PERSONS AND FAMILY RELATIONSDean Augusto K. AligadaI.LAWSLaw, defined-Snchez Romn- Law is the rule of conduct, just and obligatory, it is formulated by the legitimate authority which is intended to be for the common good or benefit.-Competent Authority- Congress/Parliament Law making body.EquitySupreme Court- Equity is justice outside legality, but does not supplement the law but very often as it happen, equity supplements the law. It does not take the place of law.-is not promulgated, it emanates from natural law-not legislated, applies only from the absence of law-Laws will always prevail, because equity is always grounded as precepts of conscience instead of human positive law.-Whenever there is an applicable law, equity does not apply.II. DISTINCTION BETWEEN CIVIL LAW AND CIVIL CODECivil Law-Snchez Romn- Civil Law is a mass of precepts that determines and regulates the relations of authority existing among members of the family for the protection of private interest.-Governs relations existing between man and man as members of the societyCivil Code-Codification of the Civil Laws-Not all Civil Laws are found in the Civil Code, some came after the Civil Code.-Contains Laws that are Civil in characterSpecial Civil Laws-Not included in the Civil Code-Laws which are civil in nature but are not included in the Civil Code.-Example: The Family Code-Civil in Character and used to be found in the Civil Code-Subdivision Law, Condominium LawCIVIL CODE OF THE PHILIPPINESARTICLE 1This act shall be known as the Civil Code of the PhilippinesSpanish Civil Code of 1889- Forerunner of the New Civil Code, preceded the New Civil CodeDecember 7, 1889- Date of effectivity (as published in the Gaceta De Manila) of the Spanish Civil Code which is supported by a Supreme Court decisionNovember 17,1889-Completion of publication of the Spanish Civil Code 10 days before December 7,1889The New Civil Code of the Philippines-Became a law by act of congress-June 18,1949, RA 386 -Date of Approval-August 30, 1950- New Civil Code took effect, Spanish Civil Code ceased to take effect.Family Code of the Philippines- Became a law by executive orderARTICLE 2 Laws shall take effect after 15 days of publication in the Official Gazette unless it is otherwise provided. This law shall take effect 1 year after such publicationTaada vs Tuvera To compel the Malacaang to bring to the public the publication of the secret decrees violative of the Art 2 of the Civil Code.Commonwealth Act 638 AN ACT TO PROVIDE FOR THE UNIFORM PUBLICATION AND DISTRIBUTION OF THE OFFICIAL GAZETTE Supreme Court cited, mentioned laws of general application and laws of local applicationPenal laws- publication is a must. Publication is part of DUE PROCESS2 Kinds of Notice1. Actual Notice-Notice through telling (impossible)2. Constructive Notice- notice through publication (this is what the law requires)ARTICLE 3 Ignorance of the law excuses no one from compliance therewith.The law refers to1. Domestic laws2. Prohibitory laws3. Mandatory lawsPermissive and Directory Laws- Need not be subject to Article 13Based on the Principles of:1.Necessity2. ExpediencyARTICLE 4 Laws shall have no retroactive effect, unless contrary is providedRetroactive Law- intended to affect transactions which occurred or rights which accrued before it became operativeProspective Operation- Laws are to be construed as having only a prospective operation.Exceptions to the General Rule: Laws may be given retroactive effect if;1. It provides for its retroactivity2. Penal Laws favourable to the accused3. If the law is procedural4. When law is curative5. When it creates substantial rightsProcedural Law/Remedial Law- Retroactive application does not violate any rights.ARTICLE 5 Acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law authorizes their validity.Mandatory Laws- commands that something must be done.Prohibitory Laws- commands that something must not be done.Permissive Laws- commands what it permits to be done.ARTICLE 6 Rights may be waived unless waiver is contrary to law, public order,policy, morals, or good customs or prejudicial to a 3rd person with a right recognized by law2 kinds of rights: Personal rights-right over a specific thing with definite positive subject against whom you can enforce the right, it is enforceable against a specific person. Rights- Without definite specific subject, enforceable generallyDifference between a Right and an Obligation Rights- connotes power, it can be waived. Those who dont exercise it waives his rights. Obligations- Duty or submission, it cannot be waivedRenunciation of waiver Relinquishment of a known right with both knowledge of its existence and an intention to relinquish it.ARTICLE 7 Laws are repealed only by subsequent ones and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary.The ways which laws may cease to take effect1. Temporarily2. PermanentlyTemporarily Example: Moratorium Laws After the Second World War, many persons are left without jobs, obligations became due. A law was passed suspending obligations.Permanently (2 kinds) Permanently due to intrinsic causes Due to intrinsic causes, expiration of laws, life-span of a law. Cessation is permanent and is based on intrinsic causes expiration. Congress can re-enact the law when it expires.

