husband) that

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he contracted the subsequent marriage in good faith. And the
best evidence would be that decree of presumptive death.
The good faith is immaterial.
MANUEL vs. PEOPLE (Nov. 29, 2005)
FACTS: Eduardo married Rubylus in 1975. In 1996, Tina
(petitioner) married Eduardo.
Sometime in 2001, Tina
became curious and made inquiries from the NSO. She
learned that Eduardo was previously married.
Eduardos defense was that he believed in good faith that
his first marriage was invalid. Eduardo further claimed that he
was only forced to marry his first wife because she threatened
to commit suicide unless he did so. Rubylus was charged with
estafa in 1975 and thereafter imprisoned. He visited her in
jail after three months and never saw her again. He insisted
that he married Tina believing that his first marriage was no
longer valid because he had not heard from Rubylus for more
than 20 years.
The trial court found Eduardo guilty of bigamy.
CA
affirmed the decision of the RTC. According to the CA, Article
41 of the Family Code should apply. Before Manuel could
lawfully marry the private complainant, there should have
been a judicial declaration of Rubylus presumptive death as
the absent spouse.
Eduardo avers that Rubylus had been absent for 21
years since 1975. And under Article 390 of the Civil Code, she
was presumed dead as a matter of law. He points out that,
under the first paragraph of Article 390 of the Civil Code, one
who has been absent for 7 years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for
succession, while the second paragraph refers to the rule on
legal presumption of death with respect to succession.
HELD: It was the burden of the petitioner to prove his
defense that when he married the private complainant in
1996, he was of the well-grounded belief that his first wife
was already dead, as he had not heard from her for more than
20 years since 1975. He should have adduced in evidence a
decision of a competent court declaring the presumptive
death of his first wife as required by Article 349 of the Revised
Penal Code, in relation to Article 41 of the Family Code. Such
judicial declaration also constitutes proof that the petitioner
acted in good faith, and would negate criminal intent on his
part when he married the private complainant and, as a
consequence, he could not be held guilty of bigamy in such
case. The petitioner, however, failed to discharge his burden.
The petitioners sole reliance on Article 390 of the Civil
Code as basis for his acquittal for bigamy is misplaced.
With the effectivity of the Family Code, the period of
seven years under the first paragraph of Article 390 of the
Civil Code was reduced to four consecutive years. Thus,
before the spouse present may contract a subsequent
marriage, he or she must institute summary proceedings for
the declaration of the presumptive death of the absentee
spouse, without prejudice to the effect of the reappearance of
the absentee spouse.
The Court rejects petitioners contention that the
requirement of instituting a petition for declaration of
presumptive death under Article 41 of the Family Code is
designed merely to enable the spouse present to contract a
valid second marriage and not for the acquittal of one charged
with bigamy. Such provision was designed to harmonize civil
law and Article 349 of the Revised Penal Code, and put to rest
the confusion spawned by the rulings of this Court and
comments of eminent authorities on Criminal Law.
There is this case of:
SSS vs. JARQUE VDA. DE BAILON
In this case, the issue here is that under Article 42, the
subsequent marriage is automatically terminated by the
reappearance of the absentee spouse by the execution of

affidavit of reappearance and filing the affidavit with the Local Civil
Registrar where the subsequent marriage was celebrated. That is
the requirement under Article 42.
Suppose the husband knew all along where the first wife is but
he made it appear that the first wife had gone missing. But the
husband knew the whereabouts of the wife.
The wife made her reappearance known. Would that be
sufficient to terminate the subsequent marriage?
In short, the husband is in bad faith.
Second, since he is in bad faith, would the reappearance of
the first wife sufficient to terminate the subsequent marriage?
That was the issue in the case of SSS vs. Vda. De Bailon.
The husband was married when the Civil Code was still in
effect. Even under the Civil Code, he obtained a decree of
presumptive death of the first wife. It was not necessary under
the Civil Code. Nevertheless, he obtained a decree of presumptive
death and he contracted a subsequent marriage. Later, the
husband died.
They (the wives) quarreled over the benefits accruing from
the death of the husband.
The Social Security System denied the application of the
second wife.
According to the Social Security System, the
husband was aware of the whereabouts of the first wife.
According to the first wife, how could I be declared
presumptively death when he knew that I live near his mother-inlaws house, which is only about 5 kilometers from his place. He
was aware of where I was. Moreover, I reappeared but I did not
execute an affidavit of reappearance. Why should I execute an
affidavit of reappearance when I was not missing? I only left but
he was aware where I was. That was the argument.
With that, the Social Security System awarded benefits to the
first wife. It then went to the Social Security Commission, and the
Social Security Commission upheld the finding of the Social
Security System. It then went now to the CA and eventually to the
Supreme Court.
This was how it was decided by the Supreme Court: The two
marriages involved herein having been solemnized prior to the
effectivity on August 3, 1988 of the Family Code, what will be
applied is the Civil Code, specifically Article 83:
Article 83 of the Civil Code provides:
Art. 83. Any marriage subsequently contracted by any
person during the lifetime of the first spouse of such
person with any person other than such first spouse shall
be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven
consecutive years at the time of the second marriage
without the spouse present having news of the absentee
being alive, or if the absentee, though he has been
absent for less than seven years, is generally considered
as dead and believed to be so by the spouse present at
the time of contracting such subsequent marriage, or if
the absentee is presumed dead according to Articles 390
and 391. The marriage so contracted shall be valid
in any of the three cases until declared null and void by a
competent court.
In the case at bar, Alice Alice had been absent for 15
consecutive years when Bailon sought the declaration of her
presumptive death, which judicial declaration was not even a
requirement then for purposes of remarriage.
If the absentee reappears, but no step is taken to terminate
the subsequent marriage, either by affidavit or by court action,
such absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such
marriage.
Since the second marriage has been contracted
because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouses physical
reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is
terminated as provided by law, which is the by the execution of an
affidavit of reappearance.

