Lecture No. 3
CIVIL LAW REVIEW I
LECTURE SERIES
Articles 27 to 54, Family Code of
the Philippines
For: University of
San Agustin School of Law
General Luna Street,
Iloilo City
SY 2016-2017, 1st
Semester
By: Atty. Eduardo T. Reyes, III
Chapter 2.
Marriages Exempted from License Requirement
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. (72a)
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. (72a)
Art. 29. In the cases provided for in the two
preceding articles, the solemnizing officer shall state in an affidavit
executed before the local civil registrar or any other person legally
authorized to administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio or
barangay, is so located that there is no means of transportation to enable such
party to appear personally before the local civil registrar and that the officer
took the necessary steps to ascertain the ages and relationship of the
contracting parties and the absence of legal impediment to the marriage. (72a)
Art. 30. The original of the affidavit required in
the last preceding article, together with the legible copy of the marriage
contract, shall be sent by the person solemnizing the marriage to the local
civil registrar of the municipality where it was performed within the period of
thirty days after the performance of the marriage. (75a)
Art. 31. A marriage in articulo mortis between
passengers or crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in flight, but
also during stopovers at ports of call. (74a)
Art. 32. A military commander of a unit, who is a
commissioned officer, shall likewise have authority to solemnize marriages in
articulo mortis between persons within the zone of military operation, whether
members of the armed forces or civilians. (74a)
Art. 33. Marriages among Muslims or among members
of the ethnic cultural communities may be performed validly without the
necessity of marriage license, provided they are solemnized in accordance with
their customs, rites or practices. (78a)
Art. 34. No license shall be
necessary for the marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal impediment to
marry each other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths. The
solemnizing officer shall also state under oath that he ascertained the
qualifications of the contracting parties are found no legal impediment to the
marriage. (76a)
-“Cohabitation for five
years”. –
-Proof of our system being in
part a common law system which recognizes cohabitation or living-in as if
husband and wife.
Requisites:
1.the parties must live as
such for at least five years characterized by exclusivity, and continuity that
is unbroken.[1]
2. They must be without any
legal impediment to marry each other.
The falsity or perjured
affidavit goes into the lack of marriage license and not merely an
irregularity.
Query: May a husband who left
his wife and live exclusively with his mistress for five years, marry his
mistress after the death of his wife?
In other words, must the
condition of being devoid of any legal impediment to marry each other, likewise
continuous and unbroken for the same five year time-frame?
Chapter 3. Void
and Voidable Marriages
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.
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. (As amended by Executive Order 227)
Rule: Good or bad faith in the involvement by a party to a marriage is
immaterial.
Exceptions:
1. Article 35 (2)- either of
the contracting parties is in good faith in his/ her belief that the
solemnizing officer has the authority to solemnize a marriage
-some form of
misrepresentation employed.
According to Justice Caguiao:
This is to prevent unscrupulous chauvinistic males from deceiving the girls,
because they were made to believe that they are going to be married when
marriage is not what they want. X x x They ask a friend, a notary public, to
appear as if he were the solemnizing officer.
Dr. Arturo Tolentino: There
should be a distinction between : ignorance of the law” and “mistake of fact”.
2. Article 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.
-Psychological incapacity
Deep lasting emotional scar
and emotional disregulation
Incapability as opposed to
mere refusal, to comply with essential marital obligations
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. (81a)
Art. 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. (82)
Amended Art. 39. The action or defense for the declaration of absolute
nullity of a marriage shall not prescribe. (Amended by Executive Order No. 227 dated July 17, 1987 and further
amended by Republic Act No. 8533 dated February 23, 1998)
-Judges denying petitions for nullity founded on Art. 36 simply because
the parties had endured living together for many years and had several
children.
Who can file the petition for declaration of
nullity of a marriage?
1. Indirect/ Collateral Attack. Affirmative defense in cases involving
support, determination of heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property regime or criminal case for
bigamy for that matter.
-Court may pass upon the validity of the marriage even if the suit was
not directly instituted to assail the validity of marriage
2. Direct Attack. Article 40. “For purposes of
remarriage”.
-Only the husband
or the wife can file a court
case to directly attack the validity of their marriage. (S.C. Resolution A.M.
No. 02-11-10-SC). “Sec. 2. Petition for
declaration of absolute nullity of void marriages. – (a) Who may file.- A
petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife.”
-Fujiki v.
Marinay[2]. “Only the parties in a subsisting marriage can file a case for
declaration of nullity of a subsequent bigamous marriage. The other “spouse” in
a subsequent marriage cannot file the case considering that his or her marriage
is void”.
Art. 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. (n).
-
For purposes of remarriage
-Bigamy
-Scenario 1. 1st marriage is Void between A
& B. B marries C, without obtaining a judicial declaration of nullity of
marriage.
Scenario 2. Ist marriage is Valid between A & B. B
marries C without obtaining a judicial declaration of nullity of marriage.
Is the second marriage valid? Yes in both cases. But on
which ground?
Are B & C guilty of criminal Bigamy?
Mercado v.
Mercado[3]. Justice Vitug dissenting: While the accused may have
violated Article 40, such violation is not a bar in invoking the nullity of the
first marriage because Article 40 merely aims to put certainty as to the void
status of the subsequent marriage and is not aimed as a provision to define
bigamy under the Family Code or criminal bigamy under the Revised Penal
Code.
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. (83a)
-
See Republic v. Bermudez[4], order of the trial court
granting petition for judicial declaration of presumptive death is immediately
final and executory.
-
Summary Judicial Proceedings in
Family Court
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. (n)
Reappearance
-See Social Security System v.
Jarque Vda. De Bailon. “such absentee’s mere reappearance, even if made known
to the spouses in the subsequent marriage, will not terminate such marriage”.