Extrinsic due to extrinsic causes Repeal of a law- law may cease to take effect permanently 2 kinds of repeal Expressed repeal Implied repealExpressed Repeal Express provision of a law terminates a prior law, expressed means provided by lawImplied Repeal Takes place when theres a clash of provisions of laws Example: Law 1 repealed by Law 2 Law 2 repealed by Law 3 Q: What is the effect of the repeal on Law 1? Depends on the repeal of law 1, repeal of law 2 will not revive law by expressed repeal.-Repeal of law 2 will revive law 1 unless will provide otherwise by implied repeal.General laws Wider coverageSpecial Law Particular or specific coverage

Conflict between a general and a specific law Effect will depend on which law was enacted first. Special law which was enacted after the general law will prevail, no repeal will take effect. If a general law was enacted after the special law, special law will remain. There will be no repeal except if there should exist a clear and irreconcilable conflict between the 2 laws. Special law-will be absorbed by the general law, or there may be a repeal.ARTICLE 8 Judicial decisions applying or interpreting the laws or the constitution shall form a part of the legal system of the Philippines.Judicial decisions Refers only to the decisions of the Supreme Court. Does not include decisions of lower courts. Shall form part of the laws of the landRoy vs CA Supreme Court ruled judicial decisions are not laws Supreme court decisions are not covered by article 2 Decisions can take effect without publication It is the duty of all lawyers to keep abreast over the decisions of the supreme court.ARTICLE 9 No judge or court shall decline to render judgement by reason of the silence, obscurity, or insufficiency of the laws.Q: When a case is filed before a court, what is the duty of the court?A: The duty of the court is to render judgement on the caseQ: How should a court decide on the case?A: Courts should decide in accordance with existing applicable lawsQ: If applicable law is unjust, how do the court decide the case?A: The court must decide on the basis of the said unjust law. The mere fact that the applicable law to a given case appear to be unjust, it does not give the court an option to not comply with the laws. As long as it is not repealed, it must still be followed.Dura lex sed lex- no matter how harsh the law may be, it is still the law.Q: Can a court in deciding a case apply customs and traditions when it makes its decision?A: The answer to that question must be qualified if its civil or criminal in character-In case of silence or insufficiency of a law, judgement can be rendered on the basis of customs and traditions but only if the case is civil in nature.Exceptions: Penal lawsAn act can be criminal if there is a law that makes it criminalOnly judgement of ACQUITTAL or DISMISSAL can be rendered in criminal cases.ARTICLE 10 In case of doubt in the interpretation or application of laws, it is presumed that the law making body intended right and justice to prevailARTICLE 11 Customs which are contrary to law, public order, public policy shall not be countenanced.ARTICLE 12 A custom must be proved as a fact according to the rules of evidence.Customs-rule of conduct formed by repetition of acts uniformly observed as a social rule, legally binding and obligatory.General Customs- practiced and observed throughout the country, no need to present as a fact,Local Customs-needs to present proof of existence and prevails only in absence of general customsRequisites in application of customs1. Plurality of acts, various resolutions of a juridical question raised repeatedly in life.2. Uniformity or identity of acts or various solutions to the juridical questions3. General practice by a great mass of a social group.4. Continued performance of these acts for a long period of time.5. General conviction that the practice corresponds to a juridical necessity or that is obligatory.6. Practice must not be contrary to law, morals or public order.ARTICLE 13 When the laws speak of years, months, days or nights, it shall be understood that years are of three hundred sixty-five days each; months, of thirty days; days, of twenty-four hours; and nights from sunset to sunrise. If months are designated by their name, they shall be computed by the number of days which they respectively have.In computing a period, the first day shall be excluded, and the last day included.Computation of periods Contains two paragraphs 1st paragraph general rule 2nd paragraph- exceptions to the general rule.Exclude the first include the last *365 days-year30 days in a month regardless of the monthNight time- sunset to sunriseDays-24 hoursSecond Paragraph- when months are designated by name the 1st paragraph should not apply. The complete number of days in a month must be counted.Q: Can you apply article 13 in counting the age of a person?A: Yes, The SC said yes, Art 13 can be applied in counting the age of a personQ: Can you apply Art 13 in counting the period of pregnancy of a woman?A: Never, Art 13 is not applicable, because nobody knows when the pregnancy of a woman begins.PRINCIPLE OF PRIVATE INTERNATIONAL