Persons and Family Relations (Partial Reviewer)

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.

Characteristics:
1. It is civil in character because it is established by the State independently of its religious aspect
2. It is an institution of public order and policy, governed by rules established by law and cannot be made inoperative by stipulation of parties
3. It is an institution of natural character, because one of its objects is the satisfaction of the intimate sentiments and needs of human beings

ORDINARY CONTRACTS	MARRIAGE
1. May be entered by any number of persons, whether of same or different sex	1. Entered by one man and woman only
2. The agreement of the parties have the force of law between them	2. It is the law which fixes the duties and rights of the parties
3. May be terminated by mutual agreement	3. Cannot be terminated by mutual agreement
4. Breach of ordinary contracts gives rise to action for damages	4. Breach of obligations of husband and wife does not give rise to such action

ESSENTIAL REQUISITES	FORMAL REQUISITES
1. Legal capacity of the contracting parties who must be a male and a female	1. Authority of the solemnizing officer
2. Consent freely given in the presence of the solemnizing officer	2. A valid marriage license except in the cases provided for in Chapter 2 of this Title
	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.

	ESSENTIAL/FORMAL REQUISITES
Absence	Void ab initio
Defect (essential requisite)	Voidable (Art 45)
Irregularity (formal requisite)	Shall not affect validity of marriage

AGE	STATUS
18	Age of Legal Consent
21	Age of Legal Capacity
18 – before 21	Needs Parental Consent
21 – 25	Needs Parental Advice
18 – 25	Needs Marriage Counseling

WHO MAY SOLEMNIZE MARRIAGE?

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.

FOREIGN MARRIAGES/DIVORCE

Article 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.

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.

MARRIAGES EXEMPTED FROM LICENSE REQUIREMENT

1. Articulo mortis or on point of death

Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be solemnized without necessity of a marriage license and shall remain valid even if the ailing party subsequently survives.

Art. 31. A marriage in articulo mortis between passengers or crew members may also be solemnized by a ship captain or by an airplane pilot not only while the ship is at sea or the plane is in flight, but also during stopovers at ports of call.

Art. 32. A military commander of a unit, who is a commissioned officer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military operation, whether members of the armed forces or civilians.

2. Marriages in isolated places or where there are no available means of transportation

Art. 28. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license.

3. Marriages among Muslims or among members of ethnic cultural communities

Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of marriage license, provided they are solemnized in accordance with their customs, rites or practices.

4. Marriages of those who have lived together as husband and wife for at least 5 years

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.

VOID AND VOIDABLE MARRIAGES

Void marriages not enumerated in Arts 35-38

1. Marriages where intent to marry is totally wanting

2. Marriages not solemnized in accordance with law (common-law marriages, proxy)

3. Marriages between same sex marriage

VOID	VOIDABLE
1. Can be attacked collaterally	1. Can be attacked only in a direct proceeding for annulment
2. May be questioned even after the death of one of the parties	2. Can no longer be attacked if one of the parties is dead
3. Cannot be ratified or confirmed	3. Generally made perfectly valid by ratification or confirmation, through continued cohabitation
4. The validity of a void marriage may be assailed by anyone if the question becomes material	4. Can generally be attacked only by a party to it
5. The action or defense to declare the nullity of a void marriage generally does not prescribe	5. Action to set aside a void marriage prescribes

VOID MARRIAGES	PROPERTY	CHILDREN
New Civil Code	The property acquired by either or both of them through their work or industry or their wages and salaries shall be governed by rules on co-ownership	They shall have the same status, rights, and obligations of acknowledged natural children
Family Code	A community property or conjugal partnership is formed and is dissolved and liquidated upon the declaration of nullity. *if either spouse contracted the marriage in bad faith, his or her share is forfeited in favor of the children or innocent spouse	Children are considered legitimate

VOIDABLE MARRIAGES	PROPERTY	CHILDREN
New Civil Code	A conjugal property arose, and if both spouses acted in good faith, each shall share equally in the same manner as in a valid marriage license. *If one of the parties acted in bad faith, he lost his share in such properties, except when the conjugal property came mostly or entirely from his work or industry	Children are considered legitimate
Family Code	A community property or conjugal partnership is formed and is dissolved and liquidated upon the declaration of nullity. *if either spouse contracted the marriage in bad faith, his or her share is forfeited in favor of the children or innocent spouse	Children are considered legitimate

Art. 35. The following marriages shall be VOID FROM THE BEGINNING:

1. Those contracted by any party below eighteen years of age even with the consent of parents or guardians;

2. Those solemnized by any person not legally authorized to perform marriages unless such marriages were contracted with either or both parties believing in good faith that the solemnizing officer had the legal authority to do so;

3. Those solemnized without license, except those covered the preceding Chapter;

4. Those bigamous or polygamous marriages not failing under Article 41;

5. Those contracted through mistake of one contracting party as to the identity of the other; and

6. Those subsequent marriages that are void under Article 53.

PSYCHOLOGICAL INCAPACITY

Art. 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.