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But with the death of the husband, who shall now get or
be entitled to the benefits?
If the subsequent marriage is not terminated by
registration of an affidavit of reappearance or by judicial
declaration but by death of either spouse as in the case at
bar, the Supreme Court cited Tolentino. Tolentino states:
Generally if a subsequent marriage is dissolved by the death
of either spouse, the effects of dissolution of valid marriages
shall arise. The good or bad faith of either spouse can no
longer be raised, because, as in annullable or voidable
marriages, the marriage cannot be questioned except in a
direct action for annulment.
Voidable marriages can be assailed only during the
lifetime of the parties and not after the death of either, in
which case the parties and their offspring will be left as if the
marriage had been perfectly valid. The marriage cannot be
impeached, and is made good ab initio.
So, the second marriage shall prevail over that of the
previous marriage.
SSS vs. VDA. DE BAILON
FACTS: Clemente married Alice in 1955. In 1970, Clemente
filed a petition to declare Alice presumptively dead. There
being no opposition filed against the petition notwithstanding
the publication of the Notice of Hearing in a newspaper of
general circulation in the country, Alice Diaz was declared for
all legal intents and purposes, except for those of succession,
presumptively dead.
In 1983, Clemente married Teresita. In 1994, Clemente
died. Teresita claimed the SSS benefits.
Cecilia, who claimed to be a daughter of Clemente and
one Elisa contested before the SSS the release to respondent
of the death and funeral benefits. She claimed that Bailon
contracted 3 marriages in his lifetime, the first with Alice, the
second with her mother Elisa, and the third with respondent,
all of whom are still alive.
In 1999, a certain Hermes P. Diaz, claiming to be the
brother and guardian of Aliz P. Diaz, filed before the SSS a
claim for death benefits accruing from Clementes death.
SSS cancelled the payment of death pension benefits to
respondent. It stated that it is the deceased member who
was the deserting spouse and who remarried, thus his
marriage to Teresita Jarque, for the second time was void as it
was bigamous. To require affidavit of reappearance to
terminate the second marriage is not necessary as there is no
disappearance of Alice Diaz, the first wife, and a voidable
marriage to speak of.
In the meantime, Alice filed an affidavit with the SSS
attesting that she is the widow of Clemente, that she had only
recently come to know of the petition filed by Clemente to
declare her presumptively dead; that it is not true that she
disappeared as Bailon could have easily located her, she
having stayed at her parents residence in Barcelona,
Sorsogon after she found out that Bailon was having an
extramarital affair; and Bailon used to visit her even after
their separation.
SSC found that the marriage of Teresita to Clemente was
void and, therefore, she was just a common-law-wife. CA
reversed the said decision.
HELD:
The two marriages involved herein having been
solemnized prior to the effectivity on August 3, 1988 of the
Family Code, the applicable law to determine their validity is
the Civil Code which was the law in effect at the time of their
celebration.
Under the Civil Code, a subsequent marriage being
voidable, it is terminated by final judgment of annulment in a
case instituted by the absent spouse who reappears or by
either of the spouses in the subsequent marriage.
Under
the Family Code, no judicial proceeding to annul a
subsequent marriage is necessary.

If the absentee reappears, but no step is taken to terminate

the subsequent marriage, either by affidavit or by court action,
such absentees mere reappearance, even if made known to the
spouses in the subsequent marriage, will not terminate such
marriage.
Since the second marriage has been contracted
because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouses physical
reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is
terminated as provided by law.
In fact, even if the bigamous marriage had not been void ab
initio but only voidable under Article 83, paragraph 2, of the Civil
Code, because the second marriage had been contracted with the
first wife having been an absentee for seven consecutive years, or
when she had been generally believed dead, still the action for
annulment became extinguished as soon as one of the three
persons involved had died, as provided in Article 87, paragraph 2,
of the Code, requiring that the action for annulment should be
brought during the lifetime of any one of the parties
involved.
It bears reiterating that a voidable marriage cannot be
assailed collaterally except in a direct proceeding. Consequently,
such marriages can be assailed only during the lifetime of the
parties and not after the death of either, in which case the parties
and their offspring will be left as if the marriage had been perfectly
valid. Upon the death of either, the marriage cannot be
impeached, and is made good ab initio.
In the case at bar, as no step was taken to nullify, in
accordance with law, Bailons and respondents marriage prior to
the formers death in 1998, Teresita is rightfully the dependent
spouse-beneficiary of Bailon.
That is now the necessity of executing the affidavit of
reappearance and registering the affidavit of reappearance with
the Local Civil Registrar where the subsequent marriage was
recorded.
So, that will now resolve all doubts. It is now necessary. At
first, it was only the opinion of Tolentino, that what was to be
considered as valid is the subsequent marriage without the
affidavit. Here comes now the case of SSS vs. Vda. De Bailon.
In the event the subsequent marriage is terminated by the
reappearance of the absentee spouse and the execution of the
affidavit, what happens? What are the effects?
ARTICLE 43.
The termination of the subsequent marriage
referred to in the preceding Article shall produce the following
effects:
(1) The children of the subsequent marriage conceived prior to its
termination shall be considered legitimate, and their custody and
support in case of dispute shall be decided by the court in a proper
proceeding;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his or
her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as a beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad
faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)

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ARTICLE 44.
If both spouses of the subsequent marriage
acted in bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are revoked by
operation of law.
Then, we go to annulment. What are the grounds?
ARTICLE 45.
A marriage may be annulled for any of the
following causes, existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized without
the consent of the parents, guardian or person having
substitute parental authority over the party, in that order,
unless after attaining the age of twenty-one, such party freely
cohabited with the other and both lived together as husband
and wife;
Number one is one or both parties are between 18 and 21
years of age and did not obtain parental consent. The period
in which to institute petition for annulment, with respect to
the parties who is between 18 and 21, is 5 years after
reaching the age of 21.
But if you are the parent, at anytime before the party
reach the age of 21. If you are the parent or the guardian of
the party who is between the ages 18 and 21 and who did not
obtain parental consent, the parent or guardian is only given
within at any time before the party reaches the age of 21.
And because this is an annullable marriage, this is ratified
by free cohabitation by the man and the woman as husband
and wife.
There was this bar examination question:
May the
parents oppose the annulment filed by the party between the
age of 18 and 21 by ratifying? By giving consent?
The answer is NO. The only one who can ratify the
marriage is the party who is between the ages of 18 and 21.
The parents cannot ratify. The ratification comes in the form
of free cohabitation.
(2) That either party was of unsound mind, unless such party,
after coming to reason, freely cohabited with the other as
husband and wife;
The period to institute a petition for annulment is at
anytime before the death of the party.
(3)
That the consent of either party was obtained by
fraud, unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the other as
husband and wife;
What constitutes fraud is found in Article 46.
The
enumeration in Article 46 is exclusive. What is not found
therein cannot be considered as fraud.
ARTICLE 46.Any of the following circumstances shall
constitute fraud referred to in number 3 of the
preceding Article:
(1) Non-disclosure of a previous conviction by final
judgment of the other party of a crime involving
moral turpitude;
(2) Concealment by the wife of the fact that at the
time of the marriage, she was pregnant by a man
other than her husband;
There must be concealment. If the wife told the husband,
I am pregnant and the author is not the husband, there is no
concealment. There was admission of pregnancy. Here, it

