It is apparent that according to the Family Code and the afore-cited jurisprudence, the legitimacy or illegitimacy of a child

attaches upon his/her conception. In the present case, the parents of the unborn fetus were validly married and that their child
was conceived during said marriage, hence, making said child legitimate upon her conception. (Continental Steel Manufacturing
Corp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13, 2009).

MARRIAGE

False affidavit on 5-year period of cohabitation; as if

In Rep. v. Jose Dayot, G.R. No. 175581, March 28, 2008, Nazario, J, the SC once again had the occasion to rule that the
requirement of a marriage license for the validity of marriage is mandatory. One exception is, if the parties have live together as
husband and wife without any legal impediment to marry one another. In lieu of the license, an affidavit of cohabitation would be
sufficient.

In this case, Jose and Felisa were introduced to each other in March 1986. In June 1986, Jose lived in the house of Felisa as
a boarder or they lived together barely 5 months before they got married. In 1986, Felisa asked him to accompany her to the Pasay
City Hall to claim a package where he was asked to sign documents. He initially refused but he was cajoled by Felisa, hence, he
signed the same, only to find out that he contracted marriage with her. He filed a complaint for annulment and/or declaration of
nullity of the marriage alleging that it was a sham marriage, as no marriage ceremony was held; that he did not execute an affidavit
stating that they lived as husband and wife for at least 5 years. Felisa contended otherwise and defended the validity of their
marriage. After trial, the RTC dismissed the complaint, ruling that a person in his right mind would easily suspect any attempt to
make him or her sign a blank sheet of paper.

The Court of Appeals however, declared their marriage void.

The Court of Appeals relied on the ruling in Niñal v. Bayadog, 384 Phil 661 (2000) and reasoned that:

In Niñal v. Badayog, where the contracting parties to a marriage solemnized without a marriage license on the basis of
their affidavit that they had attained the age majority, that being unmarried, they had lived together for at least five (5) years and
that they desired to marry each other, the Supreme Court ruled as follows:

“x x x In other words, the five – year common --- law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period
should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by
exclusivity – meaning no third party was involved at any time within the 5 years and continuity – that is unbroken. Otherwise, if that
continuous five year cohabitation period is computed without any distinction as to whether the parties were capacitated to marry
each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law
relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special
relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman
deporting themselves as husband and wife is based on the approximation of the requirement of the law. The parties should be
afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape
ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly
fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that the two persons
are about to be united in matrimony and that anyone who is aware or who has any knowledge of any impediment to the union of
the two shall make it known to the local civil registrar.

Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages of
exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa is not covered by the
exception to the requirement of a marriage license, it is, therefore void ab initio because of the absence of marriage license.

The reason for the law, (Niñal v. Bayadog) as espoused by the Code Commission, is that the publicity attending a marriage
license may discourage such persons who have lived in a state of cohabitation from legalizing their status.

It is not contested that the marriage of Jose and Felisa was performed without a marriage license. In lieu thereof, they
executed an affidavit declaring that “they have attained the age maturity; that being unmarried, they have lived together as
husband and wife for at least five years; and that because of this union, they desire to marry each other. One of the central issues
in the Petition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short
of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license.

The exception of a marriage license under Article 76, NCC applies only to those who have live together as husband and
wife for at least five years and desire to marry each other. The Civil Code, in no ambiguous terms, places a minimum period he had,
since the language of Article 76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in the
language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is
embodied in the law not as a directory requirement, but as one that partakes of a mandatory character.

It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their
sworn affidavit and contracted marriage. The Republic admitted that Jose and Felisa started lived together only in June 1986, or
barely five months before the celebration of their marriage.

1|
 The insistence of the Republic that the falsity of the statements in the parties’ affidavit will not affect the validity of
marriage, since all the essential and formal requisites were complied with is not quite correct. The argument deserves scan merit.
Patently, it cannot be denied that the marriage between Jose and Felisa was celebrated without the formal requisite of a marriage
license. Neither Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband
and wife for at least five years, so as to be expected from the requirement of a marriage license.

Falsity of statement, not mere irregularity.

The ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was
wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least
five years as required by law, is not correct. The contract is flagrant. The former is with reference to an irregularity of the marriage
license, and not to the absence of one. Hence, there is no marriage license at all. Furthermore, the falsity of the allegation in the
sworn affidavit relating to the period of the parties’ cohabitation, which would have qualified their marriage as an exception to the
requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely
required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but
a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.

Meaning of the 5-year cohabitation.

Jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-
year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the
absence of a marriage. (Niñal v. Bayadog). It covers the years immediately preceding the day of the marriage, characterized by
exclusivity – meaning no third party was involved at any time within the five years – and continuity that is unbroken.

Spouse convicted of adultery; right to share

In Maquilan v. Maquilan, G.R. No. 155409, June 8, 2007, there was a blissful married life of the spouses, but their once
sugar coated romance turned bitter when the man discovered that the wife was committing adultery. He sued her and the
paramour for adultery where they were convicted. Thereafter, he filed a complaint for Declaration of Nullity of Marriage on the
ground of psychological incapacity with Dissolution and Liquidation of the conjugal partnership of gains and damages. They,
however, entered into a Compromise Agreement where they separated and divided their properties. Judgment was rendered
approving the compromise agreement but later on he filed a motion to repudiate the Compromise Agreement as he was not
properly advised by his lawyer. It was denied. In a petition for Certiorari before the CA, he contended that: (1) it was made within
the cooling-off period; (2) the proceedings were conducted without the participation of the OSG. The CA dismissed the Petition
ruling that conviction for adultery did not ipso facto disqualify her from sharing in the conjugal property; that the cooling-off period
under Article 58, Family Code has no bearing and that the presence of the OSG is not indispensable to the execution and validity of
the Compromise Agreement since the propose of his presence is to curtail any collusion between the parties and to see to it that
evidence is not fabricated.

The issue in this case involves the right to share despite conviction for adultery.

The contention that the Compromise Agreement is tantamount to a circumvention of the law prohibiting the guilty spouse
from sharing in the conjugal properties is misplaced. Existing law and jurisprudence do not impose such disqualification.

Under Article 134 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to
judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such a separation of property
allowed under the law. This conclusion holds true even if the proceeding for the declaration of nullity of marriage was still pending.
This voluntary separation of property is subject to the right of all creditors of the conjugal partnership of gain and other person
with pecuniary interest pursuant to Article 136 of the Family Code.

Effect of absence of the OSG.

Petitioner’s claim that since proceedings before the RTC were void in the absence of the participation of the provincial
prosecutor or solicitor, the voluntary separation made during the pendency of the case is also void. The proceedings pertaining to
the Compromise Agreement involved the conjugal properties of the spouses. The settlement had no relation to the questions
surrounding the validity of their marriage. Nor did the settlement amount to collusion between the parties.

In short, the Compromise Agreement can be treated as a contract contemplated by the parties separating their properties
which was submitted to the court for approval as contemplated by Article 136 of the Family Code.

DIVORCE

Validity of foreign divorce in the Philippines.

2|
 It is apparent that according to the Family Code and the afore-cited jurisprudence, the legitimacy or illegitimacy
of a child attaches upon his/her conception. In the present case, the parents of the unborn fetus were validly married and that
their child was conceived during said marriage, hence, making said child legitimate upon her conception. (Continental Steel
Manufacturing Corp. v. Hon. Accredited Voluntary Arbitrator, et al., G.R. No. 182836, October 13, 2009).

MARRIAGE

False affidavit on 5-year period of cohabitation; as if

In Rep. v. Jose Dayot, G.R. No. 175581, March 28, 2008, Nazario, J, the SC once again had the occasion to rule that the
requirement of a marriage license for the validity of marriage is mandatory. One exception is, if the parties have live together as
husband and wife without any legal impediment to marry one another. In lieu of the license, an affidavit of cohabitation would be
sufficient.

