III.

FAMILY CODE
Executive Order No. 209

A. MARRIAGE
1. General Principles
A. State Policy on Marriage
Art. 1. Marriage is a special contract of permanent union between a man and a woman
entered into in accordance with 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.

MARRIAGE
➢ different from an ordinary contract based on the following distinctions:
1.) It cannot be revoked, dissolved, or otherwise terminated by the parties, but only by the
sovereign power of the state.
2.) The nature, consequences and incidents of marriage are governed by law and not subject
to agreement.
➢ Only two persons of different sex may enter into a contract of marriage, and but only
one such contract may exist at the same time.
➢ not just a contract but a social institution.
➢ permanent union between a man and a woman, it may only be dissolved by law (as in
annulment or declaration of nullity) or by death of either party.
➢ not only a civil contract, but a new relation, an institution whose maintenance of
which the public is deeply interested

❖ Best documentary evidence of marriage is a marriage contract. Failure to present it

however does not prove that no marriage took place. Testimony by one of the parties
or one of the witnesses, or the solemnizing officer as eyewitness to the marriage is
held to be admissible as proof of the fact of marriage.
❖ Testimony of witness to the marriage, the partners’ public and open cohabitation as
husband and wife after the alleged wedlock, the birth and baptismal certificate of the
children born during such union, and mention of the nuptial in the subsequent
documents may be presented as proof of such marriage.
❖ The law favors the validity of the marriage.
MARRIAGE VS ORDINARY CONTRACTS
MARRIAGE ORDINARY CONTRACTS
As a contract
A special contract and a social institution Mere contracts (agreement)
Applicable Law
Family Code Civil Code
Right to stipulate
General rule: Governed by the agreements of the parties
Governed by the law and not the
agreements between the husband and wife.

Exception:
Marriage settlements may be agreed upon
by the husband and wife.

Gender requirement
Must be between a man and a woman No gender requirement
Dissolution
Dissolved by the death or annulment of the Parties to the contract can agree to end the
marriage. Husband and wife cannot agree contract
to end the marriage.

B. Requisites of Marriage
Art. 2. No marriage shall be valid, unless these essential requisites
are present:
(1) Legal capacity of the contracting parties who must be a male
and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance
of the contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence
of not less than two witnesses of legal age.
C. Effects of Absence, Defect or Irregularity of the Requisites
1. Effects of Absence of Requisites
The Family Code establishes that the absence of certain requisites has a definitive effect on
the validity of marriage:
• Absence of Essential Requisites:
o Legal Capacity

In the case of legal capacity, it is either present (which makes the marriage valid) or absent
(which makes the marriage void ab initio). (Rabuya p. 221, 2021 Edition)

Three Components of Legal Capacity

1. Age Requirement
-The marrying age is 18 years old and above
2. Sexes of the Parties
-Marriage is a union founded on the distinction of sex. The law likewise provides that the
contracting parties must be a male and a female.
3. Absence of Impediments
-The impediments referred to are those enumerated under Article 37 and 38 of the Family
Code.
• Consent
If consent has not been given by one of the contracting parties, there is no marriage to
speak of. (Rabuya p. 223, 2021 Edition)
Where there is consent but the same is vitiated by reason of fraud, force, intimidation or
undue influence, or either party is of unsound mind, the marriage is not void ab initio but
merely voidable. (Rabuya p. 225, 2021 Edition)
• Absence of Formal Requisites:
o Authority of the Solemnizing Officer
If the person officiating the marriage lacks authority, the marriage is generally
considered void unless one of the parties believed in good faith that the solemnizing officer
had the authority. (Article 35(2), Family Code)

It must be observed that it is not the presence or absence of the solemnizing officer which
constitutes the formal requirement but it is the absence or presence of the authority of such
solemnizing officer. (Sta. Maria p. 147, 2022 Edition)
• Valid Marriage License
The requirement and issuance of a marriage license is the States demonstration of its
involvement and participation in every marriage, in the maintenance of which the general
public interested. (Kho v. Republic, G.R. No. 187462, June 1, 2016)

However, a marriage celebrated 120 days after the issuance of the marriage license is void
ab initio. (Rabuya p. 227, 2021 Edition)
• Marriage Ceremony
• Minimum requirements constituting a Marriage Ceremony (Ronulo v. People, 728
SCRA 675 (2015))
1. There should be the personal appearance of the contracting parties before a solemnizing
officer; and
2. Their declaration in the presence of not less than two witnesses that they take each
other as husband and wife.
2. Defects or Irregularities in Requisites
Certain defects or irregularities may render a marriage voidable rather than void. A voidable
marriage remains valid until annulled. Grounds and effects of such defects include:

• Defect in Legal Capacity:

o In case either or both of the contracting parties, not having been
emancipated by a previous marriage, are between the ages of eighteen and
twenty-one, they shall, in addition to the requirements of the preceding
articles, exhibit to the local civil registrar, the consent to their marriage of
their father, mother, surviving parent or guardian, or persons having legal
charge of them, in the order mentioned. (Article 14, Family Code) Note,
however, that the absence of such parental consent is a ground to annul the
marriage pursuant to Article 45(1) of the Family Code. (Rabuya p. 255, 2021
Edition)
• Defect in Consent:
o Lack of Free Consent
In the absence of parental consent, the law considers the consent given by such party as
defective, thus rendering the marriage voidable. (Art. 4, 2nd par., Family Code; in relation to
Art. 45(1), Family Code)

If the father refuses to give his consent to a contemplated marriage where his consent is
required, the mother cannot do anything. However, if the party concerned is an illegitimate
child, it is the mother who must give her consent to the marriage since illegitimate children
are under the parental authority of their mother. Also, where the father is dead, the
consent of the mother is sufficient. (Rabuya p. 535, 2021 Edition)
Summary Table: Effects of Absence, Defect, or Irregularity of Requisites
([Link]
principles/effects-of-absence-defect-or-irregularity-of-the-requisites)

Issue Effect on Marriage Status of Children

Lack of Legal Capacity Void Illegitimate
Voidable (subject to
Absence of Consent Legitimate if annulled
annulment)
Legitimate if one acted in good
No Authority of Officer Void
faith
Absence of Marriage Legitimate if one acted in good
Void (subject to exceptions)
License faith
No Marriage Ceremony Void Illegitimate

D. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE

ARTICLE 68 – ARTICLE 73

ARTICLE 68: The husband and wife are obliged to live together, observe mutual love, respect and
fidelity, and render mutual help and support.

