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*The only way to dissolve marriage is thru action or grounds prescribed by law . *
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Why is divorce not allowed in the Philippin Bhen ft. The Raisins
EO 209 – Issued by Corazon Aquino on Aug 3, 1988 Art 1 – Definition of Marriage –special contract of permanent union between a man and a woman entered into in accordance with the law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. We can infer that Marriage in our jurisdiction is both a status and contract. As status – it entails rights and obligation which are personal to both parties (ie mutual support, love, respect and fidelity and obligation to live together) which can only be imposed and availed of by parties. As a contract – – it is a special contract between a husband and a wife and the third invisible party, the state. It is imbued with public interest. Its nature, consequences and incident are governed by law and not like ordinary contracts which are dictated by the parties. The obligations of ’t be restricted or bargained.
It is because divorce is premised o policy that marriage is purely private between two parties. If they are free to marriage, they are free to leave it as well. A marriage in Phil is not subject to stipulati agreements between two parties instead imbued with public interest and divor dissolving marriage base on agreement o parties.
Art 2 – 2 Essential Requisites
1. Legal capacity to contract marriag Age (18 and above)
Sex (Art (Art 5) must be a mal female
Absence of legal impedim on both or either of contracting parties (ie. incestuous marriage, Art against public policy, Art 40 court declaration of null previous marriage h bigamous, Art 53 – void be of noncompliance of Art 5 Sign up to vote on this title Not previous useful marriage i Useful 52, the due to Art 40 or annulled 45.
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delivery of properties must be recorded in the appropriate local civil registrar)* Sex requirement; male and female
But how do we determine the sex of an individual?
A. Thru birth. This is immutable. (Romel Silverio vs Republic ) Romel feels and acts like a woman, taking advantage of the advancement of technologies, he went to Thailand to undergo sex reassignment. He went back to Philippines and filed an action in court to change his gender from female to male and name from Romel to Melly. But according to SC, sex is determined at birth by examining the physical genetalia of the newborn baby. *But the SC points out that they cannot grant the relief that Silverio is wanting because there is no law that grants such. Meaning, the problem can be solved thru legislation* B. When classified as intersex, the individual can choose which gender he wishes to be identified upon reaching the age of 18. (Jennifer Cagandahan vs Republic ) Jennifer is intersex. According to SC,
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Formal Requisites;
Authority of Solemnizing Office those authorized by law as enumerated in
1. Incumbent member judiciary within the jurisdiction. Resigned terminated judges solemnize mar Solemnization must within the c jurisdiction where courts are allotted respective jurisdi Lower courts such a regional, city and mun trial courts have li jurisdiction where can solemnize marria their own courts only the higher courts su supreme court, cou appeals, court of tax ap and sandiganbayan, jurisdiction is nation scope, they can solem marriage anywhere i Philippines. 2. Priest, rabbi, im Sign up to vote on this title – provided th minister useful by their c Useful Not authorized or religious sect, accredited by the
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*Members of judiciary and those of the religious sect can solemnize not just ordinary marriages but also marriages in articulo mortis.* 3. Ship captain or airplane chief – can solemnize only marriage in articulo mortis between passengers or crew members during flight, while the ship is at sea or stopover. What if the chief pilot is a party to the marriage in articulo mortis?
If the plane has only one pilot (himself) then there is no way the marriage in articulo mortis can be done because he is not allowed to officiate his own wedding. But if there are two pilots, the chief (at the point of dying) and the assistant, the latter will take over and act as the chief pilot and solemnize the marriage in articulo mortis. This is the same with the situation with a mayor who is incapacitated or on leave, the vice mayor acts as the mayor and can solemnize marriage. 4. Military unit commander – must be a commission officer, in the absence of a chaplain, can solemnize marriage in articulo mortis provided it is solemnize within the zone of military operation.
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territory and if a marri solemnized there, it is l if it is solemnized in Philippines. If done ou the office, the law enf in the country where held marriage shall app 6. City and municipal m – under RA 7160/ Government Code, a p.18 they can solem marriage. Before the F Code, mayors can solem marriage within respective local govern units. But when the f code was enforced, authority was remove withdrawn until the government code effect. But this time, are not limited in terr jurisdiction so they solemnize marriage ou their jurisdiction be the law doesn’t make qualifications. If it wa intention of the frame limit their jurisdictio Sign up to vote on this title should have been in th Useful Not useful
Valid Marriage License – issued by
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Original birth certificate, if none, original baptismal certificate, if destroyed, lost or the person in position thereof was unable to provide a copy despite receipt after 15 days, just submit a residence cert or cedula or submit testimony of witnesses who would attest to your name, residence, age, citizenship and name of parents, residence, age and citizenship and etc. Exception of birth or baptismal certs: When parents of the applicant show up before the LCR and attest to his age . If they didn’t, the person, himself, can show up and hope the civil registrar can be convinced by looking at his face that he is already of age.
