Article 26 paragraph 2
Marinay
If you would note that the provision says that Filipino
and a foreigner and subsequently the foreigner spouse
obtains a decree of divorce validly capacitating him or
her to remarry, the Filipino spouse shall likewise be
capacitated to remarry under Philippine law
Republic Vs. Iyoy
Despise the application of (article 26) because Iyoy, at
the time of the issuance of the decree of divorce, was
still a Filipino. And thus, should not invoke article 26
paragraph 2; which is not true in the case of Republic
vs. Orbecido III.
Republic vs. Orbecido III.
in this case, while both were Filipino at the time of the
celebration of the marriage, then the wife migrated to
the U.S and renounce Philippine citizenship and
obtains a decree of divorce and furnished a copy of the
said decree to the husband who now filed a petition
before the court praying for recognition of the decree of
divorce and that he further prays that he be declared
capacitated to remarry under our law. And the republic
opposed the petition saying that article 26 paragraph 2
finds no application in as much as at the time of the
celebration of the marriage, both were still Filipinos.
What is covered by article 26 paragraph 2 refers to the
a Filipino and a foreigner at the time of the
solemnization. But the Supreme court Citing article 10
of the Civil code, in case of doubt in the interpretation
and application of law, it intended by congress that
justice shall prevail. So it would be injustice on the part
of the husband if the court will not grant his petition
because he would find himself in a very absurd
situation where he is still married to the former wife
where the latter is remarried to someone else. So for
that reason, the supreme court arrived at a decision
that it is not the citizenship of the parties at the time of
the celebration of the marriage but rather the
citizenship of the parties at the time the divorce was
obtained.
Corpus vs. Sto. Tomas
Of course article 26 finds no application because mr.
corpus is not a Filipino citizen; he is governed by his
national law pursuant to article 15 on his rights, and
duties, status, condition, so he is governed by his
national law. Moreover, we do not take judicial notice
of foreign judgements. So he must prove that he is
capacitated to contract marriage pursuant to rule 132
sections 24 and 25 of the rules of court. Because these
are the judgement on granting the decree of divorce is
factual in nature. Although eventually the supreme
court granted because the wife also affirmed, only that
she is financially incapable of filing the petition.
Fujiki vs.
The court allowed Fujiki to file petition for recognition of
the decree of nullity of marinay’s marriage with mikara
on the ground of bigamy because this is according to
the court, a valid ground for the declaration of nullity
under our law. And moreover, fujiki has the legal
standing because being the husband of marinay, his
civil status would be affected.
Koike vs. koike
The court remanded the petition for declaration of the
decree of divorce to the lower court due to the failure
of presenting the civil code of japan that is properly
authenticated by our consular official assigned where
the document is kept.
Republic v. Marelyn Tanedo Manalo
Liberal interpretation of article 26 paragraph 2 because
according to the court, Article 15 of the civil code is not
an unbending and rigid rule. It admits exceptions, and
one of its exceptions is article 26 paragraph 2. Another
issue raised here is that it should be the foreigner
spouse who should obtain the decree of divorce. Take
note that in this case, it is Tanedo herself who filed this
petition of divorce before the Japanese tribunal. How
was this resolved by the court?
Morisono case
Ruling is based on Tañedo case. This is the current
jurisprudence: on those marriages, where one of the
spouses is a foreigner, but it was the Filipino spouse
who obtained the decree of divorce, would that be in
consonance with article 26 para. 2? Because you will
notice in the case of Manalo, the state argued that it
would open the floodgates of Filipino women marrying
foreigners and then eventually filing petitions for decree
of divorce.
What are those marriages that are exempted from
obtaining a marriage license requirement?
1st marriages in articulo mortis, whether it was
solemnized by the ship captain or the airplane chief, or
the military commander by unit in the absence of the
chaplain.
With respect to marriages celebrated by reason of the
impending death of one or both parties, there is this
requirement on the part of the solemnizing officer-
(inaudible)
2nd where both parties are living in a very remote place
where there is no means of transportation as to enable
them to appear personally before the office of the local
civil registrar. There is also a requirement on the part
of the solemnizing officer on this kind of marriage
where the marriage license is not required
3rd marriages of muslims and other ethnic communities
provided that their marriages are solemnized according
to their rights, customs and traditions
Article 34 COHABITATION
*requirement: execute an affidavit of cohabitation.
there were 2 differing decisions in this particular
provision. Niñal v. Badayog- the entire 5 years of
cohabitation must be free from any impediment
counted from the day that they started living together
as husband and wife without the benefit of marriage.