INCESTUOUS MARRIAGES

Art. 37. Marriages between the following are incestuous and void from the beginning, whether 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.

VOID FROM THE BEGINNING FOR REASONS OF PUBLIC POLICY (Art 38)

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

PRESCRIPTION PERIOD FOR DECLARATION OF NULLITY OF MARRIAGE

Art. 39. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. However, in case of marriage celebrated before the effectivity of this Code and falling under Article 36, such action or defense shall prescribe in ten years after this Code shall taken effect

PRESUMPTION OF DEATH	New Civil Code	Family Code
For purpose of remarriage	7 years	4 years
Danger of death	4 years	2 years

PRESUMPTIUON OF DEATH

Art. 41. A marriage contracted by any person during 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 has 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.

REAPPERANCE OF ABSENT SPOUSE

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

EFFECTS OF TERMINATION OF SUBSEQUENT MARRIAGE

Art. 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;

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 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.

Art. 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.

GROUNDS FOR ANNULMENT (Voidable)

Art. 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;

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 test is W/N the party at the time of marriage was capable of understanding the nature and consequences of the marriage

- Mere mental weakness if does not deprive the party of capacity to understand the consequences of what he is taking does not affect validity of marriage

- Intoxication is a ground

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;

- See next Art

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;

- The duress of force must be one as to prevent the party from acting as a free agent, his will being destroyed by fear or compulsion

5.    That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or

a. Must exist at the time of marriage

b. That such incapacity continues to the time the case for annulment is being tried

c. Incurable

d. It must be unknown to the other party

6.    That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable.

                        a. STD must exist at the time of marriage

b. STD is serious

c. Incurable

d. Unknown to the other party when the marriage was solemnized

Marriages not subject to ratification:

1. One of the spouses is incurably impotent

2. One of the spouses has an incurable STD

3. Sane spouse marries an insane spouse without knowledge of the insanity

FRAUD

Art. 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;

3.    Concealment of sexually transmissible disease, regardless of its nature, existing at the time of the marriage; or

4.    Concealment of drug addiction, habitual alcoholism or 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.

ACTION FOR ANNULMENT OF MARRIAGE

Art. 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 or guardian or person having legal charge of the minor, at any time before such party has reached the age of twenty-one;

2.    For causes mentioned in number 2 of Article 45, by the same spouse, who had no knowledge of the other's insanity; or by any relative or 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.

NATURE OF MARRIAGE	EFFECTS IN CHILDREN	EFFECTS ON PROPERTY
Valid	Legitimate	No marriage settlement, ACP
Voidable (under Art 45)	Legitimate	Art. 50
Void under Art 36	Legitimate	Art. 147
Void under Arts 35-38	Illegitimate	Art. 147 or Art 148
Article 53	Legitimate	Art. 147
Article 40	Illegitimate	Art. 50
Article 42	Legitimate	Art. 50
Terminated by death	Legitimate	Arts. 102 & 103

ARTICLE 147	ARTICLE 148
The parties must be in state of cohabitation or living together openly as husband and wife
No absolute community or conjugal partnership of property is formed between the parties
The common property of the parties shall be owned in common & governed by the rules on co-ownership
Property of each that is not co-ownership will belong to each party separately & exclusively
Bad faith of a party results in forfeiture of his/her share
Parties are capacitated to marry each other but are not married, or married but void ab initio	Parties may have no capacity to marry or suffering to some legal impediment to marry each other
Parties live with each other exclusively	One or both parties may have an existing valid marriage
The wages & salaries of the parties & the property acquired by both of them through their work are owned in common in equal shares	There must be actual joint contribution of money, property, industry, in the acquisition of property in order to be owned in common, & the share of each party is in proportion to his/her contribution
Property acquired during the period of cohabitation is presumed to be obtained by their joint effort, work, or industry	No such presumption because there must be actual joint contribution
Efforts in the case and maintenance of the family & household are regarded as contribution	Actual contribution required
Presumption: The acquisition of property is by joint efforts, thus, owned in equal shares	Presumption: Equality of contribution if the actual contribution not proved, no co-ownership & no presumption of equal shares.