LAW-incorporation in the Civil Code, Articles 14, 15,and 16ARTICLE 14 Penal laws and those of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory, subject to the principles of public international law and to treaty stipulationsThe law refers to: Penal Statutes Penal laws and laws of national security and safetyQ: To whom does Art 14 apply?A: It applies to all who lives or sojourn within Philippine territoryPenal laws- No teeth beyond Philippine territoryARTICLE 15 Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.Personal Statutes Laws involving family rights and duties, conditions, status, and legal capacity. Nationality Theory Basis of civil laws and personal statutes National law governs a persons capacity Capacity-determined by a persons national lawARTICLE 16 Real property as well as personal property is subject to the law of the country where it is stipulated. However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.Article 16- The law on property2 paragraphs1.general rule Real and personal properties shall be governed by the law of the place which the property is located. Real properties House- immovable property Personal Properties Cars,stocks- movable propertyLex Rei Sitae Real and personal properties shall be governed by the law of the place which the property is located. It will apply for as long as the owner of the properties is alive. If the owner dies, the principle no longer applies2.Exception to the general rule Should the owner dies, his property is not covered by Lex Rei Sitate In case of death of the owner, succession, the properties shall be governed by the national law which governed the person who had died.Testamentary/ Estate Succession Pursuant to a will secluded by the person who has died.Intestate/Legal succession Kind of succession where no will was prepared by the person who died The provision does not apply in its intrinsic validity. Miciano vs Breno Breno a citizen of turkey who had properties in the Philippines Executed a will provided that Philippine laws shall govern his properties (legacies) to be given to his friends Device-real property Anyone who will disagree to his testimony will lose the gifts. The testimony was void, in violation of the Art 16 of the civil code 2nd paragraphAznar vs Christensen Edward Christensen a citizen of California came into the Philippines during the American occupation. Fell in love with Campo-Redondo a Filipino but did not married her and had two children Helen and Lucy Christensen Helen was not recognized by her father but by judicial decree she was his daughter Edward gave Lucy the bulk of the estates on a will, while Helen was left with a legacy of 300 pesos. American National law (California law) governs the property of Christensen California law in conflict with Philippine law in governing the estate, the california law follows the domiciliary theory while Philippine laws follows the nationality theory. Supreme Court decided to stop the conflict and applied the RENVOI DOCTRINE in case of conflict, the former law shall prevail. Philippine law prevailed over the properties of Christensen.

Bellis vs Bellis Amos Bellis- citizen of texas had a family in the Philippines Executed 2 wills 1st-his texas properties should be disposed by texas law, 2nd-Philippine properties should be disposed by Philippine law SC ruled that, Art 16 should apply, Texas law does not recognize illegitimate children to be given properties upon succession. Renvoi doctrine was invoked by his children but the SC ruled that art 16 should apply because there was no conflict between Phil and texas laws.ARTICLE 17 The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. 1st paragraph formal validity (extrinsic validity) of wills, contracts, and other properties does not apply to Intrinsic validity.Q: What will govern the extrinsic validity of the contracts, wills?A: The law of the place where the contracts or wills are executed.Q: Is the provision absolute?A: 2nd and 3rd paragraphs are the exception. 2nd paragraph The will, contract or other public instrument is executed before consular or diplomatic officials of the republic of the Philippines in a foreign country, then the forms and solemnities prescribed by Philippine law shall be observed. If the instrument in question is executed before a diplomatic or consular department of the Philippines in a foreign country, what will govern is the Philippine law. Principle of Extraterritoriality- doctrine that governs art 17.3rd paragraph Prohibitive laws Lex Voluntatis- law that has been voluntarily agreed upon by the parties to govern the solemnities and contracts. If no law is agreed upon- If parties is of same nationality, it will be their national law. If theyre of different nationality, the nature of the agreement will determine what law shall govern. The law of the domicile should be applied. Intrinsic validity Law agreed upon the parties of same nationality, if none, it will be governed by their national law. If parties are not of the same nationality and no law was agreed upon, then the law of the place where it was executed shall govern.ARTICLE 18 In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code