cannot be concealment. If the wife says, iyo man ito. The child
will be legitimate. It is for the husband to impugn the legitimacy
of the child.
The 5-year period starts from the time the knowledge of fraud
was acquired.
(3) Concealment of a sexually-transmissible disease,
regardless of its nature, existing at the time of the
marriage; or
One of the grounds for annulment is also sexuallytransmissible disease. But in order for it to be annulled, it should
be incurable. But if there is concealment, regardless of its nature,
it constitutes fraud.
(4) Concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of
marriage.
Precisely that the grounds are exclusive.
grounds.

So, no other

(4) That the consent of either party was obtained by force,

intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely cohabited with
the other as husband and wife;
As to vices of consent, 5-years from the vice of consent
ceases.
(5) That either party was physically incapable of consummating
the marriage with the other, and such incapacity continues and
appears to be incurable; or
There is impotency on the part of the husband and frigidity of
the wife.
Of course, there is also the doctrine of triennial
cohabitation if the wife remains a virgin. In the case of Chi Ming
Tsoi, it was 8 months but it was a different story altogether.
The doctrine of triennial cohabitation is that the wife remains
a virgin for 3 years, the presumption is that the husband is
impotent.
But not relative impotency, impotent with respect to the wife
but not with respect to other women.
(6) That either party was afflicted with a sexually-transmissible
disease found to be serious and appears to be incurable. (85a)
You can file an action for annulment of marriage within 5
years after the marriage. You are given 5 years to institute a
petition.
There is this question if a spouse is physically incapable of
consummating marriage and there is no ratification, can it be
annulled? It can be annulled, although the parties are only given 5
years because according to an author, the marriage may be based
on agape, platonic love.
The aggrieved spouse is given 5 years to file a petition for
annulment. If you can live without it, well
ARTICLE 47.
The action for annulment of marriage must be
filed by the following persons and within the periods indicated
herein:
(1) For causes mentioned in number 1 of Article 45, by the party
whose parent or guardian did not give his or her consent, within
five years after attaining the age of twenty-one; or by the parent

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Karla Deles & Jazzie Sarona

or guardian or person having legal charge of the minor, at any
time before such party reaches the age of twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the
sane spouse who had no knowledge of the other's insanity; by
any relative, guardian or person having legal charge of the
insane, at any time before the death of either party; or by the
insane spouse during a lucid interval or after regaining sanity;
(3) For causes mentioned in number 3 of Article 45, by the
injured party, within five years after the discovery of the
fraud;
(4) For causes mentioned in number 4 of Article 45, by the
injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by
the injured party, within five years after the marriage.
JUNE 24
There is this case of:
VILLANUEVA vs. CA (Oct. 27, 2006)
The issue here is does the failure to cohabit as husband
and wife a ground for annulment?
When Orlando married Lilia, Lilia was already pregnant.
After that, Orlando left Lilia in Palawan and decided to work in
Manila. While there, he filed a petition for annulment on the
ground that they never cohabited and the child by Lilia is not
his child because when they were in a motel, the intercourse
did not materialize because Lilia was on top of him. So, that
could not have been his child. Another reason is there noncohabitation.
The issue really here is non-cohabitation a ground for
annulment.
What was presented by Lilia as proof that there was
voluntary consent of Orlando to the marriage were the letters
written by Orlando during the early part of the marriage.
During the trial, Orlando was asked on whether he wrote
the letters. And he admitted.
The Supreme Court said that the letters admitted to be
written contained expressions of love and concern for his wife,
and hardly the rantings of a man under duress. Lack of
cohabitation is, per se, not a ground to annul a marriage.
Otherwise, the validity of a marriage will depend upon the will
of the spouses who can terminate the marital union by
refusing to cohabitate.
The failure to cohabit becomes
relevant only if it arises as a result of the perpetration of any
of the grounds for annulling the marriage, such as lack of
parental consent, insanity, fraud, intimidation, or undue
influence. Since Orlando failed to justify his failure to cohabit
with Lilia on any of those grounds, the validity of his marriage
must be upheld.
VILLANUEVA vs. CA (Oct. 27, 2006)
FACTS: Orlando and Lilia got married in 1988. In 1992,
Orlando filed a petition for annulment of his marriage alleging
that threats of violence and duress forced him into marrying
Lilia, who was already pregnant; that he did not get her
pregnant prior to the marriage; that he never cohabited with
her after the marriage; and that he later learned that private
respondent's child died during delivery.
Lilia argued that Orlando freely and voluntarily married
her; that he stayed with her in Palawan for almost a month
after their marriage; that he wrote letters to her after he
returned to Manila, during which she visited him personally;
and that he knew about the progress of her pregnancy, which
ended in their son being born prematurely.
HELD: It is not disputed that at the time he was allegedly
being harassed, appellant worked as a security guard in a
bank. Given his employment at that time, it is reasonable to
assume that appellant knew the rudiments of self-defense, or,
at the very least, the proper way to keep himself out of harms

