MARRIAGE AND DIVORCE

Marriage Conflict of Laws

Marriage is a special contract of permanent union between a man and a woman entered into in
accordance with law for the establishment of conjugal and family life. It is the foundation of the
family and an inviolable social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided by this Code.  (Article 1,
Family Code of the Philippines)

In marriage cases, conflict of laws usually arises due to the presence of foreign element. This
foreign element may appear in a situation where the marriage is celebrated abroad and this
marriage is sought to be recognized in another jurisdiction. It may also appear in situations where
the parties to the marriage are citizens or nationals of different states such that their capacity to
contract marriages is governed by their national laws. In these instances, the validity of the
marriage is implicated as forum law may not look kindly on the marriage celebrated abroad.

As a general rule, 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
the Philippines. However, the following are not recognized in our jurisdiction:

1. Those contracted by any party below eighteen years of age even with the consent of his
parents or guardians;
2. Those bigamous and polygamous marriages not falling under Art. 41;
3. Those contracted through mistake of one of the contracting party as to the identity of the other;
4. Those subsequent void marriages under Art. 53;
5. Psychological incapacity; and
6. Marriages void by reasons of public policy:
• Between brothers and sisters, whether of the full or half blood;
• Between collateral blood relatives, whether legitimate or illegitimate, up to the fourth
civil degree;
• Between step-parents and step-children;
• Between parents-in-law and children-in-law;
• Between adopting parent and adopted child;
• Between surviving spouse of the adopting parent and the adopted child;
• Between surviving spouse of the adopted child and adopting parent;
• Between adopted child and legitimate child of the adopter;
• Between adopted children of the same adopter; and
• Between parties where one, with the intention to marry the other, killed that other
person’s spouse or his or her own spouse.
Full Faith and Credit

The Philippines gives full faith and credit to marriages celebrated abroad as a matter of comity
with other nations. Marriage celebrated outside the Philippines are valid and binding unless they
violate public policy or contravene our prohibitive laws. Recognition of foreign marriages is
important since almost all societies value marriage as a social institution.

In determining the validity of foreign marriages, courts usually look to the compliance by the
parties of the requirements of foreign laws. Hence, if a marriage is valid in the place of
celebration, it must also be valid here. Validity is adjudged according to the law of the place
where the marriage is celebrated. The reason for this rule is the “predictability and the intestate
order arising from society’s interest in marriage.” Otherwise, chaos would ensue if a man or a
woman can or may be married in one jurisdiction and not considered married in another. Society
would disintegrate if marriages were only valid in the place of execution.

While some requirements of foreign law may be strange and not similar to ours, so long as the
marriage is considered valid by the law of the place of execution, it is also valid here. It must be
noted that certain rituals performed by members of indigenous trbes are also considered valid
through state recognition and practice.

US v Jarvison

Facts: The government indicted Ben Jarvison for aggravated sexual abuse of a minor child in
Indian Country, it attempted to compel Esther Jarvison to testify against him.   Esther, an 85-
year-old Navajo woman who speaks quite limited English, and Jarvison, who is 77 years old, are
residents of the Navajo Indian Reservation and enrolled members of the Navajo Tribe. During
the hearing, Esther emphatically stated that she did not want to testify against her husband and
that she and Jarvison had married in a traditional Navajo ceremony in Coyote Canyon within the
Navajo Reservation on June 25, 1953.   The district court found that the Jarvisons had a valid
marriage based on this 1953 traditional Navajo ceremony, and concluded that the spousal
testimonial privilege applied under Trammel v. United States. The United States contends that
the district court erred in determining that the Jarvisons were married under traditional Navajo
law, and that even if married, the marriage was a sham or moribund and was created solely to
avoid testifying.  

