As of writing, the Philippines and the Vatican are the only two countries which have no divorce law. While there are initiatives to lobby for the enactment of a divorce law, these have not been successful. But whether the Philippines should join the rest of the world in adapting a divorce law is still a much contested topic and should be a subject of another post.
Read more here: http://newsinfo.inquirer.net/326647/in-the-know-only-the-vatican-and-the-philippines
This article will discuss the current laws governing the marriages of Filipinos and former Filipinos.
First, let us define what marriage means under the Philippine law. The Family Code provides:
"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 the marriage settlements may fix the property relations during the marriage within the limits provided by this Code."
From the provision of the law, marriage in the Philippines can be characterized as a special contract of permanent union. This is the reason why there is divorce is not recognized in this jurisdiction. It is also a union between a man and a woman only and thus in this jurisdiction, gay and lesbian marriages are not recognized as well. Marriage is entered into according to law and not merely subject to stipulations of the party. Marriage has for its purpose, the establishment of conjugal and family life.
Under the Philippine law, the following are the essential requisites of a valid marriage:
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.
The following are the formal requisites of a valid marriage:
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.
In case of absence or defects, the effects shall be as follows:
a. In case of absence of any essential or formal requisites, marriage shall be considered void ab initio except that if the marriage is solemnized by an unauthorized person, the marriage will still be valid if either or both contracting parties believed in good faith that the solemnizing officer had legal authority (Art 35(2) of the Family Code).
b. In case of defect in the essential requisites renders the marriage voidable.
c. In case of irregularity in the formal requisites, the marriage will still valid but party responsible for such irregularity shall be civilly, criminally and administratively liable.
Not all marriages however work out well. When marriages suffer from causes existing at the time of the celebration of marriage or during its existence, spouses have remedy under the law. In the legal perspective, marriage may be void ab initio (marriage is inexistent from the time of performance) or voidable (marriage is valid until annulled).
Under the law, there are at least two remedies by which spouses can avail to terminate a marriage. These are 1) declaration of nullity of marriage and 2) annulment of marriage. Declaration of nullity of marriage is an available remedy in void marriages. This action does not prescribe. The following are void marriages under the law:
1. Contracted by any party below 18 years old.
2. Solemnizing officer has no authority (except: either or both parties believed in good faith that the officer had authority).
3. Solemnized without license (except: when marriage license is not required).
4. Bigamous or polygamous marriages (with certain exceptions).
5. Mistake in identity.
6. Psychological incapacity.Annulment of marriage, on the other hand is available remedy for voidable marriages to be terminated. The grounds for annulment of marriage are as follows:
1. Lack of parental consent.
2. Insanity of one of the parties.
3. Fraud
- non-disclosure of conviction by final judgment of crime involving moral turpitude
- concealment of pregnancy by another man
- concealment of sexually transmissible disease, regardless of nature, existing at the time of the marriage
- concealment of drug addiction, habitual alcoholism, homosexuality and lesbianism
4. Impotency
5. Affliction of sexually transmissible disease found to be serious and which appears incurable.
It may be simple to read but in reality marriage is a complicated topic. There are cases of Filipinos being married and then later on acquiring different citizenship by naturalization and getting divorced. What law should apply? Is the divorce valid? What is the status of the children if any? These are only some of the possible questions. However, it may be useful for anyone (Filipino) to remember that Article 15 of the Civil Code provides that '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.'
