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Wednesday, December 31, 2014

MARRIAGE MATTER: Recording and Validity.


B, widow, was married by a Solemnizing Officer to S, a woman who was previously married to U but had been separated for many years.  S and U were married prior to 1988 and they have been separated for much longer than seven (7) years.  The wedding was performed in June 2012 but apparently the Solemnizing Officer was told it could not be recorded and was not legal because S, had been married before with no annulment. 

Issues: (1) Should the marriage be recorded? 
           (2) What are the Requirements for Late Registration of Marriage?
           (3) Is the Marriage between B & S valid, considering that S was still married to U who abandoned her for more than seven (7) years?

Legal Advice:

(1) The marriage performed should be recorded. It shall be the duty of the solemnizing officer to report the marriage to the office of the Civil Registrar where the marriage was solemnized and the period of filing for registration depends on whether the Parties to the marriage has a marriage license or not. If with marriage license or ordinary marriage, the filing must be within fifteen, (15) days following the solemnization of marriage while in marriage exempt from license requirement, the prescribed period is thirty (30) days.

(2) Requirements for Late Registration of Marriage. In case the filing period had already lapsed and assuming that the original or duplicate copy of the Certificate of Marriage still exists, please comply with the following requirements:

1.  The solemnizing officer shall be required to execute and file an affidavit in support thereof, stating the exact place and date of marriage, the facts and circumstances surrounding the marriage and the reason or cause of delay.

2.  The submission of the application for marriage license bearing the date when the marriage license was issued, except for marriage exempt from marriage licenses shall be required.

The Facts did not indicate if the parties to the marriage have a license or not. But I presumed from that the Solemnizing Officer has performed the marriage without a marriage license under Article 34 of the Family Code - In case of a man and woman who have lived together as husband and wife for at least five (5) years and without any legal impediment to marry each otherI believe that the person who told the Solemnizing Officer not to record the marriage for not being “legal” has knowledge of a legal impediment to the marriage [i.e. the existence of the first marriage of S & U, which has not been judicially declared null, annulled or U had not been declared presumptively dead as required under the Family Code of the Philippines, the governing law for marriages since August 3, 1988 until the present].  
(3) Despite the alleged legal impediments, the marriage already performed should be recorded and should be deemed “valid” until it is annulled. The act of recording a marriage under the Civil Registration Law of the Philippines is ministerial and there is no discretion involved. In fact even if the legal impediment is made known or brought to the attention of the local civil registrar [during the application for marriage license under Art. 18  of the Family Code, the local civil registrar shall nonetheless issue the said license, unless ordered otherwise by a competent court] . Further, a recorded marriage is deemed “valid” and enjoys a presumption of “validity” and “regularity” of official functions. Thus, the alleged “void marriage” can only be declared terminated upon a petition to declare such marriage void filed by either the husband or the wife.   

The second marriage is deemed “valid” since U appeared to have become an Absentee Spouse that allowed “S” to remarry. Since the marriage between S & U was entered into prior to August 3, 1988, its validity is governed by the provisions of the Civil Code of the Philippines [and not by the Family Code of the Philippines] as regards the declaration of absentee spouse, to wit:

 “Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, of if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.”

 Article 390 of the Civil Code states:
“Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.” 

Please note that under Art. 83 of the Civil Codeit is not necessary to have the former spouse judicially declared an absentee for the purpose of remarriage. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven (7) consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.

Under the Civil Code, the presumption of death is established by law and no court declaration is needed for the presumption to arise as death is presumed to have taken place by the seventh year of absence.

This is a gray area of the law, however, and either of the spouses later on (if they so desire) can still file a petition to declare their marriage void for being a “bigamous” marriage.