The Concept of ‘Formal Requisites’ of Marriage

🔍

↵

SUBJECT: The Concept of ‘Formal Requisites’ of Marriage

I. Introduction

This memorandum exhaustively examines the concept of the formal requisites of marriage under Philippine civil law. The formal requisites are the external, procedural conditions prescribed by law for the valid solemnization of a marriage, as distinct from the essential requisites which pertain to the very essence of the marital bond (e.g., legal capacity and consent). The analysis is grounded primarily in the Family Code of the Philippines (Executive Order No. 209, as amended), relevant jurisprudence from the Supreme Court, and applicable procedural rules. Understanding these formal requisites is critical, as their absence generally renders the marriage void ab initio, meaning it is considered null and void from the very beginning.

II. Legal Foundation and Governing Law

The primary legal foundation is found in Title I, Chapter 2 of the Family Code, specifically Articles 3 to 34. Article 3 explicitly distinguishes between essential and formal requisites. The formal requisites are enumerated in Article 4, which states: “The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2).” The provisions on formal requisites supersede those in the Civil Code of the Philippines (Republic Act No. 386) for marriages celebrated after August 3, 1988. Jurisprudence, particularly Niñal v. Bayadog (G.R. No. 133778, March 14, 2000) and Republic v. Court of Appeals and Molina (G.R. No. 108763, February 13, 1997), provides authoritative interpretation of these provisions.

III. Enumeration of Formal Requisites

Pursuant to Article 4 in relation to Articles 5 to 17 of the Family Code, the formal requisites of marriage are:

A valid marriage license, except in cases provided for in Chapter 2 of the Family Code.

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.

The authority of the solemnizing officer, who must be either: (a) incumbent members of the judiciary; (b) priests, rabbis, imams, or ministers of any church or religious sect duly authorized by their church or religious sect and registered with the civil registrar general; (c) ship captains or airplane chiefs in certain articulable instances; (d) military commanders of a unit in certain articulable instances; or (e) any consul general, consul, or vice-consul in the foreign service of the Philippines in a foreign country, for marriages between Filipino citizens.

IV. The Marriage License: A Critical Requisite

The marriage license is a document issued by the local civil registrar of the city or municipality where either contracting party habitually resides, authorizing the parties to marry. It is a formal manifestation that the parties have complied with the preliminary requirements (e.g., publication or parental advice for those between 18 and 21). Its purpose is to prevent irregular and illicit unions. Article 13 of the Family Code mandates its issuance ten days after application, provided no legal impediment is found. The license is valid for 120 days from date of issuance. The absence of a marriage license is a juridical defect that renders the marriage void ab initio, unless it falls under the exemptions listed in Articles 27 to 34 (e.g., marriage in articulo mortis, marriage between cohabiting parties for at least five years, etc.). The case of Ceniza v. Court of Appeals (G.R. No. 106496, August 20, 1996) underscores the mandatory nature of the license.

V. The Marriage Ceremony and Solemnization

The marriage ceremony is the formal act by which the parties mutually assume the marital status. Article 6 of the Family Code requires the personal appearance of the contracting parties and their personal declaration before the solemnizing officer and the witnesses. This personal declaration is the core of the ceremony. The law does not prescribe a specific formula, but the declaration must be made in a language or dialect understood by the parties. The ceremony must be public in character, hence the requirement of at least two witnesses of legal age. The solemnizing officer must personally administer the declaration, and his or her authority must be present at the time of the ceremony. A marriage contracted by telephone, correspondence, or by proxy is generally void, except for marriages under Article 27 (marriages in articulo mortis) where the party at the point of death can express the declaration through a commissioned special agent.