Issues: Whether or not the marriage was valid

Whether full faith and credit should be accorded said marriage

Ruling:

First issue:
The Court’s analysis of the district court's conclusion that the Jarvisons had a valid marriage
requires us first to examine what law would apply to the question of a marriage between two
Navajo tribal members who live completely within the boundaries of the Navajo Reservation.  It
is often assumed without discussion by courts that, in cases arising on an Indian Reservation
within a State, the substantive law of the State is controlling in such situations.  owever, because
the Navajo Nation retains sovereign authority to regulate domestic relations laws, including
marriage of its Indian subjects, Navajo law is dispositive as to the validity of the marriage in
question. Both Esther and Ben Jarvison are subject to Navajo Nation laws regarding marriage
and domestic relations.   Because domestic relations are considered by the Tribe as being at the
core of Navajo sovereignty, we conclude that Navajo law is the appropriate law under which to
evaluate the validity of the marriage. 

Second issue: Navajo law currently recognizes multiple ways to establish a valid marriage.   It
recognizes both those marriages contracted outside the Navajo Reservation (if valid by the laws
of the place where contracted), and those within the Reservation under the requirements of Title
9 of the Navajo Nation Code. Navajo Code recognizes both traditional and common law
marriage. Because the alleged marriage in this case spans more than a fifty-year period, a proper
understanding of the evolution of Navajo law on traditional and common-law marriage is
required to resolve the validity of the Jarvisons' marriage. Under Navajo tradition, celebration of
a traditional marriage ceremony and the knowledge thereof by the community were sufficient to
create a valid marriage.   A marriage license or other documentation was unnecessary. Despite
the seemingly clear language in this Resolution, subsequent Navajo court decisions interpreted
the Resolution as making the license requirement “directory” rather than mandatory, and court
decisions and subsequent Tribal Council Resolutions recognized the validity of both unlicensed
traditional and common law marriages. 

Cook v Cook

Facts: In 1996, the Arizona legislature amended this state's marriage statutes to provide that
certain marriages, even though "valid by the laws of the place where contracted," were
nonetheless "void and prohibited" in Arizona.  Alan R. Cook appeals from a decree of
dissolution. He contests the trial court's jurisdiction, alleging that there was no valid marriage.
Appellant and Peggy Cook were married on April 7, 1984 in Virginia. They are first cousins.
Marriage between first cousins was then (and is now) valid in Virginia. The parties have one
minor child, born July 11, 1986.  In 1989 the parties moved to Arizona. Arizona's statutory
scheme (then and now) provides that a marriage between first cousins in Arizona is "void."
A.R.S. § 25-101.[2] However, when the Cooks moved to Arizona,  our law also provided that
"marriages valid by the laws of the place where contracted are valid in this state." Thus, under
the plain language of § 25-112(A), the Cook's marriage was "valid" in Arizona in 1989 (when
they moved here) but subsequently declared "void" by the 1996 amendments. On January 3,
1997, appellant filed a petition for marital dissolution in the superior court. Though initially
alleging there was a marriage, appellant subsequently filed a motion to amend/dismiss
dissolution proceedings alleging that the parties' marriage was void and prohibited under A.R.S.
§§ 25-101 and -112(A). The trial court denied the motion. It held, in part, that Arizona law prior
to the 1996 amendments did not preclude recognition of a marriage valid in other states that was
void in Arizona pursuant to § 25-101. It then reasoned that because the law prior to the 1996
amendments permitted recognition of the first cousin marriage in this circumstance, the 1996
amendments could not be retroactively applied to void a marriage that was valid at the time the
parties moved to Arizona. After denial of the motion, trial ensued. The trial court entered various
orders as to property, spousal maintenance, and other issues. Appellant timely appealed.
Issue: Whether or not the marriage was valid?

