Introduction:

Marriage is a special contract of a 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 message within the limits provided by the family
code.
Marriage is a social union or legal contract between people
called spouses that establishes rights and obligations between the
spouses, between the spouses and their children, and between the
spouses and their in-laws.[1] The definition of marriage varies
according to different cultures, but it is principally an institution in
which interpersonal relationships, usually intimate and sexual, are
acknowledged.

Objectives:
1. To know the essential and formal requisites of marriage
2. The direct participation of the local civil registrar.
3. To know the importance of marriage license, consent and
nationality of parties contracting marriage
4. To know the different proper solemnizing authority in marriage.

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Body:
Marriage shall be to establish conjugal and family life. And
under Section 12, Article II and Section 1, Article XV of the 1987
Constitution:
The state recognizes the sanctity of family life
and shall protect and strengthen the family as a
basic autonomous social institution.
The state recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development.
The need to maintain the marriage and protect it against
undue termination is manifested in Article XV, Section 2 o the
Constitution where it provides marriage as inviolable social
institution, a foundation of the family and must be protected by the
state. This law governs the nature, consequences and incidents of
the marriage relation although the parties, within the limits provided
by law, may fix their property relations during their marriage.
For a man and woman to be able to contract marriage and for
it to be valid the essential requisites must concur: First, is the legal
capacity of the contracting parties who must be a male and female
and second, there is consent freely given in the presence of the
solemnizing officer.1 Failure or lacking of one of the essential
requisites will make the contract of marriage void ab initio.

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In the first requisite, it is to be understood that contracting

parties must be a male and female and both of them must be of a
marriageable age of at least eighteen years of age. The second
requisites set forth the consent given by both parties, for when
consent is vitiated, the contract is voidable as in the cases of
marriage where one is insane or when the consent is obtained by
fraud or by duress or intimidation.
However, it is not only important that the contracting parties
must abide with the essentials mentioned above to contract
marriage but they must also follow the formal requisites of it as
embodied in Article 3 of the Family Code of the Philippines.
Article 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.
The provision tells that marriage is void if the solemnizing
authority is not legal authorized to solemnized except in cases
where either or both parties believing in good faith that the

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solemnizing authority had the legal capacity to solemnize marriages.

It also discuss that when there is an absence of marriage license it
will definitely render the marriage void,2 but with exception when no
marriage license is required such as: marriage in articulo mortis or at
the point of death, remote residence of either party,3 among Muslims
or members of the ethnic cultural communities,4 marriage of man
and woman who have lived together as husband and wife for at least
five years but both of them do not suffer legal impediment to marry
each other5 and marriage performed abroad where foreign law do
not require marriage license.6
The absence of the essential and formal requisites shall
render the marriage void from the beginning and therefore both
contracting parties must comply with it. However, some defect in any
of essential requisites renders the marriage voidable and the defect
may refer to lack of parental consent to the marriage or the consent
of party is vitiated. On the other hand, the irregularity in the formal
requisites will not affect the validity of the marriage but will subject
the party responsible to civil, criminal and administrative liability.
In the case of De Jesus vs, Syquia,7 that the action for breach
of promise to marry has no standing in the civil law, apart from the
right to recover money or property advanced, upon the faith of such
promise. Generally, a breach of promise to marry per se is not
actionable, except when one of the contracting parties incurred
expenses for the wedding and the necessary incidents thereof.

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To further elaborate marriage, we must also know the proper

authorities who can solemnize marriage and where the proper place
of solemnization is. As embodied in the Family Code, Article 7
provides that:
Article 7. Marriage may be solemnized by:
1. Any incumbent member of the judiciary within
the courts 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 register general, acting within the limits of the
written authority granted him by his church or
religious sect and provided that at least one of
the contracting parties belongs to the solemnizing
officers church or religious sect;
3. Any ship captain or airplane chief only in the
cases mentioned in Article 31;
4. Any military commander of a unit to which a
chaplain is assigned, in the absence of the latter,
during military operations likewise only in the
cases mentioned in Article 32; or
5. Any consul general, consul or vice consul in
the case provided in Article 10.

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In addition to these solemnizing officers, mayors are now

again

authorized

to

solemnize

marriages

under

the

Local

Government Code of 1991 sections 444 and 445

Upon determining the proper solemnizing authorities, the
marriage shall be solemnized publicly in the chambers of the judge
or in open court, in the church, chapel, or temple, or in the office of
the consul-general, consul or vice-consul, as the case maybe, and
not elsewhere, except in the cases marriage at the point of death or
in remote places.8
It is to note that there need be no legal reason for the
marriage to be solemnized privately as a both parties request in
written sworn statement that their marriage be solemnized in a
house or any other private place.
After all the necessary formal and essential requisites of
marriage that is complied with by the contracting parties, marriage is
now binding and acceptable by the law. However, before the
commencement of marriage, in case either of the contracting parties
has been previously married, the applicant shall be required to
furnish several documents attesting that the previous marriage is
already void either by death of the previous spouse, judicial decree
of absolute divorce, or declaration of nullity. If death certificate
cannot be obtained, in instances where the previous spouse is
already dead, an affidavit setting forth this circumstance and his or
her actual civil status and the name of date and birth of the
deceases spouse.9

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Consent is one of the important roles in contracting marriage.