VI. Authority of the Solemnizing Officer

The authority of the solemnizing officer is a jurisdictional requirement. Article 7 of the Family Code provides an exclusive list of persons authorized to solemnize marriages. Any marriage solemnized by a person not legally authorized under this article, unless such person believed in good faith that he or she had legal authority, is void. For religious solemnizers, the law imposes a dual requirement: (1) they must be duly ordained or consecrated according to their religious tradition, and (2) they must be registered with the civil registrar general and their authorization must not have been revoked. The case of Navarro v. Domagtoy (A.M. No. MTJ-96-1088, July 19, 1996) is instructive, where a judge was disciplined for solemnizing a marriage outside his territorial jurisdiction, thereby acting without authority.

VII. Comparative Analysis: Formal Requisites Under the Civil Code vs. The Family Code

The following table compares the key aspects of formal requisites under the repealed provisions of the Civil Code and the current Family Code.

Requisite	Civil Code of the Philippines (Pre-August 3, 1988)	Family Code of the Philippines (Post-August 3, 1988)
Governing Articles	Articles 52 to 78	Articles 3 to 34
Marriage License Validity	120 days from date of issuance (same).	120 days from date of issuance (Article 20).
Exemptions from License	More limited, primarily marriage in articulo mortis.	Expanded to include, among others, marriages of cohabiting parties for at least 5 years (Article 34), and marriages between Muslims or among members of ethnic communities (Article 33).
Solemnizing Officers	Judges, priests, ministers, rabbis, ship captains, military commanders, and consuls. Authority for religious solemnizers was less specifically regulated.	List is more detailed and exclusive (Article 7). Adds “incumbent members of the judiciary” for clarity. Imposes a mandatory registration requirement for all authorized religious solemnizers with the civil registrar general.
Ceremony & Declaration	Required a marriage ceremony and a declaration by the parties.	More explicit: requires personal appearance and personal declaration before the solemnizing officer and witnesses (Article 6). Emphasizes the public character of the act.
Void Marriages due to Formal Defects	A marriage without a marriage license or solemnized by an unauthorized person was generally considered void. Jurisprudence was sometimes inconsistent.	Explicitly states in Article 4 that absence of any formal requisite renders the marriage void ab initio, with a specific exception for marriages under Article 35(2) (where a party believed in good faith the solemnizing officer had authority). Provides greater certainty.
Ratification	Provided for ratification of irregular marriages by cohabitation.	Eliminated the concept of ratification by cohabitation. A void marriage remains void; however, a voidable marriage can be confirmed (Article 45).

VIII. Legal Consequences of Absence of Formal Requisites

As a rule, the absence of any one of the formal requisites renders the marriage void ab initio (Article 4). A void marriage is deemed to have never existed and produces no legal effects, except those declared by law concerning children, property under Article 147 or 148, and issues of good faith and property relations. The declaration of nullity is merely declaratory. The exception under Article 35(2) states that a marriage solemnized without a license or by an unauthorized officer shall not be void if either or both parties believed in good faith that the solemnizing officer had the legal authority to act. This is the doctrine of putative marriage. The burden of proving the good faith belief rests upon the party invoking it.

IX. Procedural Aspects and Proof

A petition for declaration of absolute nullity of marriage based on the absence of a formal requisite is governed by the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-10-SC). The solicitor general or public prosecutor must intervene to ensure no collusion exists. The civil registrar who issued the license and the solemnizing officer may be impleaded. The marriage contract is the primary documentary evidence, but its existence does not preclude a finding of nullity if it can be proven that a formal requisite was lacking (e.g., the license was spurious, or the officer was not authorized). Parol evidence is admissible to prove such defects.

X. Conclusion

The formal requisites of marriage under the Family Code—a valid marriage license (subject to exemptions), a proper marriage ceremony with personal declaration, and a qualified solemnizing officer—are mandatory and jurisdictional. Their purpose is to ensure the public and orderly character of the marital union. The absence of any of these requisites, save for the exceptional case of a putative marriage under Article 35(2), results in a void marriage. The law, as interpreted by the Supreme Court, strictly construes these formalities to uphold the integrity of the institution of marriage while providing specific, narrow exceptions to accommodate extraordinary circumstances. Legal practitioners must meticulously verify compliance with all formal requisites when assessing the validity of any marriage celebrated under Philippine law.