Supreme court said that it must be one akin to a perfect
union and is rendered imperfect only by reason of
absence of marriage ceremony.
Sanchez case- the court held that under the family
code, it is sufficient that the impediment is absent at the
time of the celebration of the marriage. It is not required
that the entire 5 year cohabitation is free from legal
impediments. What remains a mandatory requirement
is that the cohabitation must be continuous and must
not be one that is intermittent.
BECAUSE YOU ARE STILL 1ST YEARS, STICK TO
THE RULING OF NIÑAL AND MANZANO
CIVIL CODE-FOLLOW NIÑAL RULING
FAMILY CODE- SANCHEZ RULING
In fourth year, you will be told to answer questions the
court would flip-flop in its decision so it is not yet your
time. Just stick to the ruling of the court where the
marriage is celebrated under the civil code. So what will
govern respecting 5 year cohabitation period and
marriages celebrated under the family code where the
parties thereto have been living together as husband and
wife for 5 consecutive years without the benefit of the
marriage.
Now, assuming that 5 year cohabitation period have fully
complied with, what will be executed by the parties? Now
instead of obtaining the marriage license, they have to
execute an affidavit of cohabitation because that would
serve as a substitute for the marriage license. The absence
however of that 5 year cohabitation period, but despite
with the non-compliance of that 5 year cohabitation
requirement, the parties would try to evade the
requirement of the marriage license by executing an
affidavit of cohabitation. The supreme court rule in the
case of
Dayot vs Dayot
The the said affidavit has no value whatsoever and it
becomes a mere scrap of paper rendering the marriage
void by reason of the absence of the marriage license and
it cannot be used likewise as a defense.
Santiago vs People
The wife was together with the husband who had
unfortunately escape, that’s only the wife who is
apprehended and invoked the defense that the one of the
elements of bigamy is lacking because the subsequent
marriage is void due to the absence of the marriage license
but the orally in fact there was non-compliance of the
affidavit of cohabitation because there is merely an oral
manifestation before the solemnizing officer the they have
been living together as husband and wife for 5 years.
According to accuse that she could not be held liable for
bigamy because one of the elements of bigamy is not
present. There was no valid marriage between her and the
accused. But the supreme court said siting the case of
tenebro vs people and court of appeals that she cannot
escape the criminal liability by invoking the nullity of the
marriage because it will just be very easy for the parties to
the marriage to enter into a very flawed marriage adherers
the same as the defense when sued for bigamy and cited
in its earlier ruling in the case of Tenebro vs People.\
Article 35, what are those void marriages? Article 35
number 1 refers to parties who are below 18. So that could
be in relation to article 5 of the family code. So even with
the consent of the parents, that will still be void. Article 26
paragraph 1 likewise, this being void cannot be ratified.
The only exception is number 2 of article 35 referring to
the absence of authority of the solemnizing officer where
it can be cured by the belief on good faith by one of the
contracting parties that the solemnizing officer had the
authority to do so. As I have mentioned before, the belief
of good faith can only be used if the solemnizing officer
will be those fall in article 7 number 2 because they are
really authorized to solemnized marriages only that they
have to be licensed to be issued coming from the civil
registrar general, thus that requirement of having
registered themselves with the civil registrar general
because with the registration comes with it the license to
solemnize marriages. This cannot be used by the parties
with respect to number 1 because there itself is specific
incumbent member of the judiciary. So being a member of
the judiciary of incumbent is the reason why they are
authorized to solemnized marriages which can be deprived
from the in the event of their suspension from being a
judge.
Number 3 would refer to the marriage license requirement
subject to I have discussed earlier. What are those that are
exempt from marriage license requirement.
Number 4 – polygamous and bigamous marriages except
the marriage in article 41 provided all the requisites are
applied with
Number 5- we have the mistake as to the identity of one
of the contracting parties. Under the civil code, it is a
merely a ground for annulment, not a ground for nullity.
REMEMBER THAT
Number 6 – Subsequent marriages that are void under
article 53 due to the fact that the parties to a declared void
or annulled marriage did not comply to the requirements
under article 52 that refers to the distribution, liquidation
and partition of either the absolute community or the
conjugal partnership, Delivery the children’s presumptive
legitimes and of course, the registration of the decree of
nullity or annulment in the APPROPRIATE civil registrar.