Ruling:

The first question to be decided is whether the validity of the marriage should be determined
under Arizona or Virginia law. If determined under Virginia law, the marriage is valid; if
determined under Arizona law, we are presented with statutory and constitutional issues as to
whether the marriage is valid. It is unnecessary to address those issues if Virginia law
applies. With a significant exception applicable here, Arizona follows the general rule that it is
the law of the place where the marriage is celebrated, not the law of the place where the divorce
takes place, that determines the validity of the marriage.  Just as enduring as the general rule,
however, has been Arizona's exception to that rule; namely, that the power to define a valid
marriage is vested in this state's legislature and not in the legislature (or judiciary) of another
state nor in the judiciary of this state. Thus, under a conflict-of-law analysis, Arizona authorities
require us to recognize the preeminence of the Arizona legislature's express statutory enactments
as to whether a particular out-of-state marriage is valid or void in Arizona. We do not apply the
law from the state of Virginia, even though Virginia had the most significant relationship to the
parties at the time of the marriage. Though not controlling, our conclusion that appellee has a
vested right in the validity of her marriage is also supported by Arizona law pertaining to
community property. A spouse's interest in the marital community includes a "vested property
interest." Further, A.R.S. § 1-244 (2000) expressly provides that "no statute is retroactive unless
expressly declared therein. The Court can give effect to the legislature's use of the word "void" in
the 1996 amendments by applying that term to exclude vested rights in existing marriages as we
have described them. Had the legislature chosen to nullify existing marriages (thus having the
retroactive effect described) it could have expressly stated so. It did not. Accordingly, we can
give legitimate meaning to the term "void" in the 1996 amendments by applying it to marriages
from other jurisdictions in which the parties had no vested right to have their marriage
recognized in Arizona. As to these marriages, the use of the term "void" applies and means that
such a marriage "shall have no force and effect for any purpose within the State of Arizona." By
construing the term "void" to apply to marriages where rights in Arizona have not "vested," we
adopt an "alternate construction" that "avoids constitutional difficulty" as required by our law. 

Importance of Marriage

All societies consider marriage as essential to the functioning of society. Marriage hold the
members together and prevent the disintegration of family life. It is an institution whose
maintenance the public is deeply interested, for it is the foundation of family and of society,
without which they would neither be civilization nor progress.”

Section 2, article XV of the 1987 Constitution defines marriage as an “inviolable social

Marriages not subject of recognition

While the Philippines gives full faith and credit to conventions and contracts performed abroad,
the same is true only when the acts and contracts do not violate public policy or prohibitive laws.
Hence, not all marriages celebrated abroad and valid in the place of celebration are avlid in our
jurisdiction. There are exception to the general rule of according validity to marriages celebrated
abroad.

The following marriages shall not be recognized in our jurisdiction:

1. Incestuous Marriages under Article 37, Chapter 3, Title1 of the Family Code
2. Void Marriages by reason of public policy under Article 38, Chapter 3, Title 1 f the
Family Cde
3. Polygamous or bigamous marriages under Article 35, Chapter 3, Title 1 of the Family
Code
4. Same-sex marriages under Article 2, Chapter 1, Title 1 of the Civil Code

If the foreign marriage falls under any of the foregoing categories, the same is not recognized in
our jurisdiction. Hence, there can be no marriage between first cousins in our jurisdiction, though
other jurisdictions may allow the same. Also while same-sex marriages have been legalized in
some jurisdictions, the Philippines is still sticking to the time-honored definition of marriage as
being between a man and a woman. The Philippines also has no law on same-sex unions as tthe
same is still a union between man and man or woman and woman.

Obergefell v Hodges

Facts: James Obergefell and John Arthur, a same-sex couple alleging that the state discriminates
against same-sex couples who have married lawfully out-of-state. Arthur, who was terminally ill
and suffering from amyotrophic lateral sclerosis (ALS), sought to identify Obergefell as his
surviving spouse on his death certificate based on their July 11, 2013, Maryland marriage. The
couple was granted a temporary restraining order prohibiting state officials from listing Arthur as
unmarried on his death certificate, in the event he died before the court could consider the case.
Arthur died on Oct. 22, 2013. On Dec. 23, 2013, U.S. District Judge Timothy Black ordered
Ohio authorities to recognize same-sex marriages on death certificates, saying the state's ban on
such unions is unconstitutional and that states cannot discriminate against same-sex couples
simply because some voters “don't like homosexuality.” The narrow ruling applied only to death
certificates. But the State of Ohio appealed that ruling to the Sixth Circuit Court of Appeals.