way. For sure, it is even doubtful if threats were indeed made to

bear upon appellant, what with the fact that he never sought the
assistance of the security personnel of his school nor the police
regarding the activities of those who were threatening him. And
neither did he inform the judge about his predicament prior to
solemnizing their marriage.
Appellants excuse that he could not have impregnated the
appellee because he did not have an erection during their tryst is
flimsy at best, and an outright lie at worst. The complaint is bereft
of any reference to his inability to copulate with the appellee.
The letters admitted by the appellant contained expressions
of love and concern for his wife, and hardly the rantings of a man
under duress.
During the re-direct examination, however,
appellant suddenly changed mind and denied authorship of those
seven (7) letters, claiming that he was forced to admit them
because he was threatened with harm by the appellee. The
recantation can only be motivated by a hindsight realization by the
appellant of the evidentiary weight of those letters against his
case.
Lack of cohabitation is, per se, not a ground to annul a
marriage. Otherwise, the validity of a marriage will depend upon
the will of the spouses who can terminate the marital union by
refusing to cohabitate. The failure to cohabit becomes relevant
only if it arises as a result of the perpetration of any of the grounds
for annulling the marriage, such as lack of parental consent,
insanity, fraud, intimidation, or undue influence.
Since the
appellant failed to justify his failure to cohabit with the appellee on
any of those grounds, the validity of his marriage must be upheld.
ARTICLE 48.
In all cases of annulment or declaration of
absolute nullity of marriage, the court shall order the prosecuting
attorney or fiscal assigned to it to appear on behalf of the State to
take steps to prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or confession
of judgment.
There is this requirement under Article 48 which states that in
all cases of annulment or declaration of absolute nullity of
marriage, the intervention of the prosecuting attorney or the fiscal
shall appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that evidence is not
fabricated or suppressed.
There is this case of:
ANCHETA vs. ANCHETA (March 4, 2004)
In this case, the husband and wife were already separated in
fact. And then, due to their separation in fact, they decided to
have their conjugal partnership terminated. One of the parties
was awarded with Munting Paraisa, a resort, which has become the
residence of the wife and the children.
Subsequently, the husband decided to file a petition for
declaration of nullity of marriage on the ground of psychological
incapacity of the wife. There were summons issued as to the
petition. The husband provided an address of the wife, where the
wife is no longer residing. But he knew all along the new address
of the wife.
In short, inasmuch as there was no answer to the petition, the
husband manifested to the court that he will adduce evidence ex
parte and it was granted by the court. After that, the court
granted the petition because the wife was in default for failure to
file an answer within the period required by law.
When the marriage was declared void, the husband
contracted a subsequent marriage. The wife, when she learned of
the declaration of nullity, filed now a petition for the annulment of
that order declaring the married void.
The Supreme Court said that the public prosecutor condoned
the acts of the trial court when he interposed no objection to the
motion of the respondent. The trial court forthwith received the
evidence of the respondent ex-parte and rendered judgment

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against the Marietta without a whimper of protest from the
public prosecutor. The actuations of the trial court and the
public prosecutor are in defiance of Article 48 of the Family
Code. which reads:
Article 48. In all cases of annulment or declaration
of absolute nullity of marriage, the Court shall order
the prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to
prevent collusion between the parties and to take
care that evidence is not fabricated or suppressed.
xxx
The trial court and the public prosecutor also ignored Rule
18, Section 6 of the 1985 Rules of Court (now Rule 9, Section
3[e] of the 1997 Rules of Civil Procedure) where it states that
there is no default in an action for annulment or legal
separation.
ANCHETA vs. ANCHETA (March 4, 2004)
FACTS: Marietta and Rodolfo got married in 1959 and they
had 8 children. In 1992, Rodolfo left the conjugal home and
abandoned the petitioner and their children. Marietta filed a
petition for the dissolution of their conjugal partnership and
judicial separation of property with a plea for support and
support pendente lite. The parties executed a compromise
agreement where some of the conjugal properties were
adjudicated to the petitioner and her eight children.
Conformably, Rodolfo vacated the resort Munting Paraiso and
all the buildings and improvements thereon. The petitioner,
with the knowledge of the respondent, thenceforth resided in
the said property.
Rodolfo intended to marry again. He filed a petition for
the declaration of nullity of his marriage with the petitioner on
the ground of psychological incapacity.
Although the
respondent knew that the petitioner was already residing at
the resort Munting Paraiso in Cavite, he, nevertheless, alleged
in his petition that the petitioner was residing in BF Homes in
Las Pias, Metro Manila, where she may be served with
summons. The summons were received by their son. The
petitioner failed to file an answer to the petition. During the
hearing on the said date, there was no appearance for the
petitioner. The public prosecutor appeared for the State and
offered no objection to the motion of the respondent who
appeared with counsel. The trial court granted the motion and
declared the petitioner in default, and allowed the respondent
to adduce evidence ex-parte. The trial court granted the
petition.
The petitioner filed a verified petition alleging the Rodolfo
committed gross misrepresentations.
HELD: The records show that for the petitioners failure to file
an answer to the complaint, the trial court granted the motion
of the respondent herein to declare her in default. The public
prosecutor condoned the acts of the trial court when he
interposed no objection to the motion of the respondent. The
trial court forthwith received the evidence of the respondent
ex-parte and rendered judgment against the petitioner
without a whimper of protest from the public prosecutor. The
actuations of the trial court and the public prosecutor are in
defiance of Article 48 of the Family Code.
The trial court and the public prosecutor also ignored Rule
18, Section 6 of the 1985 Rules of Court (now Rule 9, Section
3[e] of the 1997 Rules of Civil Procedure) which provides that
there is no default in actions for annulment of marriage or for
legal separation.
The Supreme Court has laid down the guidelines in the
interpretation and application of Art. 48 of the Family Code,
one of which concerns the role of the prosecuting attorney or
fiscal and the Solicitor General to appear as counsel for the
State.
A grant of annulment of marriage or legal separation by
default is fraught with the danger of collusion. Hence, in all

cases for annulment, declaration of nullity of marriage and

legal separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the State for the purpose of
preventing any collusion between the parties and to take
care that their evidence is not fabricated or suppressed. If
the defendant-spouse fails to answer the complaint, the court
cannot declare him or her in default but instead, should order the
prosecuting attorney to determine if collusion exists between the
parties.
The prosecuting attorney or fiscal may oppose the
application for legal separation or annulment through the
presentation of his own evidence, if in his opinion, the proof
adduced is dubious and fabricated.
What happens if the marriage is annulled?
found in Article 50.