Those are the void marriages under article 35.
Article 36- Psychological incapacity. Now remember that
once the petition is for declaration of marriage under
article 36, GO BACK ALWAYS TO HOW IT WAS DEFINED BY
THE SUPREME COURT IN THAT VERY FIRST CASE OF
SANTOS VS COURT OF APPEALS. What constitutes
psychological incapacity? Furthermore, the characteristics
of psychological incapacity. There are 3 characteristics and
the most difficult to prove is the juridical antecedence. So
there must be a correlation to the failure of either the
husband or the wife comply with the essential marital
obligation of marriage as stated in case of MOLINA AND
COURT OF APPEALS, referring to
Article 68 - with the obligation to live together as husband
and wife, observe mutual love, fidelity and respect and to
render help and support
Article 69 – fixing the family domicile
Article 70 – support for the family
Article 71 – Management of household
Article 220 – obligations of parents toward their children
Article 221 – civil liability of parents toward the tort
committed by their child even beyond the age of majority
but below 21 if living in their company and under their
authority and
Article 225 – referring to the administration to the
property of the unemancipated child by the father and the
mother
These are essential obligation of the marriage. So I said
there must be a correlation. This must be established that
the psychological incapacity had already existed prior to
the marriage although its overt manifestations emerged
only during the marriage. That is why, marriages under
article 36 are initially valid because they comply all the
essential and marital obligations of marriage while it will
be true once it is proven, the one of the parties thereto is
psychological incapacitated, nonetheless it has legal
consequences arising from that declaration of nullity of
marriages. So while it is retroactive, but the supreme court
held in the case of TENEBRO VS PEOPLE, one of the effects
thereto is that children born out of void marriages are
legitimate and likewise even if the marriages is declared
void under article 36, even if the parties thereto
contracted a subsequent marriages, they are still liable for
bigamy under article 349 of RPC because it will be very
easy for the parties as in the case of SANTIAGO VS PEOPLE
to invoke the nullity of the void marriage to escape
criminal liability.
Republic vs Court of appeals and MOLINA
The supreme court also laid down the guidelines to be
observed by the petitioner in order that one’s petition for
declaration of nullity of article 36 shall prosper
MARCOS VS MARCOS
but the Molina guidelines relaxed by the supreme court in
the case of MARCOS vs MARCOS where it is stated that it is
no longer a mandatory requirement that the alleged
psychological incapacitated spouse must be medically and
clinically examined. It is sufficient that the totality of
evidence would show that spouse is indeed psychological
incapacitated to comply with his or her essential marital
obligations on marriage then the marriage will be declared
void under article 36. It denied the petition in the case of
MARCOS VS MARCOS because it was not established that
there was juridical antecedence. The problem only got up
when marcos was separated from presidential security
group and was not able to provide employment.
DEDEL VS DEDEL
There was this testimony of clinical psychiatrist is from the
aggrieved wife Sharon but the Supreme Court said that it
was not juridically established, there was no juridical
antecedence. As I have discussed in TENEBRO, who
contracted 3 marriages then was sued for bigamy. Then,
the subsequent marriage was declared void so the defense
was that with the declaration of nullity would not be held
liable for bigamy. The same arrived by the court in the case
of HALILI vs HALILI.
REPUBLIC VS HAMANO
The Supreme Court went back to the Molina guidelines,
there must be strict compliance.
ANTONIO VS REYES
The Supreme Court granted the petition because aside
from the testimony, there were two that testified in behalf
of the petitioner of the psychologist, there was also a
declaration of annulment of marriage because article 36
remember is canon 1085 of the Catholic Church. In this
case, He also presented that decree of annulment that was
affirmed even by the Roman Rota declaring the marriage
of Antonio and Reyes as annulled pursuant to canon 1085
of the canon law.
NAJERA VS NAJERA
The Supreme Court denied the petition because the bases
of the proof that was presented by the petitioner
regarding the annulment of the marriage is based on
psychological incapacity, but rather the grave lack of
discretion but not on psychological incapacity,
FERRARIS VS FERRARIS
The statements given by the Psychologist is based solely
on the statements given by the wife so, according to the
court all of these were hearsay.
PARAS VS PARAS
It does not mean that a lawyer is unfit to become a
member of a legal profession, he is likewise unfit to be a
father. That was answered by the Supreme Court because
in this case, what the petitioner gave is to present the very
same proofs or evidence that He had presented when He
filed his petition for his disbarment of the husband.
