• Marriage between deceased person and surviving partner not legally possible

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    Persida Acosta

    Dear PAO,
    My cousin’s fiancé passed away in an accident a few weeks before their scheduled marriage. They have been planning to get married for years already. Everything was in place, and ready for their marriage including the arrangements and the venue. My cousin was incredibly devastated because of what happened to her boyfriend and the abrupt ending to their planned marriage. Because of this, someone suggested that my cousin can still marry her dead fiancé since the whole family of her fiancé approves of her and there was a news report I read before about a guy who married his girlfriend after she died. We also talked to a pastor who is willing to conduct the ceremony for them. We want to know if my cousin’s plan to marry her deceased fiancé is legally possible. Please advise us if we can push through with this.
    Belinda

    Dear Belinda,
    Under the Family Code of the Philippines, marriage is a special contract of permanent union between a man and woman entered into in accordance with law for the establishment of conjugal and family life (Article I, Chapter I, Title I). This means that the whole nature and incidents of marriage are governed by law, specifically by the provisions of the Family Code.

    Considering this, the law states that:

    “Art. 2. 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. (53a)

    “Art. 3. The formal requisites of marriage are:

    (1) Authority of the solemnizing officer;

    (2) A valid marriage license except in the cases provided for in Chapter 2 of this title; and

    (3) 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. (53a, 55a)

    “Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2).

    Xxx” (Articles 2-4, Family Code of the Philippines) Emphasis supplied.

    According to this cited provision of the Family Code, parties to a marriage must have legal capacity and consent freely given in the presence of a solemnizing officer. Considering this requirement alone, it is obvious that no consent can be given by a deceased party to a marriage. And without this essential requisite of consent, there can be no legal marriage. Therefore, there can be no legal marriage between a deceased person and the surviving partner.

    If ever your cousin decides to proceed with a ceremonial “marriage” with her deceased fiancé, it is important to remind her that according to the law and as discussed here, such ceremonial marriage is null and void. Hence, it carries no legal effect between the parties involved. The involvement of a pastor who is willing to officiate the ceremony will still not change the void status of the marriage since it is still not celebrated in accordance with the requirements of the law.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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