Republic of the Philippines

HOUSE OF REPRESENTATIVES
Quezon City, Metro Manila

Introauced by HON. RENE LOPEZ RELAMPAGOS
1* District, Bohol

EXPLANATORY NOTE

This bli seeks to amend Article 26 of Executive Order No. 209 or The Fam ly Code of
the Philippines which was signed into law by President Corazon C. Aquino on July 6, 1987. The
said Code took effect on August 3, 1988.

New values, ideas and jraradigms have made their way in the lives of the Filipine people
and also in our laws and jurisprudence since the enactment of the Family Code in 1987
particularly, ar-ong others, on issues about marriage.

these proposed legislative amend’neuts, as enumerated hereunder, which ave
codification based on jurisprudence, will add to, expand or clarify the various exceptions
enumerated in the first paragrapa of Article 26, namely: (a) Article 35(1) - void marrisee
contracted by any party below 18 years of age even with the consent of parents or guardians: (b)
common-law marriages obtained abroad by Filipinos; (c) same sex marriage of Vilipinos «vad;
(d) marriage by way of jest when there is absoiutely no genuine consent on th part of both
contracting parties; aid (e) marriage by proxy.

(a) Ari.cle 35(1) ~ void marriage covtracted by any party below 18 years of aye even
with the consent of parents or guardians - If one is a Filipino and another an alien whose
national laws capacitate persons below 18 years of age (for instance, 16 years of ag:) to marry,
the Family Code docs not seem (0 give a precis» solution to this situation. It must be 2oinied
out that Article 35(1), which is made an excepuon to the comity provision, provides that a
marriage is void ab initio if “coutracted by any pany below eighteen years of age.” ‘Thi law is
addressed “to auy party.” It does not distinguish wh:ther one of the parties is a Philippine citizen
ora foreigner. ‘ence, the taw can be construed as a blanket exception that should appl ‘ikewise
to a situation where the foreign spouse is below i8 years of age. The oaly problem’ with this
construction is that it will lead to an absurdity if Article 26 and the exception unter Artivie
35(1) are relate to other crovisicns of the Family Code, specifically Article 21. It snould 2
remembered that under Article 21, a foreigner can get married in ihe Philippines even if ne
below 18 years of age if he obtains a certificate of legal capaciyy from his diplomatic nisssie:
the Philippines stating that, in his country, persons even under }8 years of age cai: nary. Upon
showing of this certificate, he can be given by the local civil registar a valid mactiage license
which will allow him te be able to marry a Filipino in the Philippines. ‘The absurdity Hes in the
circumstance tit witile such a marriage may be considered valid here, it will not be 3) if it were
celebrated in 122 country of the foreigner. This should not be the case. With respect to legal
capacity, our country follows the national’cy rule and, hence, should accord respect © the laws
of the country in so far as the ‘egal capacity to macry of the foreigner is concerned. Hence, the
besier rule is that the exception under Articl 26 referring to Article 35(1} should be
construed as veferring to a sitvaiion where th: marriage abroad is betv'een  Filiisc and a
Filipina aad not between a Fitipino or fad an alien married in the al/ca’s state

in



1), though below 18 years of age, is capacitated to marry. (Melecic
p. 164-155)

where he or she (the al
S. Sta. Maria, Jr., Persons and Family Relations Law [Fifth Edition, 201

(b) Common-iaw marriages obtzined by Filipinos abroad - Article 26 of the Family
Code apparently docs not specifically include common-law marriages contracted by Filipinos
abroad as one of the exceptions to the general rule that marriages sciemnized abroad is generally
valid here in the Philippines iz valid where they were solemnized

Howeves, common-law marriages obteined by Filipisos abroad should NOT be
recognized here. Article 26 clearly uses the word “solemnized” and NOT “contracted” or
“performed.” “Solemnization,” as used in marriege statutes, has a very technical and limited
meaning. It means the performance of the formai act or ceremony by which a man and a woman
ntract marriage and assume the status of hus>ard and wife (Ballantine Law Dictionary, 3"
edition).

~A marriage is solemnized shen. in #< presence of a judicial
officer, sriest or minister, the parties declare chat they take each other
as husband and wife; and the officer or minister who witnesses the
ceremony is said to “solemnize” the marriage (Sharon v. Sharon,
7aS Cal, 1, 16 P348).”

