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Article 1 of the Executive Order No. 209, otherwise known as the Family Code defines marriage as a special contract
of permanent union entered into in accordance with law for the establishment of conjugal and family life. It is a special
contract because it is more than a mere contract accompanied by duties and obligations unique to a married life.
The consent of the parties is essential to its existence like any other contract. However, when the contract to marry is
executed by a man and a wife, a relation between the parties is created which they cannot change except for special
circumstances as will be discussed later. Other contracts may be modified, restricted or enlarged or entirely released
from upon the will of the parties. Not so with marriage. The relation, once formed, calls for the law to step in and hold
the parties to various obligations and liabilities. Marriage is a special contract also because it is vested with public
interest. Marriage is an institution in the maintenance of which in its purity the public is deeply interested for it is the
foundation of the family and of society- without which there would be neither civilization nor progress87. It is the
characteristic of permanence therefore that distinguishes marriage from a purely consensual transaction.
Marriage is also a civil contract, such that no ecclesiastical elements are involved. The law does not look upon
marriage as a sacrament. In the eyes of the law, marriage is a secular matter. When the requirements of law are
complied with, what has been entered, is by law, a contract of marriage, whatever else a church or a religious
organization may demand from its members.
Marriage can be argued to be the very groundwork for other domestic relations. The state has an interest in this
special contract. Marriage is the foundation of the family, and around the family, many of our present day social
institutions are built.

Extrinsic Validity
In the Philippines, the determination of the extrinsic validity of marriage is referred to the lex loci celebrationis, or, law
of the place of celebration. This is a consequence of the maxim locus regit actum, or the place governs the act. By
extrinsic validity, we mean the legal sufficiency insofar as the formal requisites of a valid marriage are concerned.
Story the general principle is that between persons, sui juris, the validity of a marriage is to be decided by the law of
the place where it is celebrated. If the marriage is valid in the place of celebration, it is valid everywhere. In the same
line of thought, if the marriage is invalid in the place of celebration, it is invalid everywhere.
The Hague Convention on Celebration and Recognition of the Validity of Marriages89, states that the formal
requirements for marriage are governed by the law of the state of celebration, a reiteration of a recognized principle
of conflict of laws. Hence, the general rule is that all states recognize as valid marriages celebrated in foreign
countries if they complied with the formalities prescribed there.

Ernst Rabel made a comparative survey of various legal systems revealing that there are three ways of applying the
maxim locus regit actum:

The imperative or compulsory rule.
In one group of countries, including the United States, England, Denmark, Japan and the Philippines, the law of the
place where the marriage is celebrated governs the matter of formal validity, irrespective of whether the marriage is
concluded within or outside the forum. In short, the maxim locus regit actum or the principle that the act is governed
by the law of the place where it is done is applied compulsorily; the law of the place of celebration, the lex loci
celebrationis, is solely decisive.

The optional rule.
Many countries follow the optional ruleparties celebrating a marriage within the forum must comply with domestic
formalities; parties marrying abroad must observe either the formalities prescribed at the place of celebration or those
of the personal law of the parties. Article 7 of the Hague Convention on marriage adopts the optional rule by providing
that where the parties to a marriage are of different nationalities, a marriage not complying with the formal
requirements in the country of celebration must satisfy the national laws of both parties in order to be recognized by
other participating states.

The modified or religious method
This method is adopted by a few countries, notably, Greece, Egypt, and Spain, insofar as Spanish Catholics are
concerned due to its distinctive premium on religious custom. The rule may be modified by considering the religious
form prescribed by law of these countries as essential for marriage of their own nationality. A marriage by merely civil
ceremony performed abroad may not be recognized in the forum.

Sources of Law
The Philippines abide by the imperative rule. For marriages celebrated outside the Philippines,
Article 17 of the Civil Code embodying the rule locus regit actum, or les loci celebrationis, govern: 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. For marriages celebrated in the Philippines, the formal requirements are set forth in Article 3 of the
Family Code. - 1. Authority of the solemnizing officer; 2. A valid marriage license expect in cases provided 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 lex loci celebrationis principle is expressed in the first paragraph of Article 26 of the
Family Code, which states that: 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 be valid in this country, except those
prohibited under Articles 35(1) (4) (5) 36, 37 and 38.