Parental consent – 18-20 yrs old, if none, it is voidable under art 45. Parental advice – 21-25 yrs old, non-submission will not invalidate the issuance of marriage license but will be suspended for 90 days from the expiration of 10 day publication requirement. Cert of marriage counselling – 18-25 yrs old, non-submission will suspend the issuance of marriage license for 90 days from the expiration of 10 day publication requirement. What if both or one of the parties was previously married, what are the requirements they need to present?
If both or one of the parties was
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Instead of submitting the death c his spouse or divorce decree, he can just pr certificate of legal capacity to contract mar issued by the foreigner’s consular office i Philippines ( Art 21).
What about if the party is a stateless indiv or refugee?
Art 21- He should submit an stating his circumstances and showing his capacity to contract marriage. But the pro with the provision is it does not point out law determines the stateless person’s cap to contract marriage because capacit contract marriage is question of law. Natio theory can’t be applied and there is also si in the provisions of family code so we res public international law’s principle that possible for a person to be without a co but it is impossible for a person to hav domicile and that the place can be permanent domicile although he is not a c of that country. There is no applicable law can determine his personal law and therefo law can determine his legal capacity to ma we apply the temporary domicile of the p which if it happens that he is living in Philippines, the Philippine law shall apply. Sign up to vote on this title
Useful Not useful Publication of application for marriage lice notice shall be posted outside the office conspicuous place for 10 days informin
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them are suffering from a legal impediment. However, the legal impediments shall be noted and attached in the application and LCR shall wait for the court to enjoin its office from issuing the license. *The marriage license only lasts for 120 days, after that, when used, the marriage is void. * Marriages that don’t need marriage license;
1. Articulo mortis – unplanned marriage hence, no time for application. There should be an affidavit to be executed by the solemnizing officer attesting that the marriage is in articulo mortis and that he took the necessary steps to ascertain the age of the parties and absence of legal impediments. 2. Marriage where parties are from remote areas where there is no means of transportation for parties to appear before the LCR. There should be an affidavit to be executed by the solemnizing officer attesting that the circumstance and that he took the necessary steps to ascertain the age of the parties and absence of legal impediments. 3. Muslim Marriages and other Ethnic Cultural Minority Marriages. Provided that it was done according to their practices. 4. Art 34 – ratification of marital
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(Dayot vs Dayot )
It is required that the parties live without impediment in that 5 years of cohabitation should be living in exclusivity and continui
(Manzano vs Sanchez )
Judge faced administratively complain solemnizing a marriage between two p who just executed an affidavit stating that were just separated from their spouses h suffering from legal impediment. impediment. SC ruled rule the absence of legal impediment must be pr at the time of solemnization solemnization of marriage
But it was resolved in (OCA vs Judge Nata
Several admin cases were filed against j who solemnized marriages between 18 years old parties who invoked Art 3 estimation, the contracting parties were ar 13 yrs old when they started cohabitating. still minors, there is legal impediment.
In conclusion, Art 34 must be free from any impediment in the whole 5 year cohabitation.
up to vote on this title Valid Sign Marriage Ceremony Useful Not useful This is with the appearanc contracting parties with a personal declar
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personal declaration is sufficient to comply a valid marriage. What if the officiating priest forgot to ask them if they take each other as husband and wife but the parties were able to sign the marriage certificate?
The written personal declaration is enough. As long as the personal declaration is made, written or verbally, it is sufficient. Where is the wedding held?
Depends on who is the solemnizing officer ; if a judge, then in the court , if rabbi, imam or priest, then in the church. But there are exceptions to the rule on venue; 1. Articulo mortis – Marriage ceremony can be done anywhere. 2. If contracting parties are from far areas and they can’t appear before a church or court. 3. Upon official writing of request to solemnizing officer to hold the ceremony in a place designated by the parties. But this is still subject to the rule on jurisdiction. The solemnizing officer must still have jurisdiction over the place chosen by the parties.
Effects of absence, defects and irregularity in
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that a president can solemnize a ma because even mayors can but according t law, the president can’t. can’t.)
Exception to unauthorized officer solemnized a marriage (Art 35): in good faith where both or one o parties believe that the solem officer is authorized to solemniz marriage, then it is valid.
Defect in the essential requisites invalidate marriage but makes it voidabl Art 45 – no parental consent, insanity diminishes the consent of the party , frau the consent is vitiated where if there is no he should have not married her , incapacity such as impotency , serious incurable disease as it is a defect for o perform marital obligations)
Mere irregularity of requisites – invalidate the marriage neither mak voidable but render criminal, civi administrative liability to the one who ca it. (ie. MTC judge solemnized a marriage o his jurisdiction, it is just a mere irregularity
Art 26 – conflict of laws, rule as to mar solemnized Sign upabroad. to vote on this title
Not useful ofUseful govern marriage solem 2 sets rules that inside and outside Philippines as contemp by art 26.
