DOJ OPINION NO. 145, s.

1991

October 16, 1991

Mr. Ernesto M. Ordoñez

Assistant Secretary and
Head, Regional Development Group
Department of Trade and Industry
361 Sen. Gil J. Puyat Avenue
Makati, Metro Manila
Sir :

This has reference to your letter regarding the implementation of R.A. No. 6977, otherwise known as the
"Magna Cart for Small Enterprises".

You state that in line with the implementation of the aforesaid statute, the Department of Trade and
Industry (DTI) has completed the organization of the Small and Medium Enterprise Development (SMED)
Council which shall primarily be responsible for the promotion, growth and development of small and
medium enterprises; that DTI has likewise started preparations for the operationalization of the Small
Business Guarantee and Finance Corporation (SBGFC) created under the subject law to provide,
promote and develop various alternative modes of financing for small enterprises; that the SMED Council
Ad-Hoc Committee on Financing has reached an agreement that SBGFC will offer financial instruments to
lending institutions in the form of "small enterprise bonds" to be floated below the treasury bills rate so as
to encourage said institutions to lend to small enterprises, as an alternative means of compliance with the
mandatory allocation of credit resources to small enterprises required by R.A. No. 6977; and that the
SMED Council has approved such agreement.

You further state that during the consultation meeting with the concerned agencies, a question was raised
as to the "constitutionality" of the proposed SBGFC bond offer and that since the DTI is of the view that
such undertaking "does not violate any constitutional provision", you intend to proceed with the proposed
bond issue. prcd

It is not clear to us why the instant matter was brought to our attention. If it is your request that we
comment on the "constitutionality" of the proposed bond flotation, we regret to say that settled policy and
precedents of this Department prevent us from doing so. For one thing, the Secretary of Justice renders
opinion only on specific issues of law and not on question which are general in scope (Secretary of
Justice Opns. No. 48, s. 1963; No. 95, s. 1972; and No. 30, s. 1980). For another, if the statutory authority
for the proposed bond issue is Section 13 of R.A. No. 6977, it is noted thereunder that the enforcement of
said section is charged with the Central Bank; in fact, the said agency has already issued an
implementing regulation thereon (See CBP Circular No. 1288, series of 1991). The Secretary of Justice
does not take cognizance of matters which fall within the primary jurisdiction of another office or agency
for the reason that the opinions of the Secretary of Justice, being advisory in nature, cannot prevail over
the rulings promulgated, or that may hereafter be promulgated, by the agency charged with the
implementation, enforcement and administration of the law involved. (Id., No. 234, s. 1988; Nos. 90, 107
and 112, s. 1982).

Very truly yours,

(SGD.) SILVESTRE H. BELLO III

Secretary
DOJ OPINION NO. 050, s. 1991

March 21, 1991

Atty. Jorge R. Coquia

Legal Adviser
Department of Foreign Affairs
Manila

Sir :

This refers to the inquiry as to whether a marriage contracted before a certificate of legal capacity to
contract marriage was issued is valid or not.

The query is posed in connection with the marriage in January, 1990 of Mr. Bradley J. Latta, an Australian
national, to Josefina Vallar, a Filipino citizen. It appears that Mr. Latta was issued a certificate a legal
capacity to contract marriage after the said marriage which is not in accordance with Art. 21 of the Family
Code which requires that "(W)hen either or both of the contracting parties are citizens of a foreign
country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate
of legal capacity to contract marriage., issued by their diplomatic or consular officials." The Australian
Embassy claims that such a marriage is void from the beginning pursuant to a ruling of the Secretary of
Justice.

The issue to be resolved is whether a marriage contracted in the Philippines without a certificate of legal
capacity but with a marriage license is void ab initio.

Interpreting the provision of the New Civil Code, this Department in 1987 (not 1988) had occasion to pass
upon this issue and stated that "when one or both of the contracting partners are citizens of a foreign
country, Article 66 of the Civil Code enjoins the parties to provide themselves with a certificate of legal
capacity to contract marriage as a pre-requisite to the issuance of a marriage license." This requirement
was considered mandatory in character so that failure to comply therewith will render the marriage void
ab initio (Sec. of Justice Op. No. 136, s. 1987). prcd

Parenthetically, in Opinions dated October 5, 1946 and No. 28, s. 1975, this Department, also held that in
case the fulfillment of the requirement is rendered impossible of performance, an affidavit executed by the
alien contracting party or parties certifying as to such party's or parties' legal capacity to contract marriage
before the local civil registrar concerned or before any public official authorized to solemnize marriage
may be deemed a satisfactory substitute for the certificate of legal capacity required in Article 66 and
would accomplish the purpose of the law, which is "to protect the sanctity of the institution of marriage in
this country by providing the necessary safeguards against marriages of persons without legal capacity to
do so."