It is a rule in statutory construction that words and phrases having a special and
technical meaning are to be considered as havirg been used in their technical sense (Site v.
Bolsinger, 21 NW 2d. page 480 as cited in Statutory Construction by Martin, 6" edition, page
85). Also, techaicai words ond phrases which have acquired a peculiar and appropriate meaning
Jaw are presumed co have been used by the legislature according to their legal meaning (City
of St. Louis v, Tviangle Fuel Co., 193 SW 2d 914 as cited in Statutory Construction 9y Martin),
Hence, if words used ina statute have a meaning wkich those who are or should be learned. in the
law are supposed to understand, the courts must accept such construction (St. Charles id. &
Loans Association y. Hamil, 319 Pa. 1220)

Solemuization reters 19 o: implies a cerenonial marriage aid not one which was
“contracted” or merely performed by way of a mer: agreement of the parties, such as 1 cases 07
common-law marriage. Indeed, the formality, namely, the solemnization, inherent in a
ceremonial ma-tiage is whet primarily distinguishes it from a common law marriage (Pratt ¥
Pratt, 157 Mass. 503. 747).

Moreover, the terms “solemnized” and “contracted” are not entirely the same ‘The
term solemnizetion has a narrower meaning, as stated previously. On the other hand, thy term
“contracted” is broader and may include as one of its modes the process of solemnization. This
distinction has a practical and ever iegai significance. In fact, in marriage statuses in other
jurisdiction having sisuiarly worded comity prov:sions, it has been held that if the term used by
the statute is *solemnized,” the law precludes local recognition of common law marriages,
which did not undergo the process of solemnization, contracted. The Supreme Court of Utah
had occasion to interpret a similarly worded coniity provision in the Re Veta’s case, 110 Utah,
187, 170 P2d 183 (See also Beddow y. Becdow, 287 S.W 2d. 45 (Ky. 1952})

XXX XXX wo XXX

The jurisprudence laid down in the aforequoted case may well be applicable here in the
Philippines. ‘The legislative history of the provision supports this view. The very first time a
validation or comity provision existed in Philippine law history was when the United States
introduced the same via Section 5 of General Order No. 68, which provides that:

“All marriages contracted without these Islands which would be
valid by the laws of the country in which the same were contracted, are
valid in these Islands.”


The above provision clearly uses the word “contracted” rather than “performed” or
“solemnized.” Thereaiter, Section !9 of Act 3613, as amended, otherwise known as the
Philippine Marriage Law of 1929, provided this comity-validation provision, to wit

“Scetion 9. All marriages performed outside of the
Philippine Isiands in accordance with the {z.ws in force in the
country where they were performed and valid there as such,
shall also be valid in the Islands.”

The word “contracted” in General Order No. 68 was changed to “per‘ormed.”
Subsequently, the above provision was incorporated in the Philippine Civil Code of 1950 with
substantial exceptions, Section 7! of the same provided that:

“Section 71. All marriages performed outside of the Philippines
in accordance with the laws in force in the country where they were
performed, and valid there as such, shall also be valid in this country,
except bigamous, polygamous, or incestuous marriages as determined
by Philippine law.”

Finally, this validation provision was again re-enacted in the Family Code as the first
paragraph of Article 26, with substa | modifications and amendments. The term
“performed” under the Civil Code was changed to “solemnized” and the exceptions were
amended to read, thus: “except those prohibited under Articles 35(1), (4, (5) and (6), 36, 37 and

8.” This change in the wording from “performed” to “solemnized” is very significant. The
change appesrs to signify the intent of the frames to limit the scope of the provision so as
not to include common-law marriages. Moreover, the non-recognition of con:mon-law
marriage appears to be consistent with the jurisprudence laid down ia Enriquez v. Luriqucz
(8 Phil. 56S) stating that the Philippines, even during the Spasish ruiz, has never recognized
common-law marti

The second paragraph of Article 26 also uses the term “celebrated.” Azain, (his
connotes a ceremonial marriage where solemnization is iniverently involved. ‘This iv clearly
consistent with the (erm *solemnized” used in the main validation provision, which is the
first paragraph of Article 26,