The effects are

ARTICLE 50.
The effects provided for in paragraphs (2), (3),
(4) and (5) of Article 43 and in Article 44 shall also apply in proper
cases to marriages which are declared void ab initio or annulled by
final judgment under Articles 40 and 45. xxx
Paragraph 2 of Article 43 refers to the dissolution, partition
and liquidation of either the conjugal partnership or absolute
community of property.
Paragraph 3 of Article 43 is that the donation propter nuptias
will be invalid if the donee acted in bad faith.
Paragraph 4 of Article 43 is revocation of the insurance policy,
even if such designation is irrevocable.
Article 44 speaks of void marriage where both parties acted in
bad faith.
Article 40 refers to the nullity of the subsequent marriage
because of the absence of declaration of nullity of a previous void
marriage.
It is therefore the subsequent marriage which is
declared void, in order for Article 40 to be governed by the
provisions of Article 43, paragraphs 2, 3 4 and 5.
When we go to Article 147 and, you remember the case of
CARIO vs. CARIO where it says that the first marriage is
governed by Article 147 and the subsequent marriage is governed
by Article 148.
You remember the case of VALDEZ vs. VALDEZ? This is the
first case on Article 147. We will go to that later. Suffice to say
that Article 40 here, the declaration of the nullity marriage would
refer to the subsequent marriage, and not to the first marriage, as
decided by the Supreme Court in the cases of VALDEZ and
reiterated in BUENAVENTURA.
ARTICLE 50 XXX The final judgment in such cases shall provide
for the liquidation, partition and distribution of the properties of
the spouses, the custody and support of the common children, and
the delivery of their presumptive legitimes, unless such matters
had been adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute
community or the conjugal partnership shall be notified of the
proceedings for liquidation. XXX
All 3, (1) the liquidation, partition and distribution of the
properties of the spouses, (2) the custody and support of the
common children, and the (3) delivery of their presumptive
legitimes, must be complied with in order for the spouses to
contract a subsequent valid marriage. Non-compliance with these
3 would render the subsequent marriage void. Article 53 provides:
ARTICLE 53.
Either of the former spouses may marry again
after complying with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage shall be null
and void.

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So, the 3 must be complied with.
Otherwise, noncompliance with that and then, any or both of the parties
would contract a subsequent marriage, then, that subsequent
marriage, by virtue of Article 53, is void.
The delivery to the children of the presumptive legitime is
the exception to the rule that the right of the children over
legitimes is merely inchoate or a mere expectancy. This is an
exception because the law provides the delivery of their
presumptive legitime even if the parents are still alive, but
only in cases of annulment or declaration of nullity of
marriage under Article 40.
Going back to Article 50, last paragraph:
Article 50 XXX In the partition, the conjugal dwelling and the
lot on which it is situated, shall be adjudicated in accordance
with the provisions of Articles 102 and 129.
So, it shall go to the parent with whom the majority of the
children choose to remain.
Children below 7 years of age shall not be separated from
their mother, unless there are compelling reasons.
ARTICLE 54.
Children conceived or born before the
judgment of annulment or absolute nullity of the marriage
under Article 36 has become final and executory, shall be
considered legitimate. Children conceived or born of the
subsequent marriage under Article 53 shall likewise be
legitimate.
Article 54 is an exception. Children born out of marriages
under Article 36 and 53 are nevertheless legitimate.
Article 45 provides for the grounds for legal separation.
Article 56 provides for the grounds where the petition for legal
separation shall be denied by the courts.
If you remember Republic Act 9262, if the ground cited by
the wife is violent in form, whether physical, emotional or
verbal, there is no need to serve that 6-month period provided
for in Article 58. Then, the court should hear the petition
immediately.
ARTICLE 58.
An action for legal separation shall in no
case be tried before six months shall have elapsed since the
filing of the petition.
The grounds for petition for legal separation to be denied
are found in Article 56. You have condonation, consent,
connivance, mutual recrimination, collusion and prescription.
In prescription, the action must be instituted within 5
years after the occurrence of cause, not from the discovery of
the cause.
ARTICLE 56.
The petition for legal separation shall be
denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or
act complained of;
(2) Where the aggrieved party has consented to the
commission
of the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground
for legal separation;
(4) Where both parties have given ground for legal
separation;
(5) Where there is collusion between the parties to obtain the
decree of legal separation; or
(6) Where the action is barred by prescription.

There is the case of:

ONG vs. ONG (Oct. 23, 2006)
The wife filed for a petition for legal separation on the ground
of physical violence inflicted upon her person as well as her on
children. Because she could no longer bear the physical injuries or
physical violence inflicted upon her, she decided the conjugal
dwelling. Then, she filed a petition for legal separation.
It was opposed on the ground that both of them have legal
ground for legal separation. He for physical violence and she for
abandonment of conjugal dwelling.
The Supreme Court said that also without merit is the
argument of William that since Lucita has abandoned the family, a
decree of legal separation should not be granted, following Art. 56,
par. (4) of the Family Code which provides that legal separation
shall be denied when both parties have given ground for legal
separation. The abandonment referred to by the Family Code is
abandonment without justifiable cause for more than one year.
As it was established that Lucita left William due to his abusive
conduct, such does not constitute abandonment contemplated by
the said provision.
ONG vs. ONG (Oct. 23, 2006)
FACTS: William and Lucita were married in 1975 and had 3
children. In 1996, Lucita filed a complaint for legal separation
alleging that her life with William was marked by physical violence,
threats, intimidation and grossly abusive conduct. William would
also scold and beat the children at different parts of their bodies
using the buckle of his belt.
William for his part denied that he ever inflicted physical harm
on his wife, used insulting language against her, or whipped the
children with the buckle of his belt.
HELD: Also without merit is the argument of William that since
Lucita has abandoned the family, a decree of legal separation
should not be granted, following Art. 56, par. (4) of the Family
Code which provides that legal separation shall be denied when
both parties have given ground for legal separation. The
abandonment referred to by the Family Code is
abandonment without justifiable cause for more than one
year.
As it was established that Lucita left William due to his
abusive conduct, such does not constitute abandonment
contemplated by the said provision.
The effects of legal separation are found in Article 63.
ARTICLE 63.
The decree of legal separation shall have the
following effects:
(1) The spouses shall be entitled to live separately from each
other,
but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be
dissolved and liquidated but the offending spouse shall have
no right to any share of the net profits earned by the absolute
community or the conjugal partnership, which shall be
forfeited in
accordance with the provisions of Article 43 (2);
(3) The custody of the minor children shall be awarded to the
innocent spouse, subject to the provisions of Article 213 of
this Code; and
(4) The offending spouse shall be disqualified from inheriting from
the innocent spouse by intestate succession. Moreover, provisions
in favor of the offending spouse made in the will of the innocent
spouse shall be revoked by operation of law.
Take note that the spouses are still married to each other.
They only live separately from each other. They are separated
from bed and board. It is not a dissolution of marital bond. But
there is the requirement of dissolving, liquidating and partitioning
the conjugal partnership or the absolute community property as
well as the forfeiture with the effect of the guilty spouse in
accordance with Article 43, paragraph 2. This refers to the share