The effectivity, however, of the Family Code of the Philippines on August 4, 1988, modified Article 53 of
the New Civil Code, with respect to the requisites of marriage. Thus, under Articles 2 and 3 of the Family
Code of the Philippines, a marriage has essential and formal requisites. The aforesaid articles provide:

"Art. 2. No marriage shall be valid unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and female; and

(2) Consent freely given in the presence of the solemnizing officer.

"Art. 3. The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and

(3) A marriage ceremony which takes place with the appearance of the contracting parties before the
solemnizing officer and their personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age."

"Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio,
except as stated in Article 35(a).

A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45.

An irregularity in the formal 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.

The above-quoted provisions in clear and unmistakable terms state that any irregularity in the formal
requisites of a marriage, one of which is a marriage license, will not affect the validity of the marriage.
Thus, it has been held that the marriage under a license is not invalidated by the fact that the license was
wrongfully or fraudulently obtained without prejudice to the prosecution of the parties (People vs. Belen,
45 O.G. Suppl. No. 5, p. 88; Melcher v. Melcher, 102 Neb. 790, 169 N.W. 720, cited in Tolentino, Civil
Code of the Philippines, v. I, p. 213); and that the solemnizing officer does not have to investigate
whether or not the license has been properly issued (People v. Janson, 54 Phil. 176). It is the absence of
an essential or formal requisite that will render the marriage void ab initio (Art. 4, first paragraph, E.O. No.
209, as amended). It is worth observing that the law specifies what marriages are void from the beginning
and the absence of a certificate of legal capacity to marry is not one of those enumerated. prcd

It is therefore our view that the marriage of Mr. Bradley Latta and Josefina Vallar is not void ab initio.

Please be guided accordingly.

Very truly yours,

(SGD.) FRANKLIN M. DRILON

Secretary
DOJ OPINION NO. 146, s. 1991

October 17, 1991

Mr. Tomas Africa

Civil Registrar General
National Statistics Office
Sta. Mesa, Manila

Sir :

This refers to your request for opinion on the interpretation of Article 5 of Executive Order No. 209, as
amended, otherwise known as the Family Code of the Philippines, which reads:

"Art. 5. Any male or female of the age of eighteen years or upwards not under any of the impediments
mentioned in Articles 37 and 38, may contract marriage".

Specifically, you pose the query as to whether the date of reckoning of the required minimum age of
eighteen (18) years is the date of marriage or the date when the application for the issuance of a
marriage license was filed.

You state that some solemnizing officers are of the view that the reckoning date is the date of marriage.
However, it is your view that the reckoning date is the date when the application for marriage license is
filed with and accepted by the local civil registrar. Your reasons are:

1. It is the local civil registrar who is legally empowered to determine the legal capacity of the parties
to contract marriage;

2. Article 14 requires the local civil registrar to impose as an additional requirement, the submission
of parental consent by either or both of the contracting parties who are between the ages of eighteen and
twenty-one;

3. To consider the date of marriage as the date of reckoning for the required minimum age would be
to empower the solemnizing officers, whose duty is purely ministerial, to determine whether the parties
are of marriageable age or not; and

4. As in other types of application, e.g. application for a driver's license, the applicant for a marriage
license should show all his qualifications in the application form and not before the solemnizing officer.

An examination of all relevant provisions of the Family Code leads us to the conclusion that the
attainment of the required minimum age for marriage should be reckoned, not on the date of filing of the
application for issuance of a marriage license, but on the date of marriage. prcd

Both legal capacity, which includes legal age, and license are requisites of marriage, the absence of any
of which would render the marriage void (Arts. 2, 3 and 35, Family Code). If a party to the marriage lied
about his age when he procured a marriage license, the marriage would be void if it was celebrated
before the party attained the required minimum age, not because there was a misrepresentation in the
marriage license as to his true and legal age but because he did not possess the required minimum age
at the time he contracted the marriage. The law does not invalidate a duly issued license which was
procured on the basis of false representations by the party concerned, although the misrepresenting party
may be civilly, criminally, and administratively liable therefor (see Handbook on the Family Code by
Sempio-Diy, p. 15).
Furthermore, license may be dispensed with in certain marriages, such as a marriage in articulo mortis
(Art. 27); a marriage between parties residing in remote places (Art. 28); and a marriage between parties
who have previously cohabited for at least five years (Art. 34). In these cases, it would be incumbent
upon the solemnizing officer to determine whether the contracting parties are of age and not possess any
other legal impediment to the marriage (Arts. 29 & 34). Obviously, the reckoning date for possession of
the required minimum age would be the date of marriage and not the date of application or issuance of
the marriage license, since there is no marriage license in these cases.

