legible copy of the marriage contract, shall be sent by the person solemnizing the marriage to the local civil registrar of the municipality where it was per-
PERSONS AND FAMILY RELATIONS LAW 184
formed within the period of thirty days after the performance of the marriage. (73a)
Article 31. A marriage in articulo mortis be- tween passengers or crew members may also be solemnized by a ship captain or by an airplane pi- lot not only while the ship is at sea or the plane is in fl ight, but also during stopovers at ports of call. (74a)
Article 32. A military commander of a unit, who is a commissioned offi cer, shall likewise have authority to solemnize marriages in articulo mortis between persons within the zone of military opera- tion, whether members of the armed forces or civil- ians. (74a)
Article 33. Marriages among Muslims or among members of the ethnic cultural communities may be performed validly without the necessity of a marriage license, provided they are solemnized in accordance with their customs, rites or practices. (78a)
Article 34. No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least fi ve years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affi davit before any person authorized by law to administer oaths. The solemnizing offi cer shall also state under oath that he ascertained the qualifi cations of the contracting parties and found no legal impediment to the marriage. (76a)
EXEMPTION FROM MARRIAGE LICENSE. Articles 27, 28, 31, 32, 33 and 34 are situations where the contracting parties need not obtain a marriage license prior to getting validly married. These situations are explicitly declared by Article 3(2) as exceptions to the formal requirement of a valid marriage license. These exceptions are likewise referred to in Article 9, which provides that a “marriage license shall be issued by the local civil registrar of the city or municipality where either of the contracting parties habitually reside, except in a marriage where no license is required Arts. 27-34
in accordance with Chapter 2 of this Title.” Except for Muslims who are now governed by the Code of Muslim Personal Laws of the Philippines, the various ethnic groups in the Philippines and the contracting parties referred to in the said articles must comply with all other essential and formal requirements provided under Articles 2 and 3 of the Family Code. Also, the solemnizing offi cer must be authorized to solemnize the marriage under Article 7. Moreover, their marriage should not fall under those declared as void under Articles 35, 36, 37, 38, 40, 41, 44 and 53 of the Family Code.
The reasons for the exceptions are mainly anchored on necessity and practicality such as in the case of marriages in articulo mortis where at least one of the parties is in the brink of death and of marriages in remote places; on the respect for and recognition of the customs and practices of Muslims and ethnic minorities; and on the policy of the state to, as much as possible, validate or legitimize illicit cohabitation between persons who do not suffer any legal impediment to marry.
FAR AREAS. If the residence of either party is so located that there is no means of transportation to enable such party to appear personally before the local civil registrar, the marriage may be solemnized without necessity of a marriage license. A sacred institution like marriage should always be encouraged. Without this provision, illicit relationships may proliferate only because the parties could not get a marriage license with really no fault on their part.
SOLEMNIZING OFFICERS UNDER ARTICLE 7 AND THE MAYOR. It must be observed that, on the basis of Article 27, all those who are authorized to solemnize a marriage enumerated in Article 7 and the mayor are empowered to act as the solemnizer of a marriage even without a valid marriage license if either or both of the contracting parties are at the point of death. The marriage will remain valid even if the ailing party subsequently survives. The judge must, however, solemnize the marriage within his jurisdiction and the imam, priest or rabbi or any minister of a particular sect or religious group must comply with the requisites provided in Article 7(2). The consul or consul general abroad can only do so if the parties are both Filipinos as provided for in Article 7(5) in relation to Article 10.
CHIEF PILOT AND SHIP CAPTAINS. A chief pilot or a ship captain may solemnize only marriages in articulo mortis while the plane is in fl ight or the ship is at sea and even during stopovers
PERSONS AND FAMILY RELATIONS LAW 186
at ports of call. They can solemnize marriages only among their passengers and crew members.
MILITARY COMMANDER. As far as the military commander is concerned, he or she must be a commissioned offi cer, which means that his or her rank should start from a second lieutenant, ensign and above (Webster Dictionary, 1991 edition). He or she must likewise be a commander of a unit, which means any subdivision (regiment, battalion, etc.) of an army whose strength is laid down by regulations (Webster Dictionary, 1991 edition). However, from the deliberations of the Civil Code revision committee, it appears that “unit” has been referred to be at least a “battalion” (Minutes of the Civil Code Revision Committee held on May 23, 1983, page 4). Also he or she can only solemnize a marriage if it is in articulo mortis and in the absence of a chaplain. The marriage must be solemnized within the zone of military operation and during such military operation. The contracting parties may either be members of the armed forces or civilians.