-SSS v. Educe A. Azote[5] . “death of the first wife does
not legitimize the status of the second wife who entered into the marriage void
subsequent bigamous 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. (n)
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. (n)
-Valid bigamous marriage
-Both parties are in GF- valid
-One of the parties in GF, valid
-Both parties in BF, subsequent
marriage is Void
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;
(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;
(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;
(5) That
either party was physically incapable of consummating the marriage with the
other, and such incapacity continues and appears to be incurable; or
(6) That
either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable. (85a)
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. (86a)
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 Articles 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. (87a)
Art. 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. (88a)
Art. 49.
During the pendency of the action and in the absence of adequate provisions in
a written agreement between the spouses, the Court shall provide for the
support of the spouses and the custody and support of their common children.
The Court shall give paramount consideration to the moral and material welfare
of said children and their choice of the parent with whom they wish to remain
as provided to in Title IX. It shall also provide for appropriate visitation
rights of the other parent. (n)
Art. 50. The
effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the
proper cases to marriages which are declared ab initio or annulled by
final judgment under Articles 40 and 45.
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 third 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.
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.
Art. 51. In
said partition, the value of the presumptive legitimes of all common children,
computed as of the date of the final judgment of the trial court, shall be
delivered in cash, property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such matters.
The children
or their guardian or the trustee of their property may ask for the enforcement
of the judgment.
The delivery
of the presumptive legitimes herein prescribed shall in no way prejudice the
ultimate successional rights of the children accruing upon the death of either
of both of the parents; but the value of the properties already received under
the decree of annulment or absolute nullity shall be considered as advances on
their legitime. (n)
Art. 52. The
judgment of annulment or of absolute nullity of the marriage, the partition and
distribution of the properties of the spouses and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate civil
registry and registries of property; otherwise, the same shall not affect third
persons. (n)
Art. 53.
Either of the former spouses may marry again after compliance with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.
Art. 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.
Comments:
1. Summary of Rules on Status of
children under a Void Marriage:
Rule- Children born during the
subsistence of a void marriage are illegitimate.
Exceptions: a. Article 36; b.
Article 41; c. Void Marriage solely because of non-observance of Articles 40,
52 and 53.
-Sec. 22 (b), Rule On Declaration of Absolute Nullity of Void Marriages
and Annulment of Voidable Marriages (Supreme Court En Banc Resolution A.M. No.
02-11-10-SC)
x xx
“Except in the case of children under Articles 36 and
53 of the Family Code, the court shall order the Local Civil Registrar to issue
an amended birth certificate indicating the new status of the children
affected”.
“Insofar as void marriages are concerned, paragraphs
(2), (3), (4), and (5) of Article 43 exceptionally apply only to void
subsequent marriages that occur as a result of the non-observance of Article
40.Specifically, they apply to the subsequent void marriage contracted by a
spouse of a prior void marriage before the latter is judicially declared void.”
“This is the clear mandate of Article 50. In this case,
though the subsequent marriage is void, the property shall be liquidated as if
there is a conjugal partnership of gains or absolute community property.”
“In all other cases of a void marriage,other
than the void subsequent marriage that occurs as a result of the non-observance
of Article 40, the property regime shall be governed by the rule on
co-ownership provided for in Articles 147 and 148, as the case may be, and not
the conjugal partnership of gains or the absolute community of property. Hence,
in these cases where Article 147 or 148 will apply, the property regime shall
be liquidated pursuant to the ordinary
rules on co-ownership pursuant to the Civil Code provided they are no
contrary to the family Code”.
-Questions: 1.If a marriage is declared void under
Article 36 (Psychological Incapacity) and it becomes final, should the
liquidation of the of the Property Regime be done in the same family court
which rendered the decision?
2. May the ENTRY OF JUDGMENT be issued without a.
registration of the partition and distribution of the properties of the spouses
in the Civil registry where the marriage was celebrated and in the Civil
registry of the place where the Family Court is located? b.And the delivery of
children’s presumptive legitimes in cash, property, or sound securities?
-See Articles 102 (6) for liquidation of Absolute
Community Property and 129 (9) for Conjugal Partnership of Gains
-Sec. 21. Rule On Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable Marriages (Supreme Court En Banc
Resolution A.M. No. 02-11-10-SC)
“Sec. 21. Liquidation, partition and distribution, custody, support of common
children.
Section 21. Liquidation, partition and distribution, custody,
support of common children and delivery of their presumptive legitimes. - Upon entry of the judgment granting the petition, or, in case of
appeal, upon receipt of the entry of judgment of the appellate court granting
the petition, the Family Court, on motion of either party, shall proceed with
the liquidation, partition and distribution of the properties of the spouses,
including custody, support of common children and delivery of their presumptive
legitimes pursuant to Articles 50 and 51 of the Family Code
unless such matters had been adjudicated in previous judicial proceedings.
Section 22. Issuance of Decree of Declaration of Absolute
Nullity or Annulment of Marriage." (a) The court shall issue the Decree after;
(1) Registration of the entry of judgment granting
the petition for declaration of nullity or annulment of marriage in the Civil
Registry where the marriage was celebrated and in the Civil Registry of the
place where the Family Court is located;
(2) Registration of the approved partition and
distribution of the properties of the spouses, in the proper Register of Deeds
where the real properties are located; and
(3) The delivery of the children's presumptive
legitimes in cash, property, or sound securities.
(b) The court shall quote in the Decree the
dispositive portion of the judgment entered and attach to the Decree the
approved deed of partition.
Except in the case of children under
Articles 36 and 53 of the Family Code, the court shall order the Local Civil
Registrar to issue an amended birth certificate indicating the new civil status
of the children affected.
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