Significantly, a marriage contracted by any party below eighteen years of age even with the consent of
the parents or guardians is void from the beginning (Art. 35, par. 1). The same is true where a marriage
was solemnized without a license, save in exceptional cases (par. 3). On the other hand, a marriage
solemnized without the requisite parental consent for those between the ages of eighteen and twenty-one
years, the said cause existing at the time of the marriage, shall be voidable (Art. 45, par. 1). The clear
implication is that the requisites of age or parental consent must be satisfied as of the time of the
celebration of the marriage and not before or thereafter.

Certainly, it is the duty of the local civil registrar to determine that the applicants are of the required
minimum age. However, it is believed that the local civil registrar should not refuse to issue a license for
the reason alone that either or both parties do not meet the requisite age on the date of filing of the
application for a marriage license as long as they will become of age within the 120-day period of validity
of the license (see Art. 20), and subject to the condition, which should advisedly be noted on the license,
that the marriage shall not be celebrated until after the party or parties shall have become of age.

As previously stated, legal age and license are two different requisites for marriage, and the presence of
both requisites at the time of the celebration of the marriage is mandatory for the validity of the marriage.
prcd

Please be guided accordingly.

Very truly yours,

(SGD.) SILVESTRE H. BELLO III

Acting Secretary
DOJ OPINION NO. 011, s. 1990

2nd Indorsement

January 17, 1990

Respectfully returned to Mr. Tomas P. Africa, Civil Registrar General, National Statistics Office, Manila,
the within letter of the Second Secretary of the Embassy of the Federal Republic of Germany requesting
for clarification/opinion on the status of the daughter of one Consuelo Mamangon Haarnagel.

The facts presented are as follows: that a certain Consuelo Haarnagel, nee Mamangon, who is a Filipino
citizen, was married to a German national; that they were divorced on April 2, 1987 before the effectivity
of the Family Code on August 3, 1988; that on August 12, 1988 Mrs. Haarnagel gave birth to a daughter;
and that on September 5, 1988, the child was recognized by her biological father, one Charles Scauzzo,
an American national. prcd

In relation to the above presented facts, you pose the following queries:

"1. Considering that Mrs. CONSUELO MAMANGON HAARNAGEL is a divorcee, is her child a
natural child or an illegitimate child other (than) natural?

"2. What surname will the child carry? Considering that the child was born when the Family Code
has already taken effect, and Article 176 of said Code provides that illegitimate children shall use the
surname of the mother, what is now the considered surname of the mother — MAMANGON which is her
surname or HAARNAGEL which is the surname of her former husband?"

The pertinent provisions of the law are as follows:

Family Code —

"Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized, and valid there as such, shall also be valid in this country, except
those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38. (71a)

"Where a marriage between a Filipino 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
likewise have capacity to remarry under Philippine law. (n) (as amended by E.O. No. 227, dated July 17,
1987)"

"Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws. (n)"

"Art. 164. Children conceived or born during the marriage of the parents are legitimate.

xxx xxx xxx

"Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise
provided in this Code. (n)."
"Art. 176. Illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code. The legitime of each illegitimate
of a legitimate child. (278a):

As regards the first query, it is believed that the daughter of Mrs. Haarnagel is an illegitimate child.

At the outset, it should be mentioned that the Civil Code provisions on filiation have been superseded by
the provisions of the Family Code which limits the classification of children to legitimate and illegitimate
thereby eliminating acknowledged natural children and natural children by legal fiction (Sempio-Dy,
Handbook on the Family Code of the Philippines, p. 228). Considering that the subject child was
conceived and born outside a valid marriage, regardless of the validity or invalidity of the divorce secured
prior to the effectivity of the Family Code, the daughter of Mrs. Haarnagel is an illegitimate child pursuant
to the express provision of the aforequoted Section 165 of the Family Code, the law in force at the time of
the child's birth. The fact that the child was recognized by her biological father, one Charles Scauzzo, an
American national, would not affect her status since under the Family Code, legitimation can only take
place by a subsequent valid marriage between parents. prcd

As regards the second query, it is our opinion that the child will carry the name presently being used by
the mother.