II. PERSONSPerson Any being susceptible of rights and obligations2 kinds of persons

1.Natural2.Juridical

Natural Persons Human beings, created by God. Can do anything that is not contrary to lawJuridical Persons Artificial beings, created by law Depends on the law who to give juridical capacity Susceptible of rights and obligationsARTICLE 37 Juridical capacity, which is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. Capacity to act, which is the power to do acts with legal effect, is acquired and may be lost.Kinds of Capacity1. Juridical Capacity Co-exists and is inherent in every natural person Fitness to be subject of legal relations Static condition Cannot be limited nor restricted It is inherent and ineffaceable Only lost through death2. Capacity to Act Dynamic Power to give life to juridical acts Not existing in all men Requires intelligence and volition Can be lost in other circumstances Limited and restricted Power to do acts with legal effects It is different from juridical capacityPersonality Aptitude to be the subject active and passive of juridical relations Begins at birth A conceived child can be given personality even before it is born: On the ff conditions: For beneficial purposes That it will be born later in accordance with lawKinds of Personalities:1. Actual/Permanent- A born child, those born in accordance with law and begins on the moment of birth.2. Temporary/ presumptive- a conceived child, it begins from the moment of conception.

Restrictions on the capacity to act:ARTICLE 38. Minority, insanity or imbecility, the state of being a deaf-mute, prodigality and civil interdiction are mere restrictions on capacity to act, and do not exempt the incapacitated person from certain obligations, as when the latter arise from his acts or from property relations, such as easements. (32a)ARTICLE 39 The following circumstances, among others, modify or limit capacity to act: age, insanity, imbecility, the state of being a deaf-mute, penalty, prodigality, family relations, alienage, absence, insolvency and trusteeship. The consequences of these circumstances are governed in this Code, other codes, the Rules of Court, and in special laws. Capacity to act is not limited on account of religious belief or political opinion. A married woman, twenty-one years of age or over, is qualified for all acts of civil life, except in cases specified by law. (n)ARTICLE 38 Minority Insanity Imbecility State of being deaf, mute Prodigality Civil interdictionARTICLE 39Circumstances that modify or limit the capacity to act Age Imbecility Penalty State of being deaf/ mute Prodigality Family relations Alienage Absence Insolvency Trusteeship

A married woman- 21 yrs of age or over, qualified for all acts of civil life except in cases provided by lawArticles 38 and 39- Circumstances that compels law to suspend the capacityIncapacitated persons-exempted from certain obligations.Minority-Limited capacity to act.Rights of a Natural and Juridical person Both of them has rights, but the rights are not the same. A natural person can do anything as long as it is not contrary to law A juridical person can only do things provided by lawARTICLE 40 Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a)ARTTICLE 41 For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)ARTICLE 42 Civil personality is extinguished by death. The effect of death upon the rights and obligations of the deceased is determined by law, by contract and by will. (32a)ARTICLE 43 .If there is a doubt, as between two or more persons who are called to succeed each other, as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same; in the absence of proof, it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. (33)Article 40 Birth determines personality Actual/permanent personality

Article 41 The child had an intrauterine life of at least 7 months and it must be alive at the time after it is delivered from the mothers womb.Intrauterine life- Life of a child inside the mothers womb.2nd sentence of Article 41 Intrauterine life of less than 7 months, it should not die and survive within 24 hours to be considered born in accordance with law. Complete delivery- complete separation from the mother, time of cutting of the umbilical cord Kinds of deaths Accidental Death Incidental/Criminal death Natural death Viability- capability to live/ survive, not required by law.GELUZ vs CA Article 41 does not apply to abortion cases A fetus is not a person it has no personality yet.III. THE FAMILY CODEFamily Law-, taken out of the civil code and moved in the family code Q: How did the civil code became a law?A: By congressional actFamily Code Became a law by executive fiat, never passed congress, because congress was abolished when the family code became law by executive order. By President Corazon Aquino exercising both legislative and executive powers.