In this case, Jose and Felisa were introduced to each other in March 1986. In June 1986, Jose lived in the house of Felisa as
a boarder or they lived together barely 5 months before they got married. In 1986, Felisa asked him to accompany her to the Pasay
City Hall to claim a package where he was asked to sign documents. He initially refused but he was cajoled by Felisa, hence, he
signed the same, only to find out that he contracted marriage with her. He filed a complaint for annulment and/or declaration of
nullity of the marriage alleging that it was a sham marriage, as no marriage ceremony was held; that he did not execute an affidavit
stating that they lived as husband and wife for at least 5 years. Felisa contended otherwise and defended the validity of their
marriage. After trial, the RTC dismissed the complaint, ruling that a person in his right mind would easily suspect any attempt to
make him or her sign a blank sheet of paper.

The Court of Appeals however, declared their marriage void.

The Court of Appeals relied on the ruling in Niñal v. Bayadog, 384 Phil 661 (2000) and reasoned that:

In Niñal v. Badayog, where the contracting parties to a marriage solemnized without a marriage license on the basis of
their affidavit that they had attained the age majority, that being unmarried, they had lived together for at least five (5) years and
that they desired to marry each other, the Supreme Court ruled as follows:

“x x x In other words, the five – year common --- law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the absence of the marriage. This 5-year period
should be the years immediately before the day of the marriage and it should be a period of cohabitation characterized by
exclusivity – meaning no third party was involved at any time within the 5 years and continuity – that is unbroken. Otherwise, if that
continuous five year cohabitation period is computed without any distinction as to whether the parties were capacitated to marry
each other during the entire five years, then the law would be sanctioning immorality and encouraging parties to have common law
relationships and placing them on the same footing with those who lived faithfully with their spouse. Marriage being a special
relationship must be respected as such and its requirements must be strictly observed. The presumption that a man and a woman
deporting themselves as husband and wife is based on the approximation of the requirement of the law. The parties should be
afforded any excuse to not comply with every single requirement and later use the same missing element as a pre-conceived escape
ground to nullify their marriage. There should be no exemption from securing a marriage license unless the circumstances clearly
fall within the ambit of the exception. It should be noted that a license is required in order to notify the public that the two persons
are about to be united in matrimony and that anyone who is aware or who has any knowledge of any impediment to the union of
the two shall make it known to the local civil registrar.

Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage license, save marriages of
exceptional character, shall be void from the beginning. Inasmuch as the marriage between Jose and Felisa is not covered by the
exception to the requirement of a marriage license, it is, therefore void ab initio because of the absence of marriage license.

The reason for the law, (Niñal v. Bayadog) as espoused by the Code Commission, is that the publicity attending a marriage
license may discourage such persons who have lived in a state of cohabitation from legalizing their status.

It is not contested that the marriage of Jose and Felisa was performed without a marriage license. In lieu thereof, they
executed an affidavit declaring that “they have attained the age maturity; that being unmarried, they have lived together as
husband and wife for at least five years; and that because of this union, they desire to marry each other. One of the central issues
in the Petition at bar is thus: whether the falsity of an affidavit of marital cohabitation, where the parties have in truth fallen short
of the minimum five-year requirement, effectively renders the marriage void ab initio for lack of a marriage license.

The exception of a marriage license under Article 76, NCC applies only to those who have live together as husband and
wife for at least five years and desire to marry each other. The Civil Code, in no ambiguous terms, places a minimum period he had,
since the language of Article 76 is precise. The minimum requisite of five years of cohabitation is an indispensability carved in the
language of the law. For a marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed with. It is
embodied in the law not as a directory requirement, but as one that partakes of a mandatory character.

It is indubitably established that Jose and Felisa have not lived together for five years at the time they executed their
sworn affidavit and contracted marriage. The Republic admitted that Jose and Felisa started lived together only in June 1986, or
barely five months before the celebration of their marriage.

3|
 The insistence of the Republic that the falsity of the statements in the parties’ affidavit will not affect the validity of
marriage, since all the essential and formal requisites were complied with is not quite correct. The argument deserves scan merit.
Patently, it cannot be denied that the marriage between Jose and Felisa was celebrated without the formal requisite of a marriage
license. Neither Jose and Felisa meet the explicit legal requirement in Article 76, that they should have lived together as husband
and wife for at least five years, so as to be expected from the requirement of a marriage license.