Intrinsic Validity
Intrinsic validity relates refers to the legal sufficiency insofar as the substantive requirements of a valid marriage are
concerned, including the general capacity of the contracting parties. However, each legal system possesses a distinct
concept of what matters are of substance as distinguished from what matters are of form. A survey of the various
legal system demonstrates that there are two competing principles as to the law that should govern the substantive
validity of marriage. One points to lex loci celebrationis while the other direction refers to the personal law of the
contracting parties, either by the parties personal laws, which may either be their domicile or nationality.
It is said that the principle that would govern the intrinsic validity of a marriage depends on the policies and treatment
of marriage of a particular legal system. Where marriage is considered a contract, lex loci celebrationis prevails; while
if considered primarily as a status or an institution, it is the law of their domicile or their nationality that is controlling.
In the United States of America, the usual view is that a marriage valid where entered is valid anywhere. The Second
Restatement provides that a marriage, which satisfies the requirements of the State where contracted, will be
recognized everywhere as valid unless it violates the strong public policy of another State which has the most
significant relationship to the spouses and the marriage at the time of the marriage. Thus, marriages that are
contracted by parties forbidden to marry, or forbidden to enter the particular marriage in question, of those which are
polygamous or incestuous are denied validity.

Sources of Law
Marriages between Filipino Citizens, no matter where celebrated, are valid if it complies with the requirements of
Article 2 of the Family Code, which states that: No marriage shall be valid, unless these essential requisites are
present: Legal capacity of the contracting parties who must be a male and a female; and Consent freely given in the
presence of the solemnizing officer.

Philippine law on substantive validity does not exclusively adhere to the lex loci celebrationis rule. There is a
distinction as to marriages celebrated abroad, and in respect to marriages in the Philippines. As to the former, what
applies is a combination of the lex loci celebrationis rule and the personal law (national law) rule. This is clearly the
meaning of Article 26 of the Family Code. This general rule should therefore be qualified by two exceptions. First,
marriage between Filipino nationals who marry abroad before the Philippine consular or diplomatic officials, in which
case whatever the law of the place of the celebration prescribes, the substantive validity is to be determined by
Philippine laws. Secondly, the saving clause of Article 26, declaring as invalid marriages prohibited under Philippine
laws by reason of public policy, including polygamous, incestuous marriages and those contracted through mistake.
As to marriages entered into in the Philippines, the national law of the party concerned insofar as his capacity to
contract marriage is concerned is decisive. Corollary to this, Article 21 of the Family Code requires that aliens must
submit a certificate of legal capacity to contract marriage issued by their respective diplomatic or consular officials,
before they can be issued a marriage license.

Marriage by Proxy
A marriage by proxy is one where one of the parties is merely represented at the ceremony by a friend or delegate.
The following are the rules governing such a marriage: If celebrated in the Philippines the marriage is void. Article
6 of the Family Code requires the presence of both parties. It is said however that the rule holds true only in cases
where the marriage is between Filipinos or between a Filipino and a foreigner. In case the contracting parties are both
foreigners, then it would be a valid marriage provided their national law considers is such. It should be noted also that
the place where the proxy appears is considered where the marriage is celebrated. If celebrated abroad the rule is
lex loci celebrationis, whether the marriage is between Filipinos, foreigners or mixed. This is of course subject to the
usual exceptions (highly immoral etc.) and subject to special provisions as may be found in special laws (e.g.,
immigration laws for purpose of immigration).

Rules on Marriage as a Status
1 Personal rights & obligations between
husband & wife
National of husband
(Note: Effect of subsequent change of
1. If both will have a new nationality
the new one
2. If only one will change the last
common nationality
3. If no common nationality
nationality of husband at the time
Between Filipinos Lex loci celebrationis is without prejudice to
the exceptions under Articles 25, 35 (1, 4, 5
& 6), 36, 37 & 38 of the Family Code
(bigamous & incestuous marriages) &
consular marriages
Between Foreigners Lex loci celebrationis EXCEPT if the
marriage is:
1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered incestuous
(between brother-sister, and
Mixed Apply 1 (b) to uphold validity of marriage
in RP
Between Foreigners National law (Article 21, FC) PROVIDED
the marriage is not highly immoral or
universally considered incestuous)
Mixed National law of Filipino (otherwise public
policy may be militated against)
Marriage by proxy (NOTE: a marriage by
proxy is considered celebrated where the
proxy appears
Lex loci celebrationis (with prejudice to the
foregoing rules)
of wedding)
2 Property relations bet husband & wife National law of husband without prejudice
to what the CC provides concerning REAL
property located in the RP (Article 80)
(NOTE: Change of nationality has NO