Article 4 Civil Code Laws shall have no retroactive effect unless otherwise provided. Effectivity of the Family code is by EXPRESSED PROVISION this law shall have retroactive effect. Retroactive Statute- by expressed provision is provided by the last provision of the family code. Is retroactivity absolute? No, refer to the last article of the FC art 256 General rule: There shall be no retroactive effect in the case of the Family Code, but by expressed provision it is retroactive, the exception is that it shouldnt impair previous rights, acquired, or vested in the civil code.MarriageARTICLE 1 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, incidents, are governed by law and not subject to stipulation except that the marriage settlements may to a certain extent fix the property relations during the marriage.Law on Marriage Civil Code- marriage is not an ordinary contract (negative definition) Family code-marriage is a special contract (positive definition) Civil code- bad definition, we define what it is not what it is not.

Q:Why is it that marriage is a special contract?A:Because only a man and a woman can enter in marriage, difference in sex is expressly provided in the family code.Family code Retroactive statute but not absolute Should not impair rights vested before the effectivity of the Family CodeAct 3613 The law on marriage Became effective December 4, 1929 Took effect 6 months Requisites of marriage Legal Capacity of contracting parties Consent freely givenNew Civil Code Provisions on act 3613 were carried out in the civil code Increased the requisites of marriage Legal capacity Consent freely given Marriage license Authority of solemnizing officersGood faith marriages- abolished under the civil code through the inclusion of the authority of a solemnizing officer as an essential requisite of marriageFamily Code Requisites of marriage were also changed, requisites divided into 2 Essential and Formal requisites

Essential requisites 1.Legal capacity2.Consent freely givenFormal requisites1. Marriage license except in marriages under chapter 22. Authority of solemnizing officer3. Marriage ceremony