If a contracting party to the marriage is between the ages of
eighteen and twenty one years of age and he or she has not been
previously emancipated by marriage, there is a need of consent to
the marriage by the parent, guardian, or persons having legal charge
of the party. And if the contracting parties are in the age of twenty
one to twenty five years, they are obliged to ask their parents or
guardian their advice upon the intended marriage. If they do no
obtain such advice, the marriage license shall not be issued till after
three months following the completion of the publication of the
application thereof.
In instance where the contracting party is a citizen of other
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.
With respect to stateless persons or refugees from other countries, a
mere affidavit showing their legal capacity will suffice.
In the case of Garcia vs. Recio,10 the Supreme Court held that
the legal capacity to contract marriage is determined by the national
law of the party concerned. The certificate of legal capacity is
sufficient to establish the capacity of foreign nationals, their
authenticated and admitted certificate is prima facie evidence of
legal capacity to marry on the part of the alien applicant for a
marriage license. The absence of a certificate of legal capacity is
merely an irregularity in complying with the formal requirements for

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procuring a marriage license, an irregularity which will not affect the

validity of marriage.
In other circumstance where the contracting party entering
marriage is one of a foreign national and a Filipino citizen, paragraph
2 of Article 26 of the Family Code will govern which provides:
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 the capacity to remarry
under the Philippine law.
In the second paragraph, there is a limited recognition of
foreign divorce, entitling the Filipino spouse to remarry, the basic
conditions being that the former marriage was validly celebrated and
a subsequent divorce was validly obtained by the alien spouse.
In the case of San Luis vs. San Luis,11 the court held that a
divorce decree validly obtained by the alien spouse is valid in the
Philippines, and consequently, the Filipino spouse is capacitated to
remarry under the Philippine law. It would have vested the wife of
the latter after his remarriage, with the legal personality to file the
petition for the plaintiffs estate.
Participation of Local Civil Registrar
The appointment of a civil registrar shall be mandated for city
and municipal governments.12 The civil registrar shall be responsible

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for the civil registration program in the local government unit

concerned, pursuant to the Civil Registry Law, the Civil Code and
other pertinent laws, rules and regulations issued to implement
them.
In contracting marriage, the local civil registrar shall be the
one to issue marriage license.13 He shall also determine whether the
parties have the required age of marriage. 14 It is presumable that the
local civil registrar by merely looking at the applicants upon their
personally appearing before him, be convinced that either or both of
them have the required age and in this regard, if the LCR commits
an error, he may be acting in good faith which under the spirit of
mala in se, will negate the criminal responsibility. The local civil
registrar is also tasked to prepare a notice which shall contain full
names and residence of the applicants of marriage license. It must
be posted for ten consecutive days on a bulletin board outside the
office of local civil registrar and accessible to the general public. 15 He
is also obliged to require the payment of fees prescribed by the law
or regulation before the issuance of marriage license. It is a general
rule that no other sum shall be collected in the nature of a fee or tax
of any kind for the issuance of said license. Also, it is his duty to
exempt indigent parties who have no visible means from fees on
issuance of marriage license provided that a fact must be proven by
affidavit or oath.
And lastly, it shall be the duty of the local civil registrar to
prepare documents required in contracting marriage, and to
administer oath to all interested parties without any charge in both

11

cases. It is also to note that all documents and affidavits filed in

connection with application of marriage license is exempted from
documentary stamp tax. And the LCR is concerned to enter all
application of marriage license filed with him in a registry of book
strictly.

Conclusion:
Marriage is to establish conjugal and family life and it is love
that exists that is why man and woman enter into a marriage.
However, seeing the whole process of marriage will save lots of
patience to the contracting parties. But it must always be noted that
while entering into marriage, formal and essential requisites must be
present in order for it to be valid, otherwise, voidable or void ab
initio. The importance of documents and consents will also render
the marriage valid provided that both parties must be acted in good
faith. It is not how people comply with the laws, rules and
regulations, but proper observance of what should be done and what
should not be done before a man and woman enters into a sacred
matrimony in their lives.

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Source:
The Family Code of the Philippines by Jose N. Nolledo, January 15, 2009

Footnotes:
1 Article 2, Executive Order 209 The Family Code of the Philippines
2 Section 3, Article 35, Executive Order 209 The Family Code of The Philippines
3 Article 28, Executive Order 209 The Family Code of The Philippines
4 Article 33, Executive Order 209 The Family Code of The Philippines
5 Article 34, Executive Order 209 The Family Code of The Philippines
6 Article 26, Executive Order 209 The Family Code of The Philippines
7 Antonia De Jesus vs.Cesar Syquia, G.R. No. L-39110, November 28, 1933.
8 Article 8, Executive Order 209 The Family Code of The Philippines
9 Article 13, Executive Order 209 The Family Code of The Philippines
10 Grace Garcia vs. Rederick Recio, G.R. No. 138322. October 2, 2001.
11 Rodolfo San Luis vs. Felicidad San Luis, G.R. No. 133743, February 06, 2007
12 Article 479, Local Government Code of 1991
13 Article 9, Executive Order 209 The Family Code of The Philippines
14 Article 12, Executive Order 209 The Family Code of The Philippines
15 Article 17, Executive Order 209 The Family Code of The Philippines

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