MUSLIM AND ETHNIC GROUPS. It is interesting to note that under the Civil Code, for as long as the marriages of ethnic groups, pagans and Muslims were performed in accordance with their customs, rites and practices, such marriages were considered valid (Article 78 of the Civil Code). The previous law likewise even provided that the formal requisites of a marriage need not be complied with including the authority of the solemnizing offi cer as defi ned in the Civil Code. The privilege given to these Filipinos, according to the Civil Code, was good only for twenty years from the time the Civil Code took effect in 1950 unless prolonged or shortened by the President. After the period had lapsed, these Filipinos had to comply with the mandates of the Civil Code just like any other Filipino.
Subsequently, the Code of Muslim Personal Laws of the Philippines was signed on February 4, 1977 and became effective in the same year. This particular law governs the law on persons and family relations among Muslims. It does not provide that, for a marriage to be valid, a marriage license has to be procured by the contracting parties. On August 3, 1988, the new Family Code took effect, expressly providing that the Muslims and ethnic groups are exempted only from procuring a marriage license for as long as the marriage will be solemnized in accordance with their customs, rites and practices. In effect, the code commission was consistent with the Code of Muslim Personal Laws of the Philippines in so far as not requiring Muslims to obtain a marriage license.
Under Republic Act No. 6766, the Organic Act for the Cordillera Autonomous Region (CAR), Article X, sec. 2 provides: “Marriages solemnized between or among members of the indigenous tribal group or cultural community in accordance with the indigenous customary laws of the place shall be valid, and the dissolution thereof in accordance with these laws shall be recognized.”
However, as to other ethnic groups in the Philippines, they are still governed by the Family Code, as they do not have a separate law like the Code of Muslim Personal Laws of the Philippines for the Muslims or the Organic Act of the Cordillera Autonomous Region.
COHABITATION FOR FIVE YEARS. With respect to the exemption relative to persons cohabiting for at least fi ve years under Article 34 of the Family Code, it must be observed that their living together as husband and wife must meet two distinct conditions namely: 1) they must live as such for at least fi ve years characterized by exclusivity and continuity that is unbroken. (Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435); and 2) they must be without any legal impediment to marry each other. While both conditions must concur, they do not qualify each other. In other words, during the fi ve-year period, it is not necessary that they must not have suffered from any legal impediment. The second condition as to the absence of any legal impediment must be construed to refer only to the time of the actual marriage celebration. Hence, the parties must be without legal impediment only at the time of the marriage ceremony and not during all those previous fi ve (5) years. This must be the interpretation because the essential requirements under Article 2 and the formal requirements under Article 3 for a valid marriage must be present only at the celebration of the marriage and not at any other point in time. The fi ve-year period is not among the said essential and formal requirements. Neither could such time element add or diminish the legal effects of the said essential and formal requirements. This, in fact, is the intention of the drafters of the Family Code. It was Justice Puno who recommended the phrase relative to the absence of legal impediment, thus:
Justice Puno suggested that they say “and having no legal impediment to marry.”
Justice Reyes, however, commented that the provision may be misinterpreted to mean that during the fi ve years, the couple should have capacity to marry each other. Justice Puno opined that the idea in the provision is that, at the time of the marriage, there is no legal impediment to said marriage. Judge
PERSONS AND FAMILY RELATIONS LAW 188
Diy remarked that it may appear that they are consenting to an adulterous relationship. Justice Caguioa pointed out that what is important is that at the time of the marriage, both parties are capacitated to marry (Minutes of the 150th joint Civil Code and Family Law committees held on August 9, 1986, page 3).