3 kinds of marriages1. Valid2. Void3. VoidableArticle . 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)Legal Capacity of the contracting partiesArt. 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) What determines legal capacity? Sex (Article 5 Difference in sex) Heterosexual marriage Philippines- Does not recognize homosexual marriages Age Determines the capacity to marry Civil Code and Act 3613 Marrying age 16 Male 14-FemaleWhy is there a difference in age?Because females age faster because they give birth. The males are the one who carries the burden of the family, the family depends on him.Family Code -1988Chose to adopt a uniform age for both of the parties18 marrying age for both sexes1989 (Lina Law)-Joey Lina- authored RA 6809 which reduced the age of majority to 18 yrs-A minor can no longer contract marriage-Modified the law on emancipation in the family code-Emancipation-to releaseEmancipation can take place in 3 ways (Civil Code)1. By law- attaining the age of majority2.By marriage3.By agreement between parent and childBy Law-Age of majority- emancipation-Civil Code and Family code- release from parental authority-Not an absolute releaseMinors cannot sell real properties w/o parental consentMinors cannot borrow money w/o parental consentBy marriageCivil Code and Family code- minors can contract marriage with parental consentBy agreement between parent and childChild must not be less than 20Consent- is necessaryCivil Code21 yrs age of majority carried into the family code.21 yrs age of majority repealed by the Lina Law. 18 yrs is the uniform age of majority for marriageArt 14- 18-21 may contract marriage provided with parental consentkinds of incapacities1.Incapacity to comply with the essential obligations of marriage 2.( Art.36 Psychological Incapacity) The case of Romel SilverioWas born a male, but underwent sexual re-assignmentDecided to get married with an English manOSG- Silverio filed to change his birth certificate, the OSG must be informed of the petition however, it was not published and informed before the OSGCourt granted the petition of Silverio, however the OSG was informed about the said petition later and opposed it.Silverio lost in the appeal , SC held that matters of fact cannot be changed in the birth certificate but only clerical errors. Silverio cannot change his gender into female in his birth certificate to be able to get married.Capacity to contract marriageMust have no impediments (Art 37 & 38)Article 37Void marriages due to very close blood relationshipAscendant-Descendant-Regardless of degree they are disqualified from contracting marriageVoid and incestuous -Cousins in the 4th civil degree-Reason for prohibition- Public PolicyArticle 38-Relationships enumerated in this article, cannot contract marriage2 kinds of incapacity1. One or both parties do not possess the required qualifications2. Incapacity to comply with the essential requisites of marriage (psychological incapacity)2.Consent freely givenNew Civil Code- consent is essentialFamily code- consent is essentialConsent- given by the parties in entering the contract of marriageHow is consent freely given may be manifested? The law is silent on the manner consent may be manifested Consent is usually manifested through: Declaration of I do Kiss The parties must appear before the solemnizing officer to declare that they take each other as husband and wife No declaration, marriage is void, no expression of consent Signing of marriage contract- is a valid declaration of consent even if they did not verbally manifested consent before the solemnizing officer Pregnancy- not a valid declaration of consentArticle. 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)Formal Requisites of Marriage1. Marriage license (except in marriages in chapter 2)2. Authority of solemnizing officer3. Marriage ceremonyCivil code Did not include marriage ceremony in the requisitesMarriage license Authorization or permission given to an individual by the state Interest of the state- to uphold the family as a social institution-beginning of society and nation. As a rule- it is indispensible to the validity of a marriage No marriage be valid without a license Obtained before contract of marriageArt. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).A defect in any of the essential requisites shall not affect the validity of the marriage but the party or parties responsible for the irregularity shall be civilly, criminally and administratively liable. (n)Article 4 Absence of any of the essential and formal requisites of marriage shall render the marriage void. Exemptions- Marriages in remote places Marriages in articulo mortis CohabitationArticle 27- Article 34People vs Belen The court held that if a marriage is celebrated with a license but the license was irregularly procured, the marriage is still valid and will consider the license as a mere irregularity Absence of publication or notice The application for marriage must be published in a conspicuous place for 4 consecutive days and must not be removed Marriage is still valid in the absence of publication Irregularities- do not render marriage void, but people responsible for such irregularities shall be liable for civil, criminal, or administrative damages.Marriage contract Proof that the marriage has been celebrated. It is the best proof that the marriage has taken place Not essential to the validity of a marriageNational Statistics Office Repository of marriage contracts Civil Registrar general- head of NSOMarriage license- indispensible Marriage contract- not indispensibleAuthority of solemnizing officer Act 3613- not an essential requisite of marriage Goodfatih marriages-abolished by the civil code Civil code- authority of solemnizing officer became an essential requisite Absence of authority makes the marriage null and void Family code- authority of solemnizing officer is no longer essential but formal requisiteArticle 35 With respect to authority of solemnizing officer, a marriage celebrated by a person without authority makes the marriage null and void Except when both parties believed in good faith that the solemnizing officer has authority, will render the marriage validexpressed exception to absence of authority of solemnizing officer Good faith marriages- restored in the family code however the exception to absence of authority are expressed (art 35 par 2) and implied (art 10 last paragraph)Article . 