Falsity of statement, not mere irregularity.

The ratiocination of the Republic that as a marriage under a license is not invalidated by the fact that the license was
wrongfully obtained, so must a marriage not be invalidated by a fabricated statement that the parties have cohabited for at least
five years as required by law, is not correct. The contract is flagrant. The former is with reference to an irregularity of the marriage
license, and not to the absence of one. Hence, there is no marriage license at all. Furthermore, the falsity of the allegation in the
sworn affidavit relating to the period of the parties’ cohabitation, which would have qualified their marriage as an exception to the
requirement for a marriage license, cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely
required to be deposed and attested to by the parties under oath. If the essential matter in the sworn affidavit is a lie, then it is but
a mere scrap of paper, without force and effect. Hence, it is as if there was no affidavit at all.

Meaning of the 5-year cohabitation.

Jurisprudence has laid down the rule that the five-year common-law cohabitation period under Article 76 means a five-
year period computed back from the date of celebration of marriage, and refers to a period of legal union had it not been for the
absence of a marriage. (Niñal v. Bayadog). It covers the years immediately preceding the day of the marriage, characterized by
exclusivity – meaning no third party was involved at any time within the five years – and continuity that is unbroken.

Spouse convicted of adultery; right to share

In Maquilan v. Maquilan, G.R. No. 155409, June 8, 2007, there was a blissful married life of the spouses, but their once
sugar coated romance turned bitter when the man discovered that the wife was committing adultery. He sued her and the
paramour for adultery where they were convicted. Thereafter, he filed a complaint for Declaration of Nullity of Marriage on the
ground of psychological incapacity with Dissolution and Liquidation of the conjugal partnership of gains and damages. They,
however, entered into a Compromise Agreement where they separated and divided their properties. Judgment was rendered
approving the compromise agreement but later on he filed a motion to repudiate the Compromise Agreement as he was not
properly advised by his lawyer. It was denied. In a petition for Certiorari before the CA, he contended that: (1) it was made within
the cooling-off period; (2) the proceedings were conducted without the participation of the OSG. The CA dismissed the Petition
ruling that conviction for adultery did not ipso facto disqualify her from sharing in the conjugal property; that the cooling-off period
under Article 58, Family Code has no bearing and that the presence of the OSG is not indispensable to the execution and validity of
the Compromise Agreement since the propose of his presence is to curtail any collusion between the parties and to see to it that
evidence is not fabricated.

The issue in this case involves the right to share despite conviction for adultery.

The contention that the Compromise Agreement is tantamount to a circumvention of the law prohibiting the guilty spouse
from sharing in the conjugal properties is misplaced. Existing law and jurisprudence do not impose such disqualification.

Under Article 134 of the Family Code, separation of property may be effected voluntarily or for sufficient cause, subject to
judicial approval. The questioned Compromise Agreement which was judicially approved is exactly such a separation of property
allowed under the law. This conclusion holds true even if the proceeding for the declaration of nullity of marriage was still pending.
This voluntary separation of property is subject to the right of all creditors of the conjugal partnership of gain and other person
with pecuniary interest pursuant to Article 136 of the Family Code.

Effect of absence of the OSG.

Petitioner’s claim that since proceedings before the RTC were void in the absence of the participation of the provincial
prosecutor or solicitor, the voluntary separation made during the pendency of the case is also void. The proceedings pertaining to
the Compromise Agreement involved the conjugal properties of the spouses. The settlement had no relation to the questions
surrounding the validity of their marriage. Nor did the settlement amount to collusion between the parties.

In short, the Compromise Agreement can be treated as a contract contemplated by the parties separating their properties
which was submitted to the court for approval as contemplated by Article 136 of the Family Code.

DIVORCE

Validity of foreign divorce in the Philippines.a divorce secured abroad would come within the pale of the country’s policy against
absolute divorce, the reckoning point is the citizenship of the parties at the time a valid divorce is obtained.

4|