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Karla Deles & Jazzie Sarona

forfeited in favor of the common children. In the absence of
the common children, the children of the guilty spouse. In the
absence of the children of the guilty spouse, the children of
the innocent spouse.
The custody of the minor children shall be awarded to the
innocent spouse, subject to the provision of Article 213 that
no child below 7 years of age shall be separated from the
mother, unless the mother is unfit.
Of course, the revocation to inherit from the innocent
spouse in intestate succession. If there is a will, it is revoked
by operation of law.
Suppose the spouses will decide to reconcile, the effects
are found in Article 66.
ARTICLE 66.
The reconciliation referred to in the
preceding Article shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be
terminated in whatever stage; and
(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share of
the guilty
spouse already effected shall subsist, unless
the spouses agree to
revive
their
former
property
regime.
The court order containing the foregoing shall be
recorded in the proper civil registries.
Should the parties decide to revive the property regime,
this is actually not revival per se of the former property
regime. Take note that they have agreed and specified
properties to be contributed anew to the restored regime.
Otherwise, those not contributed anew to the restored regime
can be considered as separate properties of the owner
spouse. There is no revival actually because there is an
agreement.
Let us go to the RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE.
The first essential marital obligation is found in Article 68.
ARTICLE 68.
The husband and wife are obliged to live
together, observe mutual love, respect and fidelity, and
render mutual help and support.
There is this of:
ILUSORIO vs. BILDNER (May 12, 2000)
The husband refused to live with the wife. So, what the
wife did was to secure a writ of habeas corpus to compel the
husband to live with her. Now, is the writ of habeas corpus
the proper remedy?
The Supreme Court no court is empowered as a judicial
authority to compel a husband to live with his wife. Coverture
cannot be enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne process. That is
a matter beyond judicial authority and is best left to the man
and womans free choice.
Unlike that of the Argentine Code, according to Tolentino,
where if the wife or the husband refuses to live with the other,
the wife or the husband can physically carry the wife/husband
back to their conjugal home. That is not true in our law. That
is under the Argentine Code.
Second is the fixing of the family domicile.
ARTICLE 69.
The husband and wife shall fix the family
domicile. In case of disagreement, the court shall decide.

The court may exempt one spouse from living with the other if
the latter should live abroad or there are other valid and
compelling reasons for the exemption. However, such exemption
shall not apply if the same is not compatible with the solidarity of
the family.
Article 70 is another essential marital obligation of the
marriage.
ARTICLE 70.
The spouses are jointly responsible for the
support of the family. The expenses for such support and other
conjugal obligations shall be paid from the community property
and, in the absence thereof, from the income or fruits of their
separate properties. In case of insufficiency or absence of said
income or fruits, such obligations shall be satisfied from their
separate properties. (111a)
Another is Article 71 on management of the household, which
is the right and duty of both the husband and the wife.
ARTICLE 71.
The management of the household shall be the
right and duty of both spouses. The expenses for such
management shall be paid in accordance with the provisions of
Article 70.
Those are the essential marital obligation of marriage
between the husband and the wife.
Article 72 has been amended. Under the Civil Code, it merely
refers to material injury. Here now, it refers to all kinds of injury. It
includes physical or moral injury.
ARTICLE 72.
When one of the spouses neglects his or her
duties to the conjugal union or commits acts which tend to bring
danger, dishonor or injury to the other or to the family, the
aggrieved party may apply to the court for relief.
Let us to Article 73 on the exercise of any legitimate
profession, occupation, business or activity without the consent of
the other.
The spouse may only object on exercise of such profession,
occupation, business or activity only on valid, serious and moral
grounds.
If it is the husband objects, he can be liable under RA 9262, if
the objection is not based on valid, serious and moral grounds.
The act of the husband in preventing the wife from engaging in
such activity shall constitute a violation of VAWC law, RA 9262.
ARTICLE 73.
Either spouse may exercise any legitimate
profession, occupation, business or activity without the consent of
the other. The latter may object only on valid, serious, and moral
grounds.
In case of disagreement, the court shall decide whether or
not:
(1) The objection is proper, and
(2) Benefit has accrued to the family prior to the objection or
thereafter. If the benefit accrued prior to the objection, the
resulting obligation shall be enforced against the separate
property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of
creditors who acted in good faith.
If an objection is proper, to whom shall the liability that would
arise by reason of such profession, occupation, business or activity
be charged? It would depend on when did the benefit accrue. If
the benefit accrued before the objection, it shall be charged to the
absolute community property or conjugal partnership. But if the
benefit accrued after the objection and the court has ruled that
the objection is proper, it can only be charged to the separate
property to the spouse who did not obtain consent. It becomes

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Karla Deles & Jazzie Sarona

the sole liability of the spouse who did not obtain consent if
the obligation accrued after the objection.
Then, lets go to the PROPERTY RELATIONS BETWEEN
THE HUSBAND AND WIFE.
The property relations between the husband and the wife
shall be governed foremost by marriage settlement executed
by the parties before marriage, in writing and signed by the
parties. Those are the 3 requisites for a valid marriage
settlement. That is an ante-nuptial agreement. It need not be
in a public instrument. It is sufficient that it is in writing,
made before the marriage and signed by the parties.
In the absence of the marriage settlement, it is to be
governed by the provisions of the Family Code, which is the
absolute community of property or if the property relations
agreed upon is void, then, the provisions of the Family Code
shall govern. They shall be governed by absolute community
of property.
The last is by the local customs.