6. No prescribed form or religious rite for the solemnization of the marriage is required. It shall be necessary, however, for the contracting parties to appear personally before the solemnizing officer and declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife. This declaration shall be contained in the marriage certificate which shall be signed by the contracting parties and their witnesses and attested by the solemnizing officer.In case of a marriage in articulo mortis, when the party at the point of death is unable to sign the marriage certificate, it shall be sufficient for one of the witnesses to the marriage to write the name of said party, which fact shall be attested by the solemnizing officer. (55a)Marriage ceremony Civil code- it is not an essential requisite Family code- it is an essential requisite, absence of which will make marriage null and void The law does not require a particular ceremony, it need not be formal but at least there should be a ceremony Ceremony is indispensible Heterosexual Indispensible because the parties are required to be present in person and not through representatives. They must personally declare before the solemnizing officer their willingness to become husband and wifeArticle 4 A defect in any of the essential requisites of marriage will render the marriage null and void Defect- absence of consent of one or both partiesWho are authorized to solemnize marriage? 2 laws provide for the authority Family Code- took effect August 3, 1988 Local Government Code of 1991- took effect January 1, 1992Civil Code Enumerated persons authorized to solemnize marriage Included city and municipal mayorsFamily Code Deleted mayors as solemnizing officers to dissociate marriage from politicsLocal Government Code Reinstated the power of mayors to solemnize marriagesArticle. 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) persons authorized to solemnize marriage. Family code Persons authorized to solemnize marriage Incumbent members of the judiciary (not retired, still holds office within their territorial jurisdiction. Not all members of the judiciary have territorial jurisdictions Members of the judiciary with territorial jurisdiction Members of courts below the court of appeals Family courts RTC MTC Members of the judiciary with national jurisdiction Sandiganbayan CA SC Dumagtoy vs Navarro Navarro- complainant (city mayor of surigao) Judge Dumagtoy (judge) Navarro learned that judge Dumagtoy solemnized a marriage outside his jurisdiction. He solemnized a marriage in his home. Navarro filled an administrative complaint against judge Dumagtoy Article 8- defense of Dumagtoy, it specifies where marriage should be celebrated General rule- Marriage celebrated in the church, chapel,office of the judge,open court, Exceptions- Marriages in Articulo Mortis (marriage can be celebrated anywhere) Marriages in remote places In a place designated by both parties, but the parties must make a written request for them to celebrate in the place they want. The written request must be made under oath. The request in the case was only written by one of the parties. Court Ruling It was a mere irregularity Under article 4, a mere irregularity in the formal requisite of marriage will not render the marriage null and void, but the persons liable for such irregularity is subject to civil, criminal, or administrative damages/ liability. Priests, Rabbis, Imams Must be recognized by their respective sects and are registered in the office of the civil registrar. At least one of the contracting parties are of the same sect as the solemnizing officer Civil Code- did not included Imams and did not required one party to be at the same sect as the solemnizing officer Family Code- allowed Imams to solemnize marriage Imams must be registered in the office of the civil registrar Office of the Director of the national library- registered before, replaced by the office of the civil registrar. Civil Registrar General- Director of the Bureau of Census This prevents marriage to be celebrated by just anyone Consul General, Consul, Vice-Consul Must be related with Article 10 Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) Consuls can solemnize only in special cases At their place of assignment in a foreign country That both parties are Filipino citizensQ:What if the presiding officer failed to comply with the requirements? What if the parties do not belong in the same sect? What will be the effect?A: Failure to comply, is just a mere irregularity. (Dean Aligada) In any deviation, then in no case will the marriage be considered void. Q: Can a mayor solemnize a marriage outside his municipality?A: Yes, but it will be an irregularity (Dumagtoy doctrine)Q: Can an acting mayor solemnize marriage?A:It Depends, if hes acting mayor for a specific purpose only, he cannot. But if all powers of a mayor are vested on him, he can solemnize marriage.Documentary requirements for contracting marriage Marriage license Notice of application of marriage- must always be published for 10 consecutive days in the municipal bldg. or any conspicuous place.Widows must present death certificate of the deceased spouse no license shall be issued after 300 days upon death of spouse. (civil code) provision on widows- was not carried over to the family code Equivalent for provision in the penal code (the lapse of 300 days)300 days rule to prevent confusion in the paternity of a child. Applies to all causes giving rise to termination of marriage 3 periods in the pregnancy of a woman 1st period- 120 days (4 months) period of conception 2nd period- 180 days (6 months) shortest period of gestation 3rd period 270 days (9 months) Additional 30 days- to include overstaying babies, longest period a child can stay inside the mothers wombIf applicant is a divorcee He has to present a certified copy of the decree of divorce Q: Does it applies to foreigners? Or Filipinos too? A: It also applies to Filipinos those who contracted marriage during (1917-1950) during existence of the Absolute Divorce law Act 2710-Absolute Divorce Law- repealed by the Family Code.