Facts:
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 other. I 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 Code, it 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.
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