The marriage relationship creates certain personal rights and duties between husband and
wife.

RIGHTS AND OBLIGATION

• Cohabitation
• A spouse’s obligation to live and cohabit with his or her partner in marriage is a
basic ground rule in the marriage; the mutual rights and obligations of the
spouses is cohabitation or the obligation to live together.
• Sexual Relation
• Right to demand sexual intimacy from other spouse.
• Mutual love, respect and fidelity
• Mutual help and support

ARTICLE 69: The husband and wife shall fix the family domicile. In case of disagreement, the court
shall decide.

The court may exempt one spouse from living with the other if the latter should live
abroad or there are other valid and compelling reasons for the exemption. However, such
exemption shall not apply if the same is not compatible with the solidarity of the family.
FIXING THE FAMILY DOMICILE

• Husband and wife shall jointly fix the family domicile and, in case of
disagreement, neither spouse may impose his or her will upon the other.

NOTE: COURT MAY EXEMPT ONE SPOUSE FROM LIVING WITH THE OTHER IF THE LATTER SHOULD
LIVE ABROAD OR THERE ARE OTHER VALID AND COMPELLING REASONS

ARTICLE 70: The spouse is jointly responsible for support of the family. The expenses for such
support and other conjugal obligations shall be paid from the community property and, in the

absence thereof, from the income or fruits of their separate properties. In case of insufficiency or
absence of said income or fruits, such obligations shall be satisfied from the separate properties.

ARTICLE 71: The management of the household shall be right and the duty of both spouses. The
expenses for such management shall be paid in accordance with the provisions of Article 70.

FAMILY EXPENSES AND MANAGEMENT OF THE HOUSEHOLD

• Family Expenses
Expenses of the family are chargeable to the ff:
a) Community or Conjugal partnership property
b) Income or fruits of the separate properties of the spouses
c) Separate properties of the spouses
• Management of the Household
- Family code provides that the management of the household is the right
and duty of BOTH the husband and the wife.

ARTICLE 72: When one of the spouses neglects his or her duties to the conjugal union or commits
acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved
party may apply to the court relief.

RELIEF AVAILABLE TO SPOUSES

• WHEN SPOUSE LEAVES CONJUGAL DWELLING

- If one spouse left the conjugal dwelling without intention of returning,
the aggrieved spouse may petition the court for receivership, for judicial
separation of property or for authority to be sole administrator of the
absolute community.
• WHEN SPOUSE COMMITS ACTS OF SEXUAL INFIDELITY
- One spouse commits acts of sexual infidelity, the aggrieved spouse may
petition the court for legal separation.
- Philandering husband (man who has many casual sexual relationships
or affairs, especially while married or in a committed relationship)
squanders the properties of the conjugal partnership, the aggrieved
spouse may petition the court for injunction to stop further disposition
 • WHEN SPOUSE SELLS THE CONJUGAL OR COMMUNITY PROPERTY WITHOUT THE OTHER’S
CONSENT
- One spouse commit fraud upon their the other in administration of
the conjugal or community property, the aggrieved spouse may seek
injunction to stop further disposition.
• WHEN HUSBAND COMMITS VIOLATION OF R.A NO. 9262
- Husband commits any act or series against the wife, their common
children, or against the wife’s other children that results in physical,
sexual. Psychological harm or suffering, economic abuse, THE WIFE
MAY OBTAIN PROTECTION ORDERS either from the barangay or
from the courts of the purpose of preventing further acts of violence
against her children.

ARTICLE 73: RITHER SPOUSE MAY EXERCISE ANY LEGITIMATE PROFESSION, OCCUPATION,
BUSINESS OR ACTIVITY WITHOUT THE CONSENT OF THE OTHER. THE LATTER MAY OBJECT ONLY
ON VALID, SERIOUS AND MORAL GROUNDS.

IN CASE OF DISAGREEMENT, THE COURT SHALL DECIDE WHETHER OR NOT:

1. THE OBJECTION IS PROPER, AND

2. BENEFIT HAS ACCRUED TO THE FAMILY PRIOR TO THE OBJECTION OR THEREAFTER. IF THE
BENEFIT ACCRUED PRIOR TO THE OBJECTION, THE RESULTING OBLIGATION SHALL BE
ENFORCED AGAINST THE SEPARATE PROPERTY OF THE SPOUSE WHO HAS NOT OBTAINED
CONSENT.

THE FOREGOING PROVISIONS SHALL NOT PREJUDICE THE RIGHTS OF CREDITORS WHO ACTED IN
GOOD FAITH.

EXERCISE OF PROFESSION, BUSINESS OR ACTIVITY

- Either of the spouse may exercise legitimate profession, occupation,

business or activity without the consent of the other.

NOTE: When one of the spouse objects to the profession, occupation, business or activity of the
other spouse and such objection is found to be proper by the courts, spouse who did not obtain
consent shall be responsible with his or her own separate property.

Prepared by:
Bunagan, Jovily Kate

Bunggay, Apryl Joy

Cabalza-Cuntapay, Jessica

Cabantog, Remshell