Article 2 of the Family Code: Essential requisites of marriage
Status: In force
What does Article 2 say?
No marriage shall be valid, unless these essential requisites are present:
(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.
What does it mean in plain language?
Article 2 lists the two things a couple must have for any marriage to be valid. First, both must have legal capacity to marry, and they must be a male and a female. Second, both must give their consent freely, in front of the person who solemnizes the wedding.
These are called the "essential" requisites because they are about the couple themselves. The "formal" requisites, which are about the wedding (the officer, the license and the ceremony), are in Article 3.
How does it work in real life?
Rosa and Mark: a wedding at 17
Rosa is 17. Her parents agree and sign papers so she can marry Mark, who is 25. Rosa does not have legal capacity, because the minimum age is 18. The marriage is void from the start, even with the parents' consent (Articles 5 and 35(1)). This is a made-up example.
Joy and Paolo: a "yes" under threat
Joy agrees to marry Paolo only because his brother threatened to hurt her family. Joy did say yes, so consent is not missing, but it was not freely given. The marriage is voidable under Article 45(4). Joy can ask a court to annul it within five years after the threat stops (Article 47(4)). If she freely lives with Paolo as his wife after that, she loses the ground. This is a made-up example.
Liza and Ben: consent in person
Liza and Ben want a quick wedding while Ben is working in Dubai. They ask if Ben's brother can say "I do" for him. He cannot. The Family Code asks for each party's own consent, declared in person before the solemnizing officer (Articles 2 and 3). This is a made-up example.
These examples only show how the rule works. They are not advice for a real case.
What does this mean in practice?
- A marriage that lacks an essential requisite is void, but a spouse who wants to remarry still needs a final court judgment declaring it void (Article 40).
- A voidable marriage stays valid until a court annuls it. Each ground in Article 45 has its own deadline in Article 47.
- The sworn application for the marriage license asks each party for age, civil status, how any earlier marriage ended, and the degree of relationship between the two (Article 11).
- For the formal side of the wedding, see Article 3 and marriage license requirements.
What does "legal capacity" mean?
Legal capacity means the person is allowed by law to marry. The Family Code sets the rules in other articles:
- Age. The person must be 18 or older (Article 5). A marriage of anyone below 18 is void, even with the parents' consent (Article 35(1)).
- No existing marriage. A person who is still married cannot marry again. A bigamous or polygamous marriage is void, except in the case of Article 41 (a spouse declared presumptively dead) (Article 35(4)).
- No prohibited relationship. Close relatives, and some persons linked by marriage or adoption, cannot marry each other (Articles 37 and 38).
What does "consent freely given" mean?
Consent means each party really agrees to marry the other. It must be "freely given". Consent obtained by force, intimidation or fraud is defective; the effect is explained below. It must also be given "in the presence of the solemnizing officer". This is why both parties have to appear in person at the wedding and declare that they take each other as husband and wife (Article 3(3)).
What happens if a requisite is missing or defective?
The Family Code makes a difference between a requisite that is missing and one that is only defective. Article 4 says:
The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).
A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45.
- Missing (absent): the marriage is void from the start. See void marriage.
- Defective: the marriage is valid until a court annuls it. This is a voidable marriage. Examples of defects are in Article 45: consent obtained by fraud, by force or intimidation, or a party of unsound mind.
Which Supreme Court rulings are relevant?
Frequently asked questions
What are the essential requisites of marriage in the Philippines?
There are two, under Article 2 of the Family Code: legal capacity of the two parties, who must be a male and a female, and consent freely given in the presence of the solemnizing officer.
What is the difference between essential and formal requisites?
Essential requisites are about the couple: their capacity to marry and their free consent (Article 2). Formal requisites are about the wedding itself: an authorized officer, a valid license unless exempt, and the ceremony with two adult witnesses (Article 3).
What happens if an essential requisite is missing?
Article 4 says the absence of an essential or formal requisite makes the marriage void from the start, except in the good-faith case of Article 35(2). A defect in an essential requisite, such as consent obtained by fraud, makes the marriage voidable under Article 45 instead.
Can someone give consent to marry for another person?
No. Article 2 asks for consent given in the presence of the solemnizing officer, and Article 3 requires both parties to appear before the officer and personally declare that they take each other as husband and wife.
Is a marriage valid if one party was forced to say yes?
It is voidable, not void. Under Article 45(4), a marriage where consent was obtained by force, intimidation or undue influence can be annulled. The ground is lost if the party freely lived with the other as husband and wife after the force stopped.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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