In the case of Halili vs Halili, the petition for
declaration of nullity under article 36 was denied by the
court but when xxx file a motion for reconsideration, the
court after it had made an earlier decision in the case
of Te vs. Te, that the husband is suffering form
dependent personality disorder and the wife from
narcissistic personality disorder.
Ting vs. Ting, the issue here is was there now an
embodiment of Molina guidelines, the Supreme Court
held in negative, it is actually the relaxation of the
Molina guidelines because in the case of Te vs. Te, the
Supreme Court held that the Molina guidelines had
become a strait-jacket where they are supposed to fit-
in all petitions for declaration of nullity of marriage
under Article 36 on that Molina guidelines which should
not be, RATHER, each petition should be decided on a
case to case basis; not based on wholly and solely on
the Molina guidelines.
In the case of Azcueta vs. Republic, the court also
held that the husband is suffering from dependent
personality disorder or the dissolution of the marriage
under Article 36. in the case of Kalaw vs. Fernandez,
initially the court denied the petition but his motion for
reconsideration the Supreme Court said that the
testimony of the respective psychiatrist including that
of the priest should be taken together not in isolation,
and thus it reverse itself and granted the petition, not in
the case of Republic vs. Romero because there was no
juridical antecedents.
On the subsequent cases, Matudan, Castillo, Del
Rosario, Bakunawa, Singson, Tionglico, Dan, all of
these were denied by the Supreme Court by citing the
Molina guidelines. So, you would notice that the
Supreme Court cannot arrive at one particular decision,
whether to follow strictly the Molina guidelines or to
relax. But there are instances of course that the
Supreme Court said that instead of the Molina
guidelines, the totality of the evidence must also be
sufficient. It's for you to read because the Court
depending on how it appreciated.
In the case of De la Fuente vs. De la Fuente,
however, the psychological incapacity existed during
the childhood years and developed in his early
adolescent years of the psychological incapacity of
that husband warranting the grant of petition of the wife
declaring their marriage with the husband void. So,
he's suffering from paranoid personality disorder and
there has been juridical antecedents. In Republic vs.
Javier, it declared as the husband psychologically
incapacitated but not the wife. In Republic
vs. Liberato, the court granted the petition filed by the
husband because the wife is suffering from Histrionic
personality disorder and the husband does not want to
terminate the marriage but nonetheless the wife
refused to give the marriage another chance.
ARTICLE 37 - VOID MARRIAGES. That the marriage
is incestuous exception of thee that between of a
brother and a sister. they are not ascendant and
descendant of each other. they are siblings, but they
are collateral relatives, first degree.*There is no first
degree cousins, and if it will not fall under Article 37,
rather it will fall under Article 38, marriages are void for
reasons of public policy. *Take Note: the enumerations
made herein is exclusive. So, those not found there are
presumed to be valid marriages. So there was this
questions in the sister-in-law and brother-in-law, so I
said, find it if it is included in the enumeration, and the
illegitimate child of the adapter and the adopted child,
is there a such prohibition under Article 38. There must
be a pronouncement coming from the court, that the
killing is motivated with the intention to marry the other.
So, that's the requirement, because without the
determination coming from the court, the marriage is
valid there is no need for a criminal prosecution. It
might be on issues involving inheritance because
collaterally the marriage may be attacked whether
there is a need to determine as to who really has the
right over the estate of the deceased, and one of which
is the collateral attack on the validity of marriage which
initially we have to follow the law cannot be collaterally
attack just like filiation, but because there is a need to
determine who must really the right to the estate then
that xx 36:40 xx
Now, we go to Article 40, this refers to the requirement
of having a void marriage be declared by the court
because parties to the marriage cannot declare to unto
themselves the nullity of their marriage, there must be
a court declaration. Such requirement however is not
found in the civil void. both marriages where
celebrated under the CC and the first marriage is void,
the parties to the void marriage did not need to go to
court to obtain a decree of nullity of the previous void
marriage. Without the declaration coming from the
court, then the subsequent marriage shall be void, but
it is one exceptional in character in the sense that when
we talk the property relations between the husband and
the wife, it is not govern by 147 or 148 of but rather by
express provision of Article 50, this is one of those that
will govern either the absolute community or the
conjugal partnership. Meaning, that the effects thereof
are akin to that of the valid marriage, only that it is void
however the effects would be akin to that the valid
marriage because of the provision of article 50, that
would refer to the subsequent void marriage. It
mentioned of article 40, there are two (2) void
marriages under article 40, which of the two void
marriages under article 40 should be governed with
respect to the liquidation of the properties by either
Absolute Community or Conjugal; Articles 102 and
129. When we talk of the Absolute community, it refers
to Article 102. When we talk of conjugal, it refers to
Article 129. That was answered by the SC that refers
to the subsequent void marriage. Void because of the
absence of declaration of nullity of the previous void
marriage.