(c) Same sex marriage of Filipinos abroad - in the Philippines
mandates that only a man and a woman can marry ea ‘This clear public policy
consideration is enunciated in Article 1 of the Family Code, stating that marriage is a special
contract of permanent union between a inan anid a woman. Article (1) also. states tha: the
contracting varties must be a male and a fersale. In fact, the Family Code is replete with terms
and articles c!zarly indicating that marriage iv a eterosexual relatioaship. It is 92sed on the
distinction be!ween a man and woman. Hence, words like “husband and wife,” “father and
mother” and “man and voman” are used. Seme sex marriage, therefore, is not allowed in Ce
Philippines. If a Fikpino contracts » marriage abroad with a person of the same vex,
whether such persea is another Filipino or a foreigner, such 2 marriage si

recognized here. Articie 15 of the Civil Code provides tiat “laws relating to family rights and
duties, or (0 status, condition and legal capacity of persons are binding upon c'sizes of the

Philippines, even though living abroad.” in the Philippines, a person has teg y 0
marry only a person of the opposite sex. As stated previousiy, this public policy consideration
can be cleariy seen us one of the objects or bases of the Family Code. Hence, this limitation will
follow the Fi"/pins anywhere in the world. Moreover, the third paragraph of Articie 17 of the
Civil Code provides that “prohibitive lass concerning persons, their acts or property, and those
which have for their object public order, public policy and good customs shall not be rendered
ineffective by laws or judg.vents promulgated, or by determinations or conventions agreed upon

a foreign county.” The Family Code arandees that only a maie and female can marry cach
other. ‘I therefore, a public poli viich cannot be rendered ineffective by any



foreign law. (Melencio S. Sta. Maria, Jr., Perscns and Family Relations Law [Fifth Edition,

2010] pp. 164 — 167; 169— 171)

(d) Marriage by way of a jest when there is absolutely no genuine consent on the
part of both contracting parties - In McClurg v. Terry, 21 N.J. Eq. 225, the Court of
Chancery of New Jersey had occasion to rule on’a marriage by jest as null and void. ‘The case
is as follows:

‘THE CHANCELLOR. The complaint seeks to have the ceremony
of marriage between herself and the defendant, in November 1869, declared
to be a nullity. The ground on which she asks this decree is that, although
the ceremony was actually performed, and by a justice of the peace of the
county, it was only in jest, not intended to be a contract of marriage, and
that it was so understood at the time by both parties, and the other persons
present; and that both parties have never since so considered and treated
it, and have never lived together, or acted towards each other as man and
wife. The bill and answer both state these as facts of the case, and that
neither party intended it as a marriage, or was willing to take the other
as husband and wife. These statements are corroborated by the witnesses
present. The complainant is an infant of nineteen years, who had returned
late in te evening to Jersey City, from an es:-ursion with the defendant
and a number of young friends, among whom was a justice of the peace.

Alll being in good spirits and excited by the excursion, she in jest challenged
the defendant to be married to her on the spot. He in the same spirit
accepted the challenge, and the justice, at their request, performed the
ceremony with them making the proper responses. The ceremony was in
the usual and proper form, the justice doubting whether it was in earnest

in jest. The defendant escorted the complainant to her home, and left

her there as usual on occasions of such excursions; both acted and treated
the matter as if no ceremony had taken place. After some time, the

Fthe complainant having heard of the ceremony, and that it had
ally and properly performed before the proper magistrate, raised
the question and entertained doubts whether it was not a legal marriage; and
the justice mediated and returning a certificate of the marriage to be
recorded berore the proper officer. The bill seeks to have the marriage
declared a nullity, and to restrained the justice from certifying it for record.

Mere words, without any intention corresponding to them, will not

make a marriage or any other civil contract, But the words are the evidence

of such intention, and if once exchanged, it must be clearly shown that

both parties iuitended and understood that they were not to have effect.

In this case, the evidence is clear that no marriage was intended by cither party;
that it was a mere jest got up in the exuberance of spirits to amuse the

company and themselves. If this is so, there was no marriage. x x x

(Melecio S. Sta. Maria, Jr., Persons and Family Relations Law, supra. p. 129-130)

(c) Marriage by proxy - Marriege by proxy solemnized here in the Philippines is
likewise void because of the absence of the essential requisite that consent freely given must
be made in the presence of the solemnizing officer and the absence of the formal requisite that
the contracting parties must personally declare bz ore the solemnizing officer that they take each
other as husband and wife. (Melecio S. Sta. Maria, !r., Persons and Family Relations Law, supra
p. 130)