The resultant relationship between a man and a woman who entered in a contract of marriage is one of personal
status. This status is created and destroyed by law and not by mere consent of the parties, and is of legal importance
to all the world. Marriage therefore creates social status or relation between the contracting parties in which not only
they but the state are interested and involves a personal union of those participating in it of a character unknown to
any human relations, and having more to do with the morals and civilization of people than any other institution.92 And
whenever a peculiar status is assigned by law to members of any particular class of persons, affecting their general
position in or with regard to the rest of the community, no one belonging to such class can vary by any contract the
rights and liabilities incident to this status.

Marriage as a status carries with it implications in two fields: the realm of personal rights and obligations of the
spouses, which is a filed of personal affair between the husband and wife and as such will not ordinarily be interfered
with by the courts of justice; and the realm of property relations, to which several judicial sanctions are applicable.

In our jurisdiction, the national law of the parties governs personal relations between the spouses. Thus, Article 15 of
the Civil Code states, 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.

Marital Property Relations in the Philippines
The pertinent provision regarding the property relations that govern between husband and wife in the Philippines can
be found in Title IV of the Family Code, particularly in the General Provisions found in Chapter 1 of the same Title.
Art. 74. The property relationship between husband and wife shall be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom.
The law recognizes that the property relation between spouses may be set by express agreement through a proper
and valid marriage settlement. Article 77 prescribes the conditions for the validity of a marriage settlement that it must
be in writing, signed by the parties, and made prior to the celebration of marriage. Generally the parties may stipulate
or agree to any arrangement in the marriage settlement for as long as it is not contrary to law and public policy and is
within the limits provided for in the Family Code.
Article 91 states that the absolute community property regime encompasses all the property owned by the spouses
at the time of the celebration of the marriage or acquired thereafter. Art 93 further provides that a presumption exists
that all property acquired during the marriage belongs to the absolute community.

Under the Conjugal Partnership of Gains regime 109 , the spouses place in a common fund the proceeds, products,
fruit and income from their separate properties, through effort or chance. In the event of dissolution of the marriage or
partnership, the benefit that accrued to the spouses shall be divided equally between them, unless otherwise stated
in the marriage settlement.

The third property regime is called the regime of Separation of Property in which case each spouse shall own,
dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other
Conflict of law problems arising from the property of the spouses are easily disposed of when there is a marriage
settlement that has been executed by the parties. But how does one face the same problem in the absence of such
settlement? The same Title and Chapter on the General Provisions provide the answer in the form of Article 80.
Art. 80. In the absence of a contrary stipulation in a marriage settlement, the property relations of
the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the
marriage and their residence. This rule shall not apply:
Where both spouses are aliens;
With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the
country where the property is located; and
With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a
foreign country whose laws require different formalities for its extrinsic validity. (124a)

The provision imposes the Philippine law in the absence of any agreement to the contrary where the contracting
parties are Filipino citizens. It further claims application even if the parties contracted marriage in another jurisdiction
or even if they decided to take up residence abroad. This takes into consideration Art 16 of the Civil Code of the
Philippines, the Situs Rule subjects the real and personal property to the law of the country where it is located or

The provision cites 3 exceptions when the Philippine law does not apply. First, the law defers application to
spouses who are both nationals of another state. Second, in case the parties entered into a contract which involves
properties abroad the extrinsic validity of such contract, whether executed here or abroad, will not be governed by
Philippine laws. And lastly, the law of the place where the property is situated outside the Philippines shall govern the
extrinsic validity of the contract entered into in the Philippines.