Issues: Whether or not the fourteenth amendment requires a state to license a marriage between
two people of the same sex

Whether the fourteenth amendment requires a state to recognize a same sex marriage licensed
and performed in a state which grants that right

Ruling:

First issue:

Yes. The ancient origins of marriage confirm its centrality, but it has not stood in isolation from
its developments in law and society. The nature of marriage is that, through its enduring bond,
two persons together can find other freedoms, such as expression, intimacy, and spirituality.

Reversing the Court of Appeals for the Sixth Circuit, the Supreme Court held on June 26, 2015,
that same-sex marriage is a protected right under the Constitution. State bans prohibiting same-
sex marriages were struck down, and all states must recognize same-sex marriages performed out
of state. 

Justice Kennedy identified four "principles and traditions" that provided precedent for the
protection of same-sex marriage under the Due Process Clause of the Fourteenth Amendment:

1. Personal choice in marriage "is inherent in the concept of individual autonomy."

2. Marriage is "fundamental because it supports a two-person union unlike any other in its
importance to the committed individuals."

3. Marriage "safeguards children and families and thus draws meaning from related rights
of childrearing, procreation, and education."

4. Marriage "is a keystone of [the country]'s social order" and there "is no difference
between same- and opposite-sex couples with respect to this principle."

Justice Kennedy also noted marriage equality can be "derived" from the Equal Protection Clause
of the Fourteenth Amendment. Pointing to the interracial marriage case, Loving v. Virginia,
Kennedy wrote, "Indeed, in interpreting the Equal Protection Clause, the Court has recognized
that new insights and societal understandings can reveal unjustified inequality within our most
fundamental institutions that once passed unnoticed and unchallenged."

Responding to criticism that democratic debate should not have been substituted with judicial
action, Kennedy noted there has been "far more deliberation than this argument acknowledges,"
including referenda, legislative debates, grassroots campaigns, scholarly writing, and the more
than 100 amicus filings in Obergefell. Regardless, Kennedy wrote, "An individual can invoke a
right to constitutional protection when he or she is harmed, even if the broader public disagrees
and even if the legislature refuses to act."

Kennedy concluded, "It would misunderstand these men and women to say they disrespect the
idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its
fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded
from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law.
The Constitution grants them that right."

Second issue:

Yes. The Court, in this decision, holds same-sex marriage couples may exercise the fundamental
right to marry in all States. It follows that the Court also must hold—and it now does hold--that
there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed
in another State on the ground of its same-sex character.

Civil unions

A civil union is a legal relationship between two people that provides legal protections to the
couple only at the state level. A civil union is not a marriage, though. Civil unions do not provide
statutory protections, benefits, or responsibilities to couples, and a civil union may not be
recognized in our jurisdiction. Civil unions, similar to domestic partnerships in some ways, were
established primarily as an alternative for same-sex couples in states where marriage was
unavailable. Under longstanding tradition, marriage in our jurisdiction consisted of a union of
one man and one woman (a “traditional marriage”). Certain jurisdictions have enacted laws
recognizing the right of same sex couples to live together as husband and wife. Some
jurisdictions call these civil unions, while others refer to them as same sex unions. However,
these unions are different from the traditional marriage relationship. Civil unions are a creation
of statute where the rights and obligations of the parties are governed by the law creating the
relationship. Hence, no husband and wife relationship is created in civil unions as this kind of
relationship inheres only in the traditional marriage relationship. Same sex couples cannot
therefore rely on the rights and obligations of couples in the traditional marriage relationship as
these two kinds of civil unions are different from one another.