This must be the interpretation of the law if the intention of the Code Commission is to really improve the previous provision contained in Article 76 of the Civil Code. It must be noted that the said Article 76 of the Civil Code, which has been repealed by Article 34 of the Family Code, had three conditions for the exemption to apply, namely: 1) the contracting parties must have lived as husband and wife for at least fi ve years; 2) they must have attained the age of majority; and 3) they must be unmarried. Although these conditions should likewise concur, they did not qualify each other. Clearly, instead of providing specifi c conditions such as the attainment of the age of majority and the status of being “unmarried” which seem to indicate that, under the Civil Code, these were the only legal impediments pertinent in determining the application of the exemption, the Family Code now provides a broader condition by an amendment providing that no legal impediment must exist with respect to the contracting parties. There are no more specifi c types of legal impediments. The phrase “legal impediment” under Article 34 of the Family Code refers to any possible ground or basis under the Family Code, including non-age and the status of being already married among others, to make a marriage infi rm. But the presence or absence of such legal impediment should only be considered at the time of the celebration of the marriage ceremony.
Unlike Article 34 of the Family Code, the repealed Article 76 of the Civil Code made it mandatory that, during the whole fi ve (5)-year period, the contracting parties must be unmarried. Hence, under the repealed law, a person who was married at anytime during the fi ve- year period and who was living with another person cannot avail of the exception in case he or she intends to marry his or her live- in partner after his or her legitimate spouse died. In short, there must be no such legal impediment during the whole fi ve-year period (Niñal v. Bayadog, G.R. No. 133778, March 14, 2000, 328 SCRA 122). Under Article 34 of the Family Code, however, for as long as there is no legal impediment at the time of the marriage ceremony, the parties can avail of the exception (Manzano v. Sanchez, AM No. MTJ 00-1329, March 8, 2001). Hence, under the Family Code, a spouse who was living-in with his or her paramour can avail of Arts. 27-34
this exception and marry his or her paramour without a marriage license after the death of his or her legal spouse.
Under this exception, the contracting parties shall state the fact of their cohabitation for at least fi ve years and the absence of any legal impediment to marry in an affi davit before any person authorized by law to administer oaths. The solemnizing offi cer shall also state under oath that he ascertained the qualifi cations of the contracting parties and found no legal impediment to the marriage. The failure of the solemnizing offi cer to investigate shall not invalidate the marriage. In Cosca v. Palaypayon, 55 SCAD 759, 237 SCRA 249, where a judge solemnized a marriage involving a party who was only 18 years of age without a marriage license on the basis of an affi davit where the parties indicated that they lived together as husband and wife for six years already, the Supreme Court held that the judge acted improperly because he should have conducted fi rst an investigation as to the qualifi cation of the parties. The judge should have been alerted by the fact that the child was 18 years old at the time of the marriage ceremony, which means that the parties started living together when the 18-year-old was barely 13 years of age. There was a probability that the affi davit was forged. Nevertheless, the Supreme Court did not state that the marriage was void because clearly at the time of the marriage ceremony, the parties had no legal impediment to marry.
The aim of this provision is to avoid exposing the parties to humiliation, shame and embarrassment concomitant with the scandalous cohabitation of persons outside a valid marriage due to the publication of every applicant’s name for a marriage license (De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162).
In De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008, 545 SCRA 162, the Supreme Court ruled the nullity of a marriage on the ground of absence of a valid marriage license upon evidence that there was in fact no cohabitation for fi ve years contrary to the statements in the falsifi ed affi davit executed by the parties. The falsity of the affi davit cannot be considered to be a mere irregularity considering that the 5-year period is a substantial requirement of the law to be exempted from obtaining a marriage license (See also Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435).
DIRECTORY REQUIREMENTS. The procedure laid down in Articles 29 to 30 of the Family Code relative to the duties of
PERSONS AND FAMILY RELATIONS LAW 190
the solemnizing offi cer with respect to the affi davit he or she has to execute is merely directory in character. Non-observance of the requirements will not render the marriage void or annullable (Loria v. Felix, 55 O.G. 8118). However, under the Marriage Law of 1929, any offi cer, priest or minister who, having solemnized a marriage in articulo mortis or any other marriage of an exceptional character, shall fail to comply with the provisions of Chapter II of this Act (now Chapter 2, Title I of the Family Code), shall be punished by imprisonment for not less than one month nor more than two years, or by a fi ne of not less than three hundred pesos nor more than two thousand pesos, or both, in the discretion of the court.