The second paragraph of Article 26 of the Family Code provides the recogni ion in the
Philippines of a particular absoluie divorce obtained in another country which will allow the
divorced Filipino to remarry. Hence, where a valid marriage is cclebrated, cither in the
Philippines or abroad, between a Filipino citizen and a foreigner and, subsequently, the



foreigner spouse obtains a valid divorce abroad capacitating him or her to remarry, the Filipino
spouse shall likewise have capacity to remarry under Philippine law. The second paragraph of
said Article is a codification of the jurisprudence laid down in the 1985 case of Van Dorn v.
Romillo (supra, see San Luis vs. San Luis, G.R. No. 133743, February 6, 2007). (Melecio 8. Sta.
Maria, Jr., Persons and Family Relations Law, supra. p. 174)

‘The proposed amendments to the second paragraph of the same Article 26 (which is
also Executive Order No. 227, July 17, 1987) will apply to a situation where originally, at the
time of the marriage ceremony, both parties were Filipinos, but at the time of the absolute
divorce, one of the said parties was already a citizn of a foreign country that allows absolute
divorce. It will be a lamentable and disadvantageous position for the Filipino spouse who did
not procure divorce if he or she will not also have capacity to remarry under Philippine law after
being divorced by his spouse who is already a citizen of a foreign country that alluws absolute
divorce. ‘Thus, the proposed amendment to the said second paragraph of Article 26 will provide
a remedy to the Filipino spouse to move on with his or her life without fear of being accused of a
criminal offense in case he or she will have sexual relationship with other person after the said
divorce.

Some commentators (with the exception of other schools of thought) of the Family Code
- with the full concurrence of this representation - doubt whether the present second paragraph
of Article 26 of the Code as now worded will alse apply to a situation where at the time of the
marriage ceremony, both parties were Filipinos, but one of them subsequently obtains an
absolute divorce abroad afier he or she has been naturalized as a citizen of a foreign country
Where absolute divorce is recognized, ‘This is so because the present second paragraph of Article
26 clearly speaks of a specific situation of a “marriage between a Filipino citiz:
foreigner” aud does NOT coyer a situation where a “marriage is between Ovo
and one of them obtains an absolute divorce abroad after he or she has been natucaliz
a citizen of a foreign country where absolute divorce is recognized. In fact, che Supreme
Court in the case of Republic vs. Orbecido III (472 SCRA 114 [October, 2005}) spelled out
as one of the twin elements for the applicability of the second paragraph of Articie 26 that
“there ix a valid marriage that has been celebrated between a Filipino citizen and a
foreigner.” Therefore, there is a need to remove all doubts whether a “valid marriage has been
celebrated between Filipinos” is also covered by the present second paragraph of Article 26 by
clarifying it through this proposed amendment. Moreover, in order to relieve the Filipino
spouse who did not procure a divorce from an obvious disadvantageous and unfair position, the
present second! paragraph of Article 26 of the Family Code should be amended io apply to a
situation where if the marriage is between two Filipinos and later one of them obtain:s an absolute
divorce abroad after he has been naturalized as @ citizen of a foreign country where absolute
divorce is recognized, the Filipino spouse who did not procure a divorce shail also be granted
capacity to remarry under Philippine law.

In the light of the foregoing, approval cf this bill is earnestly sought.

iS

RENE L. ifreLampacos


Republic of the Philippines
HOUSE OF REPRESENTATIVES:
Quezon City, Metro Manila

Fifteenth Congress
First Regular Session

,
HOUSE BILL NO. 4269

Introduced by HON. RENE LOPEZ RELAMPAGOS
1" District, Boho!

AN ACT
ARTICLE 26 OF EXECUTIVE ORDER 209 OR THE FAMILY
OF THE PHILIPPINES AND FOR OTHER PURPOS!