Article 80 seems to make reference only to the law of the place of the property concerned without distinction as to
whether the property involved is immovable or not. This is where we think Scoles' distinction between immovable and
movable property and his different treatment thereof would be helpful in filling the gaps in Art 80 of the Civil Code.

Personal rights and obligations between husband and the wife, all of which are generally governed by the national
law of the husband, but subject to the principles of characterization and to the exceptions to the application of proper
foreign law, include the following:
Mutual identity, cohabitation, and respect;
Mutual assistance and support;
Right of the wife to use the husbands name;
Duty of the wife to follow the husband to his residence or domicile.
Under Article 68 of the Family Code, the husband and wife are obliged to live together, observe mutual love, respect
and fidelity, and render mutual help and support.

Effect of Change of Nationality
If the husband will effect a subsequent change of nationality the following rules are believed applicable; If both the
husband and the wife will have a common nationality the new national law will govern their personal relations; If
only one will change nationality the common nationality will be applicable.
If there never was any common nationality the governing rule will be the national law of the husband at the time that
the marriage was entered into.

Duties of a Married Person
Duty to live together
Duty to observe mutual love and respect
Duty to observe mutual respect and fidelity
Duty to render mutual help and support

Procedure to Enforce Rights
To enforce rights granted by the husbands national law, resort is had to the lex fori, hence
should suits be litigated in the Philippines, our procedural rules will have to be followed.

Survey of jurisprudence related to the Recognition of the Inception of Marriage
Wong Woo Yu v. Vivo Thus, under Article 15 of our new Civil Code provides that family rights or to the status of
persons are binding upon citizens of the Philippines, even though living abroad, and it is well known that in 1929 in
order that a marriage celebrated in the Philippines may be valid, it must be solemnized either by a judge of any court
inferior to the Supreme Court, a justice of the peace, or a priest or minister of the gospel of any denomination duly
registered in the Philippine Library and Museum (Public Act 3412, Section 2).

Apt v. Apt If a marriage is good by the laws of the country where it is effected, it is good all the world over, no
matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or
would not constitute marriage in the country of domicile of one or other of the spouses. If the so-called marriage is no
marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if
conducted in the place of the parties domicile would be considered a good marriage.

The contract of marriage in this case was celebrated in Buenos Aires; that the ceremony was performed strictly in
accordance with the law of that country; that the celebration of marriage by proxy is a matter of form of the ceremony
or proceeding, and not an essential of the marriage; that there is nothing abhorrent to Christian ideas in the adoption
of that form; and that, in the absence of legislation to the contrary, there is no doctrine of public policy which entitles
me to hold to that the ceremony, valid where it was performed, is not effective in this country to constitute a valid

Sottomayor v. De Barros It is a well settled principle of law that the question of personal capacity to enter into
any contract is to be decided according to the law of the domicile.. the law of a country where a marriage is
solemnized must alone decide all questions relating to the validity of the ceremony by which the marriage is alleged
to have been constituted; but as in other contracts, so in that marriage, personal capacity must depend on the law of
the domicile, and if the laws of any country prohibits its subjects within certain degrees of consanguinity from
contracting marriage, and stamp a marriage between persons within the prohibited degrees as incestuous, this in our
opinion imposes on the subjects of that country a personal incapacity which contributes to affect them so long as they
are domiciled in that country where the law prevails, and renders invalid a marriage between persons, both a the time
of their marriage subjects of, and domiciled in the country which imposes the restriction wherever such marriage may
have been solemnized.


Overview of divorce/ kinds of divorce

Divorce is the legal dissolution of the marriage bond rendered by a competent court for causes defined by law which
arose after marriage. It presupposes that marriage is valid. Generally, there are two kinds of divorce:
(1) absolute (divorce a vinculo matrimoniee) where marital ties are dissolved
(2) relative (divorce a mensaet thoro) where parties remain married although they are allowed to live separately from
each other. Upon the enactment of the Civil Code, absolute divorce was no longer recognized except under Article 26
of the Family code wherein a divorce validly obtained by foreign spouse against the Filipino spouse is recognized and
given effect and the latter is free to re-marry as an exception to the general rule and when obtained by alien spouses.
However, relative divorce or more known as legal separation is allowed as provided for under Article 55 of the Family
The importance in determining whether a decree of divorce is valid or not is to ascertain the status of the parties and
to fix and make certain the property rights and interest of the parties such as custody, care and support of the

Philippine Conflicts Rule on Divorce
With the abolition of the absolute divorce under the Civil Code, the rule with reference to Filipino couples became
rigid and simple: as long as they are Filipino citizens, they cannot obtain a divorce decree abroad which would be
recognized in the Philippines. Likewise, Philippine courts are not available to aliens for the purpose of obtaining
absolute divorce decrees.