Under Article 176 of the Family Code, illegitimate children shall use the surname and shall be under the
parental authority of the mother. We have had occasion to rule that a Filipino woman who was validity
divorced abroad by her alien husband is allowed to use her former family name (i.e. the name she
employed prior to her marriage). The right or privilege of the wife to use the husband's surname springs
from the fact of marriage and when the marriage is dissolved, the basis for the continued use by the wife
of her husband's surname ceases (Sec. of Justice Op. No. 10, s. 1989). It was further stated in the
aforecited opinion that —

". . . the idea of the inclusion of the second paragraph of Article 26 is to avoid the absurd situation of the
Filipino being still legally married to his or her alien spouse, although the latter is no longer married to the
Filipino spouse because he or she had obtained a divorce abroad which is recognized by his or her
national law. It will, likewise, solve the problem of many Filipino women, who, under the Civil Code, are
still considered married to their alien husband even after the latter have already validly divorced them
under their (the husband's) national law and perhaps have already remarried (Alicia V. Sempio-Dy,
Handbook on the Family Code of The Philippines, p. 27)."

Wherefore, in the case under consideration, the child should carry the name prior to the marriage of her
mother, i.e. Mamangon.

Please be guided accordingly.

(SGD.) FRANKLIN M. DRILON

Secretary
DOJ OPINION NO. 106, s. 1991
July 9, 1991
Mr. Tomas P. Africa
Civil Registrar-General
National Statistics Office
Sta. Mesa, Manila

Sir :
This has reference to your request for opinion on the procedure to be followed in the registration of a legitimated child
whose illegitimate birth was not previously registered.

You cite as an example a child born on December 5, 1989, outside of wedlock and, whose birth was not registered. His
parents contracted marriage on November 10, 1990 and subsequently, they applied for the late registration of birth of
their child. prcd

You state that the procedure which you observe is to register the child as illegitimate and at the same time make a
marginal annotation on the record of birth that he has been legitimated by the subsequent marriage of his parents. This
procedure is based on the principle of civil registration that registration retroacts to the time of birth which means that
only the information obtaining at the time of birth shall be recorded in the civil register and not those which were
prevailing at the time of registration.

However, many affected parties are questioning this procedure. It is argued that Article 180 of Executive Order No. 209,
as amended, otherwise known as the Family Code of the Philippines, which reads:

"Art. 180. The effects of legitimation shall retroact to the time of the child's birth."

should be interpreted to mean that by operation of Article 178 (ibid), which provides for legitimation by subsequent valid
marriage of the parents, illegitimate children, whose births have not yet been registered, should no longer be registered
as illegitimate but as legitimate since the effects of legitimation retroacts to the child birth. Hence, this query.

It is basic that registration and legitimation are two (2) different acts. Registration refers to recording; inserting in an
official register; enrollment; to the act of making a list, catalogue, schedule or register, particularly of an official character,
or of making entries therein (In re Supervision of Election, C.C. Del. 1 F 1) (Black's Law Dictionary, Rev. 4th Ed., p.
1449). On the other hand, legitimation is a remedy or process by means of which those who in fact were not born in
wedlock, and should therefore be ordinarily illegitimate children, are, by fiction considered legitimate, it being supposed
that they were born when their parents were already validly married (1 Manresa, 5th ed., p. 550).

The Civil Register has been established to record acts, events and judicial decrees concerning civil status (Art. 407 New
Civil Code). Article 408 of the New Civil Code mentions both birth and legitimation as the specific acts or events to be
recorded in the civil register. Conformably, thereto, a legitimated child whose birth was not registered should therefore be
registered as illegitimate in the register of birth and the proper annotation that he or she has been legitimated by the
subsequent marriage of his or her parents shall be made by the local civil register. As you correctly pointed out and in
accordance with an established principle of civil registration, the civil status of the child, age, occupation, nationality,
usual residence and civil status of parents and other facts of birth should be reckoned on the date of birth of the child and
not on the date of registration. prcd

Please be guided accordingly.

(SGD.) FRANKLIN M. DRILON

Secretary