AMENDING
CODE

SECTION 1. Article 26 is hereby amended to read as follows:

All marriages solemnized outside he Philippines, in accordance with the laws in
force in the country where they were solemnized, and valid ther ch, shall also be
valid in the country, except those prohibited under Articles 35(1), (4), (5), (6), and 36, 37
and 38

IN ADD!
CONSIDERED E

ION, THE FOLLOWING MARRIAGES SHALL BE
IONS TO THIS ARTICLE:

(1) COMMON. OBTAINED OR CONTRACTED BY

FILIPINOS ABROAI

.AW MARRIAG

(2) SAME SEX MARRIAGES OF FILIPINOS ABROAD;

(3) MARRIAGES BY WAY OF A JEST NOT INTENDED TO BE A
RACT OF MARRIAGE. HOWEVER, IT MUST BE CLEARLY SHOWN
BY WAY OF A FINAL AND EXECUTORY DECISION OF THE COURT OF
COMPETENT JURISDICTION THAT DECIDED THE CASE FILED BY
JER PARTY DECLARID THEIR MARRIAGE A NULLITY
CONSIDERING THAT BOTH PARTIES FULLY UNDERSTOOD THAT THEIR

ANGE OF MARITAL VOWS WERE PURELY IN JEST AND NOT TO
HER

(4) MARRIAGES BY PROXY.

THE EXCEPTION REFERRED TO IN ARTICLE 35(1) SHALL BE
CONSTRUED TO REFER ONLY TO A SITUATION WHERE THE MARRIAGE
SOLEMNIZED ABROAD IS BETWEEN FILIPINO CITIZENS AND NOT
BETWEEN A FILIPINO CITIZEN AND A FOREIGNER MARRJED IN THE
FOREIGNER’S STATE WHERE THE LATTER, THOUGH BELOW EIGHTEEN
(18) YEARS OF AGE, IS CAPACITATED TO MARRY.

Where a marriage between a Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtainec abroad by the alien spouse capacitating him or



her to cemarry, the Filipino spouse shall likewise have capacity to remarry under
Philippine law

IT iS UNDERSTOOD THAT !F THE MARRIAGE IS BETW
FILIPINOS AND ONE OF THEM THEREAFTER OBTAINS AN AGSOLU
DIVORCE AFTER HE OR SHE HAS BREN NATURALIZED AS A CITIZE!
RY WHERE A?SOLUTE DIVORCE IS RECOGNI
= DIVORCE

PHILIPPINE LAW, CONSEQUENTLY, THE NATURALIZED SPOU
CITIZEN OF A FOREIGN COUNSRY WHERE ABSOLUTE DIVORC
RECOGNIZED SHALL HAVE NC CLAIM OR INTEREST IN THE PROPERTY
ACQUIRED BY THE FILIPINO SPOUSE AFTER THE DIVORCE. HE OR SH
SHALL BE CONSIDE! A DIVORCED PERSON AND THEREFORE SHAL
NOT HAVE ANY LEGAL STANDING TO FILE ANY CRIMINAL CAS!
AGAINST THE FILIPINO SPOUSE IN CASE THE LATTER COHABITS OR
HAS SEXUAL KNOWLEDGE WITH ANOTHER PERSON AFTEK THE SAID
DIVORCE AND ALSO, IN PROCEEDI FOR CUSTODY OF THE
CHILDREN BORN, IF ANY, DURING THE EXISTENCE OF THE PREVIOUS
MARRIAGE WITH HIS OR HER FILIPINO SPOUSE.

iT
PHILS PPE
DIVORCE D

NATURALIZED SPOUSE URN YO T
AND REACQUIRE* PHILIPPINE (NSHIP, TE
REE THAT HE OR SHE OBTAINED IN A VOREIG

MAY VALIDLY REMARRY TE EIN: PROVIDED, HOWEVER, THAT TE
FORKIGN MARITAL LAW THAT VALIDLY GRANTED THE DIVORCE TO
NATURALIZED SPOUSE AS WELL AS THE FOREIGN DIVORCE
ISSUED IN ACCORDANCE WITH THE SAID FORI NM MARITAL
LAW DULY AUTHENTICATED BY THE FOREIGN COURT ISSUING SAID
SCREE MUST BE PROVEN AS A FACT AND CANNOT BE TAK‘
JUDICIAL NOTICE OF,

SEC. 2. Repealing clause
regulations inconsistent with the pro’
amended accordingly

All laws, decrees, executive orders, rules and
ons of this Act, is hereby repealed, modified or

SEC. 3. Separability clause. - If for any reason, any
ct is held to be unconstitutional or invalid, the other sections or provisions hereof s

not be effected and thereby remain to be in force and effect.

ection or provision of this
ll

SEC. 4. Effectivity clause. — This Act shall take effect fifteen (15) days afics its
complete publication in at least two (2) national newspapers of general circulation.

Approved,