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Between a foreigner and a Filipino – “lex loci celebrationis” hence, apply PH Law, but the foreigner’s legal capacity is governed by his national law. Rule for marriage solemnized outside PH: If valid abroad, it’s valid here but there are 7
exceptions to that under Art 35; p1 – below 18 years old P4 – bigamous marriage P5 – mistake in identity P6 – void marriage pursuant to Art 53 *If marriage is solemnized abroad but without license and it is valid there, then it shall be valid here too because marriage license is not among exceptions of Art 26*
Art 36 – psych incapacity Art 37 – incestuous marriage Art 38 – void by reason of public policy Contrasting Opinions with regard to the application of Art 26 exceptions: 1. The exceptions of Art 26 apply to all parties whether Filipino or foreigners. 2. (Paras, Agpalo, Sta Maria) the exceptions in art 26 are applied only in so far as the Filipino spouse is concern. Art 26 regards to status and legal
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the requirements of marriage is ceremony requires the presence of the parties.
Between two foreigners abroad – on premise that the exceptions do not app foreigners, if valid there, it’s valid here. marriage abroad is polygamous and valid t Art 26 does not apply since they are not Fili All the premises in Art 26 do not app foreigners.
Between foreigner and Filipino abroad loci celebrationis”. If valid there, then valid but the Filipino spouse is covered by exceptions. (ie. In HK it is valid to marry a age of 15, the Fil is below 18, it is void in P valid for the foreigner and in HK. It’s a h marriage but it’s legally impossible bec there is no such thing as partly valid or p void.
So how should we treat the status o marriage?
Some say, if there is the presence o exceptions, it is void .
But to Paras, Agpalo & Sta Maria exceptions govern the Fil spouse only. hybrid marriage, the most accep interpretation is that the marriage is va consistence theonPH policy Sign upwith to vote this title in our jurisd pursuant to thepresumption of validi Not useful Useful marriage.
Sta Maria Art 35 p1 below 18 should n
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*But there is no right or wrong answer in here, no case like this has been presented before the court neither were there qualifications provided in Art 26.*
Art 35, p. 2 The provision is to address the concern raised from the result of Vando vs Romilo and Pilapil vs Ibay Zomera; The alien spouse obtained divorce decree abroad and returned to PH and claimed to be the husband of the Fil spouse as they argued that PH law doesn’t recognize divorce but SC ruled that their national law determines their legal capacity meaning the divorce decree was recognized. However, there is an absurd situation that arises from this, the Fil spouse is still regarded as the alien spouse’s wife even if the alien spouse is already considered to be off the marriage. Hence, the legal capacity of the alien to remarry shall also be availed of by the Fil spouse as to correct the injustice or the absurd situation.
Art 35, P2 only applies; a.
If the divorce decree was obtained by the alien spouse abroad . b. Between a Fil and a foreigner . Mixed marriage shall be determined at the time of the acquisition of divorce
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Existence of divorce decre present a copy of divorce decr b. Authenticity of divorce decr rule 132 sec 24 and 25 of the of court. Under sec 24 - prese official publication of divorce d (official gazette or publication other option is to present a true copy of divorce de accompanied by an attestatio a.
*Attestation is an undertaking of the custodian that the copy is certified and fa copy of the original, executed in his custod
Since the document is kept outsid PH, it should also be accompanied certification executed by the consular official. This states tha officer who executed the attestat the legal custodian and as the custodian, he has the authority to the required attestation.
*Failure to submit these would result t dismissal of the petition.*
Noveras vs Noveras
Marriage between two Filipinos subsequently acquired us citizenship. Sign up to vote on this title Wife obtained divorce decree in abroad a Useful located Notinuseful the properties US were adjudica her.
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She failed to submit the attestation and certification therefore the court cannot issue judicial declaration. 2. Validity of divorce decree or Establish divorce decree in conformity to the foreign laws allowing such. Procedure: Rule 132 sec 24 and 25 (attestation and certification) But which law does the petitioner need to prove?
In Republic vs Obrecido – it was the US law because it is where the divorce decree was obtained and the spouse who obtained it is a US citizen. What if the divorce decree is obtained in a country not from the country of the petitioner? (ie. German who obtained divorce decree in US)
Prove both laws . If under both laws it is valid, then it is valid. But what if the other country does not allow divorce?
Bayot vs Bayot Wife went to Dominican Republic and obtained divorce decree there then returned to PH and aimed to declare her marriage with Fil spouse null but because there is no longer cause of action it was dismissed. Her national law recognizes divorce hence, it is valid here.
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Relative Divorce which is similar to separation.