ARTICLE 74.
The property relations between husband
and wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
ARTICLE 75.
The future spouse may, in the marriage
settlements, agree upon the regime of absolute community,
conjugal partnership of gains, complete separation of
property, or any other regime. In the absence of a marriage
settlement, or when the regime agreed upon is void, the
system of absolute community of property as established in
this Code shall govern.
When the property regime is void, then, it shall be
governed by absolute community of property.
The marriage settlement must be made before marriage
ARTICLE 76.
In order that any modification in the
marriage settlements may be valid, it must be made before
the celebration of the marriage, subject to the provisions of
Articles 66, 67, 128, 135 and 136.
Amendments made of the marriage settlement during the
marriage are void. If the marriage settlement is amended
during the existence of marriage, the amendment is null and
void.
There can be no separation of property during the
marriage except by judicial separation of property.
ARTICLE 79.
For the validity of any marriage settlements
executed by a person upon whom a sentence of civil
interdiction has been pronounced or who is subject to any
other disability, it shall be indispensable for the guardian
appointed by a competent court to be made a party thereto.
Article 79 is important in the sense that this refers to a
person who is under civil interdiction. He cannot execute a
marriage settlement, unless there is a guardian. And the
guardian must be made a party to the marriage settlement.
The requirement is indispensable.
We have the DOCTRINE OF IMMUTABILITY (? .. sorry
hindi ko maklaro and hindi ko mahanap kung ano talaga to )
of the property regime.
Regardless of the change in

nationality on the part of the husband or the wife, the original

property regime at the time of the marriage shall remain.
Article 81 is if the marriage is not celebrated.
ARTICLE 81.
Everything stipulated in the settlements or
contracts referred to in the preceding articles in consideration of a
future marriage, including donations between the prospective
spouses made therein, shall be rendered void if the marriage does
not take place. However, stipulations that do not depend upon the
celebration of the marriage shall be valid.
An example of which that does not depend upon the
celebration of the child is the recognition of a child as well as his
promise to give support to the child. Those do not depend upon
the celebration of the marriage.
Then, you have DONATIONS PROPTER NUPTIAS.
What are the formalities?
Under the Civil Code, donations propter nuptias are governed
by the Statute of Frauds, Article 1402, paragraph c.
This was enunciated by the Supreme Court in the case of
VALENCIA vs. LOCQUAIO (October 3, 2003).
VALENCIA vs. LOCQUIAO (Oct. 3, 2003)
FACTS: In May 1944, Herminigildo and Raymunda executed a
deed of donation propter nuptias which was written in the Ilocano
dialect, in favor of their son, respondent Benito and his
prospective bride, respondent Tomasa. The donees took their
marriage vows on June 4, 1944 and the fact of their marriage was
inscribed at the back of O.C.T. No. 18383.
Herminigildo and Raymunda died on December 15, 1962 and
January 9, 1968, respectively, leaving as heirs their 6 children.
With the permission of respondents Benito and Tomasa, petitioner
Romana Valencia took possession and cultivated the subject land.
When respondent Romanas husband got sick, her daughter
petitioner Constancia Valencia took over, and since then, has been
in possession of the land.
Benito and Tomasa registered the Inventario Ti Sagut with the
Office of the Register of Deeds of Pangasinan on May 15, 1970. In
due course, the original title was cancelled and in lieu thereof TCT
No. 84897 was issued in the name of the respondents Benito and
Tomasa.
In 1983, Benito filed a complaint seeking the ejectment of
Constancia from the subject property. Petitioners Romana and
Constancia alleged that the issuance of the transfer certificate of
title was fraudulent; that the Inventario Ti Sagut is spurious; that
the notary public who notarized the document had no authority to
do so, and; that the donation did not observe the form required by
law as there was no written acceptance on the document itself or
in a separate public instrument.
HELD: Unlike ordinary donations, donations propter nuptias or
donations by reason of marriage are those made before its
celebration, in consideration of the same and in favor of one or
both of the future spouses. The distinction is crucial because the
two classes of donations are not governed by exactly the same
rules, especially as regards the formal essential requisites.
Under the Old Civil Code, donations propter nuptias must be
made in a public instrument in which the property donated
must be specifically described. However, Article 1330 of the same
Code provides that acceptance is not necessary to the
validity of such gifts. In other words, the celebration of the
marriage between the beneficiary couple, in tandem with
compliance with the prescribed form, was enough to effectuate
the donation propter nuptias under the Old Civil Code.
Under the New Civil Code, the rules are different. Article 127
thereof provides that the form of donations propter nuptias are
regulated by the Statute of Frauds. Article 1403, paragraph 2,
which contains the Statute of Frauds requires that the contracts

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(2) Persons (Review) Atty. Galas Lectures : June 17, 18, 23, 24