Castillo vs Castillo
Reiteration of the provision in the CC that in both
marriages which are celebrated under the CC, there is
no requirement of having the first void marriage be
declared void. Because such is not required under the
CC. But when one is under the CC and the other is
under the FC, the non-requirement of having the
previous void marriage celebrated under CC be
declared void. Because as held by the SC in the case
of Atienza vs Brilliantes, article 40 is a rule of
procedure as such it can be given retroactive effect.
Article 41
GR: If one contracts a subsequent marriage despite the
subsistence of the prior marriage , the said marriage
shall be void and the parties thereto shall be liable for
bigamy. XPN: Article 41 is the Exception. If the 4
requisites as stated by the SC in the case of Nolasco.
Where SC said that pursuant to article 41
a. One of the spouses had been missing
four 4 consecutive years and 2 years if
the disappearance is coupled with any of
the danger of death as defined by the
article 391 of the civil code. [A.391
Danger of Death] refers to the passenger
of a ship or an airplane and both the
airplane/ship and the passenger
disappeared. A member of the Armed
Forces of the Philippines participated in
war.
b. Spouse present must have a well-
founded belief that the absent spouse is
already death.
c. It is solely for the purpose of remarriage
d. Obtains a decree of presumptive death
So these are the 4 requisites that must be complied
with.
Going back to the CC, there is no need for declaration
of presumptive death because the law itself provides
for the presumption of death pursuant to article 390 that
refers to a person who had been missing for 7
consecutive years whereby he is presumed dead for all
purposes except that on his succession. Thus, there is
no need for declaration of presumptive death.
However, that period of 7 years may be shortened and
this was answered by the SC in the case of Calisterio.
If it is less than 7 years provided the spouse present
has considered the absent spouse to be dead and
believed to be so, that is the only requirement. Which
is different under the FC, under FC it is the well-
founded belief. Under FC, only the spouse present who
is given the right to file a petition for declaration of
presumptive death. Otherwise, it will be easy for the
parties of the marriage to agree that one of them shall
disappear and subsequently will file for a declaration
for PD.
In the case of Nolasco, the court denied the petition
because there was absent of Well-founded belief on
the part of the husband. He did not report the
disappearance of the foreigner spouse to the
appropriate authorities including the embassy of the
alien spouse. Aside from failure to report the
disappearance of the wife to the proper authorities,
there was no other evidence that he presented while
he said that he had gone to the place as far as London,
but the wife is not a resident of that particular place.
Likewise, the letters that he alleged to have been
written were never presented in court.
In Calisterio, it is different in the sense that the first
husband disappeared when the CC was still the
prevailing law while the subsequent marriage was
contracted under the CC. issue is about the validity of
the subsequent marriage. SC said that, that marriage
is valid. No need for declaration of presumptive death;
such is not required under CC provided the 7-year
period in relation to article 390 had been complied with.
Even if shorter than that, the spouse present
considered the absent spouse dead and believed to be
so. Which is different under the FC.

Manuel vs People
Who contracted marriage after 21 years after the
disappearance of the first wife, but did not obtain a
decree of PD when he contracted subsequent marriage
in 1992 due to his defense that it is the law itself that
provides for the PD. The SC said that the best evidence
that he contracted subsequent marriage to obtain is the
same decree of PD. Thus he can be held liable for
bigamy.

Republic vs CA and Alegro

the same must be denied by the SC due to the absence
of well-founded belief on the part of the husband that
the wife may be dead. He failed to seek assistance
from the in-laws who were actually owners of a radio
station and likewise he also did not present the
bestfriend of wife who can be asked about the
whereabouts of the wife. Likewise, also no reporting of
the disappearance to the proper authorities. He merely
thought of it after he got information that his petition for
declaration of PD will be denied by the court.

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