What is the rule if the alien spouse, the one obtained the divorce decree, wishes to rem
Corpus vs Sto Tomas
They were both Fil at the time of their mar
Husband went to Canada and got natur there.
He was surprised that wife was cheating o so he decided to obtain divorce decree.
He found another Fil to love so he submitte copy of divorce to civil registry. But he advised by the LCR that it was not enoug that he should get recognition of his di decree from the PH court.
But p2 of Art 26 cannot be availed by forei The procedure under Art 26 p 2 is reserved only. But he may still have gained recognit his divorce decree in accordance to rule 3 48 and 50 rules of court governing effe foreign judgment since divorce decree foreign judgment. Procedure:
a. Recognition of the divorce de Sign up to vote on this Under Rule 132title sec 24 and
existence and authenticity of the di Not useful Useful
decree and the national law of the spouse that validates the said decr
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the remedy for the alien spouse is to file petition for correction or cancellation of entries under rule 108.
Void Marriages Art 35 – by absence of formal and essential requisites Art 26 – Exceptions provided Art 37 – Incestuous Marriage Art 38 – By reason of public policy Art 40 – subsequent marriage where the party was previously married, contracts marriage without prior declaration of nullity of the previous marriage. Art 44 – after the previous spouse disappeared and the remaining spouse contracts a subsequent marriage but in bad faith where he knew that the previous spouse is alive. Art 53 – liquidation, partition, distribution and delivery of property legitimes. Art 36 – Psychological Incapacity 3 Requirements to Establish Psych Incapacity ; 1. Juridical antecedence 2. Gravity 3. Incurability Psychological Incapacity is more than physical
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The expectant wife (lol) was sad to realize the husband just lied in bed and turned his on her.
They went to Baguio for a honeymoon invited the mothers, uncles and nephews.
The husband submitted himself to a ph inadequacy examination. The physician f out that his organ in non erection state i inches and erects an inch. But this is enou consummate marriage so it was found ou it’s not physical inadequacy but more i psychological make-up of the individual.
Antonio vs Reyes
Wife is a pathological liar; she conceale pregnancy before their marriage, she ac her brother in law of raping her, she lied being a psychiatrist, she lied about her be voice talent when none of her family mem has ever heard her sing (aylmao), she prete to be a person of great influence, she even her husband and pretended to be someone recognizes herself as the company’s rain m in the business.
If one is pathological liar, she can’t be exp to perform the marital obligation as marri founded on fidelity, trust, honesty and love Sign up to vote on this title Kalaw vs Fernandes Useful Not useful Wife loves herself so much to the exte neglecting her obligation to her family. She
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his own decision. On the other hand, the wife is suffering from anti social personality disorder . She defies norms in the society. She is domineering, manipulative and she doesn’t care of other people’s rights and feelings.
Reyes vs Reyes Husband was too invested in business and he doesn’t even bother to call his wife as he was remorseless. Wife had an operation once and he did not even care about her. All his businesses were a jenga of failure. SC found this as indicative of immaturity and irresponsible on the part of the husband, demonstrative of utter insensitivity and failure to understand the meaning of marriage.
I know you’re tallying so what’s your score out of 5? XD
Grounds of nullity, annulment or legal separation such as homosexuality, lesbianism, alcoholism and etc can be grounds for psychological incapacity too, so long as they comply with the 3 characteristics;
1. Juridical antecedence – Psychological incapacity is present at the time or prior to the marriage celebration although it’s manifested after the celebration.
The connection between behavioral manifestation and the history of the individual
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outburst or irreconcilable differences ar grounds since they are not that grave. 3. Incurability
– It must be something beyond means of the individual to avail of the cure.
dual concept; absolute incurability – unab perform marital obligation regardless of w spouse is. Relative incurability is incap present in one or particular spouse only bu necessarily when he is partnered to anoth he still can remarry.
Is it the defect in the inner self of the indiv or the individual’s ability to deal wit partner?
It is possible that the individual is perfec when paired with another perfect individu together they are imperfect (screw drive screw analogy). So if it’s relationship-cen or oriented then we have relative incura because one’s capacity to perform depen his partner. But if it’s in the inner self, rega of who the spouse is, he is always incapacit In PH, we adhere to both. It’s enough that far as that spouse is concern, he is unab perform marital obligation. Sign up to vote on this title
Useful Not useful SC Guidelines for purposes of disso petitions for nullity invoking Psycholo
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e. It must be incurable that there is no known cure for this type of disorder and even if there is, it is beyond the means of the spouse to avail of the cure. f. The incapacity to perform marital obligation of the spouses to each other and the parents to their children (Art 6872, 221, 222 and 225 of Fam Code. (ie if the husband is so irresponsible with respect to his job but not to his children, it’s not psychological incapacity) ) g. Decisions of the church matrimonial tribunal although not conclusive upon the courts but they carry weight.
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