By Atty. Eduardo T. Reyes III
September is Bar examinations month for this year. Preparing to meet the questions being anticipated can make the mind wander from here to abroad.
Helping the Bar takers to prepare for their civil law examinations, I answered queries from time to time.
In the latest iteration of mind wandering queries, which, by the way, are still relevant, the questions went this way:
1)What is the status of a marriage contracted abroad between a minor (foreigner, 16 y.o.) and a Filipino (of legal age, 19 y.o.) in the Philippines, where such marriage is valid abroad?
2)What about if the male Filipino married a foreign transmale where it is valid in the latter’s country?
3)What about if the male Filipino married a first cousin (dual citizen) where it is valid in the latter’s country?
Here are the answers I gave.
All the marriages are void insofar as Philippine law is concerned.
The legal bases?
1)Article 17 of the New Civil Code states that:
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.
Prohibitive laws 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 judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
2)Article 26, par. 1 of the New Family Code, in turn, provides:
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 36, 37 and 38.
Minor.
Article 35 (1) prohibits a marriage between persons who are under age or minors. It is submitted that this has public policy considerations such that even if the foreign spouse is governed by his or her national law, since he/ she married a Filipino/ Filipina, then their marriage cannot be deemed valid here in the Philippines because of communality of interest in a marriage.
Trans male.
This is contrary to law. The Family Code mandates that marriage must be between a male and a female. The sex based on our jurisprudence is determined at the time of birth and not after.
First cousins.
Pursuant to Article 38, par.1 of the Family Code, this is void for reason of public policy as the parties are within the 4th degree of consanguinity.
What Article 26 of the Family Code recognizes as “valid here when a marriage is validly celebrated abroad”, refers only to the marriage rituals or ceremonial style and not the intrinsic validity of the marriage and those which may impact on public policy considerations in the Philippines.
(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer and a book author. His website is etriiilaw.com).