Karla Deles & Jazzie Sarona

mentioned thereunder need be in writing only to be
enforceable. However, as provided in Article 129, express
acceptance is not necessary for the validity of these
donations. Thus, implied acceptance is sufficient.
It is settled that only laws existing at the time of the
execution of a contract are applicable thereto and not later
statutes, unless the latter are specifically intended to have
retroactive effect.5[46] Consequently, it is the Old Civil Code
which applies in this case since the donation propter nuptias
was executed in 1944 and the New Civil Code took effect
only on August 30, 1950.
As a consequence, applying Article 1330 of the Old Civil
Code in the determination of the validity of the questioned
donation, it does not matter whether or not the donees had
accepted the donation.
The validity of the donation is
unaffected in either case.
Even if the provisions of the New Civil Code were to be
applied, the case of the petitioners would collapse just the
same. As earlier shown, even implied acceptance of a
donation propter nuptias suffices under the New Civil Code.
With the genuineness of the donation propter nuptias and
compliance with the applicable mandatory form requirements
fully established, petitioners hypothesis that their action is
imprescriptible cannot take off.
Under the Family Code, the formalities on donations
propter nuptias will be the same as ordinary donations.
The requisites in order to have a valid donations
propter nuptias are:
1. before the celebration of the marriage
2. in consideration of the marriage
3. in favor of one or both of the future spouses.
Those are the 3 requisites.
Just like a marriage
settlement, it must be made before the celebration of the
marriage.
Under Article 83, what must be observed with respect to
donation propter nuptias.
ARTICLE 83.
These donations are governed by the rules
on ordinary donations established in Title III of Book III of the
Civil Code, insofar as they are not modified by the following
articles.
If what is given is a real property, it must be in a public
instrument and its acceptance must also be in a public
instrument.
If it is a personal property and the value exceeds P5,000,
it must be in writing.
Article 84 is donation in cases of donation of present
property. They cannot donate more than 1/5 of their present
property. If in excess, that is void.
If it involves donation of future property, it shall be
governed by the formalities of wills.
ARTICLE 84.
If the future spouses agree upon a regime
other than the absolute community of property, they cannot
donate to each other in their marriage settlements more than
one-fifth of their present property. Any excess shall be
considered void.
Donations of future property shall be governed by the
provisions on testamentary succession and the formalities of
wills.
ARTICLE 85.
Donations by reason of marriage of property
subject to encumbrances shall be valid. In case of foreclosure
5

of the encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be liable for
the deficiency. If the property is sold for more than the total
amount of said obligation, the donee shall be entitled to the
excess.
Under the Civil Code, one cannot donate a property for
donation propter nuptias if the property is encumbered. Now, in
the Family Code, if the property is encumbered, it can be a subject
of donation propter nuptias. But if the donation is not satisfied
and the property is not foreclosed, the donee spouses are not
liable for any deficiency. But in case of excess, the excess shall be
given to donee spouses.
Article 86 provides for the revocation of donation propter
nuptias.
ARTICLE 86.
A donation by reason of marriage may be
revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab
initio except donations made in the marriage settlements,
which shall be governed by Article 81;
So, if the marriage is void from the very beginning, there must
first be a judicial declaration of the nullity of the marriage in order
for the donor to revoke the donation propter nuptias.
This is not true if the marriage is not celebrated.
(2) When the marriage takes place without the consent of the
parents or guardian as required by law;
There no need for the annulment of the marriage. For as long
as no parental consent is obtained, the donor can revoke the
donation.
(3) When the marriage is annulled, and the donee acted in bad
faith;
Here, the donee is the author of the fraud or might have
exercised any of the vices of consent or is suffering from sexuallytransmissible disease and is concealed.
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
If you remember in Obligations and Contracts, if it is subject
to a resolutory condition, the happening of the condition
extinguishes the obligation.
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in
general.
And the last will be commission of acts of ingratitude as
provided in Article 765 of the Civil Code.
ARTICLE 87.
Every donation or grant of gratuitous advantage,
direct or indirect, between the spouses during the marriage shall
be void, except moderate gifts which the spouses may give each
other on the occasion of any family rejoicing. The prohibition shall
also apply to persons living together as husband and wife without
a valid marriage. (133a)
What would be moderate depends upon the financial capacity
of the spouses.
So, the gratuitous advantage may not be in the form of
physical gifts.
It may come in the form of a usufruct,
commodatum, waiver or compromise.

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(2) Persons (Review) Atty. Galas Lectures : June 17, 18, 23, 24

Karla Deles & Jazzie Sarona

There was this Bar Examination Question that was asked:

To circumvent Article 87, the wife gave to the son of the
husband and when the husband died, the wife demanded the
return of what has been given to the son. According to her,
that was given to her husband. Then, she could take it back.
But the answer there would depend if the son is already
married. If the son is no longer a minor, the donation is
already legal for all intents and purposes.
There is this case of:
ARCABA vs. TABANCURA (Nov. 22, 2001)
Francisco, owner of a certain parcel of land, became a
widower and lonely. So, he invited his niece, a cousin of the
niece and Arcaba to join him in his house. Later, the niece got
married and the cousin of the niece also left the house of
Francisco, leaving Francisco and Arcaba.
Subsequently, Francisco donated a parcel of land to
Arcaba. When Francisco died, the heirs of Francisco naturally
questioned the donation claiming that it is void because of the
last sentence of Article 87 says that the prohibition shall also
apply to persons living together as husband wife without a
valid marriage.
The defense of Cirila Arcaba was that the property was
donated to her because she took good care of him during his
lifetime. It would be impossible for Francisco to have sexual
intercourse with her because he was already very old. She
would go to his room because she would give him a massage.
But the Supreme Court did not buy the defense of Cirila.
The Supreme Court said that cohabitation means more
than sexual intercourse, especially when one of the parties is
already old and may no longer be interested in sex. At the
very least, cohabitation is the public assumption by a man
and a woman of the marital relation, and dwelling together as
man and wife, thereby holding themselves out to the public as
such.
At the very least, their public conduct indicated that
theirs was not just a relationship of caregiver and patient, but
that of exclusive partners akin to husband and wife.
The donation made by Francisco in favor of Cirila is void
under Article 87 of the Family Code.
Let us now
PROPERTY.

go

to

the

ABSOLUTE

(3) Property acquired before the marriage by either spouse who

has legitimate descendants by a former marriage, and the fruits as
well as the income, if any, of such property.
This is absolutely the property of the owner spouse.

Two of the hardest tests in life:

the patience to wait for the right moment &
the courage to accept whatever the outcome is )

COMMUNITY

What rules should apply to the absolute community

property? The rules on co-ownership shall apply suppletorily,
in all matters not provided for.
So, the rules on co-ownership shall apply suppletorily to
the absolute community property on all matters not provided
for in the Family Code.
What constitutes the absolute community property? All
the property of the spouses at the time of the celebration of
the marriage as well as all properties acquired thereafter.
But there are exceptions to the rule, as found in Article
92:
ARTICLE 92.
The following shall be excluded from the
community property:
(1) Property acquired during the marriage by gratuitous title
by either spouse, and the fruits as well as the income thereof,
if any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse;
however, jewelry shall form part of the community property;
Take note that jewelry is included, regardless of the type
of jewelry, whether it is the real one or costume jewelry
because there is no distinction there.

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