The rule on divorce in this jurisdiction was reiterated in the case of Tenchavez vs. Escano, as follows: The Civil Code
of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo matrimonii; and in fact does not even
use that term, to further emphasize its restrictive policy on the matter, in contrast to the preceding legislation that
admitted absolute divorce on grounds of adultery of the wife or concubinage of the husband (Act No. 2710). Instead
of divorce, the present Civil Code only provides for legal separation (Title IV, Book I, Arts. 97 to 108), and, even in
that case, it expressly prescribes that bonds shall not be severed (Art. 106, subpar. 1). Although as a rule divorce is
not recognized in this jurisdiction, divorce is allowed in the following instances: between foreign spouses and by a
foreigner in his country or in a country which grants divorce, who is married to a Filipino citizen is recognized insofar
as the foreigner is concerned. As to the first instance wherein divorce is between foreign spouses, the Court
considers the absolute divorce between foreign spouse as valid and binding in the Philippines on the ground that the
status and dissolution of the marriage are governed by their national law except when they contravene the law or
public policy of the country. On the other hand, divorce legally obtained by foreign spouse against the Filipino spouse
is expressly provided for under the second paragraph of Article 26 of the Family Code: 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 likewise have capacity to remarry under
Philippine Law. The above-quoted provision was enacted to correct the unfair situation, where the status of a person
would depend on the territory where the question arises: in the Philippines, the Filipino spouse would still be legally
married and cannot re-marry; while abroad, the person who secured the divorce was no longer married to the former
and could thus remarry. However, said article does not recognize the divorce between an alien spouse and a Filipino
spouse if the divorce is obtained by the latter nor does a divorce between Filipino spouses. But the Filipino spouse
may go around the prohibition by first acquiring a foreign citizenship, as by naturalization in a foreign country, and
having done so, he/ she as a foreigner can then obtain a divorce, which will then be recognized under Article 26, if
done in good faith.

Law governing divorce
Since Article 26 of the Family Code recognizes divorce obtained by an alien spouse married to a Filipino spouse, the
question which law governs the divorce is important to determine whether the divorce obtained by the alien spouse is
valid. In the United States, the local law of the domiciliary state in which the action is brought will be applied to
determine the right to divorce. Thus, the plaintiff or petitioner must have his domicile in the state or country where the
complaint for divorce is filed by him/her.
The rationale for the above rule is based on the fact that the state of a persons domicile has the dominant interest in
the persons marital status and therefore has judicial jurisdiction to grant him a divorce. So long as the alien spouse
has acquired a domicile in the country where he/she secured the divorce, the divorce obtained therein from his/her
Filipino spouse may be regarded as valid in the country, under Section 26 of the Family Code, and will entitle the
former Filipino spouse to remarry. Philippine courts have no jurisdiction over a petition for divorce, it being outlawed
in the country. The Hague Convention Relating to Divorce and Separation of 1902 provides that the granting of
divorce or separation must comply with the national law of the spouses and the law of the place where the application
for divorce is made.103

Relative divorce or otherwise known as legal separation under the Family Code was developed by the ecclesiastical
courts at a time when, following the downfall of Rome, the supremacy of the Church was recognized and the
marriage tie regarded as indissoluble. The Siete Partidas, the governing Law here during the Spanish regime,
allowed relative divorce only. Article 55 of the Family Code provides the grounds by which the innocent spouse may
file an action for legal separation. An action for legal separation must be filed within five (5) years from the time of the
occurrence but such action shall in no case be tried before six months shall have elapsed since the filing of the
petition to give the spouse the chance to reconcile.
The laws governing absolute divorce are applicable to legal separation as provided for in the Hague Convention
Relating to Divorce and Legal Separation of 1902.