2014 Civil Law, Q23

After undergoing sex reassignment in a foreign country, Jose, who is now using the name of “Josie,” married his partner Ador. Is the marriage valid? (1%)
(A) Yes, the marriage is valid for as long as it is valid in the place where it is celebrated following Article 17 of the Civil Code.
(B) Yes, the marriage is valid if all the essential and formal elements of marriage under the Family Code are present.
(C) No, the marriage is not valid because one essential element of marriage is absent.
(D) No, the marriage is not valid but is voidable because “Josie” concealed her real identity.

Quick check

Under Article 2 of the Family Code, what is an essential requisite regarding the contracting parties to a valid marriage?

What was the doctrine laid down in Silverio v. Republic regarding sex reassignment surgery and civil registry entries?

What is the status of a marriage celebrated in the Philippines between a biological male who underwent sex reassignment and another male?

Under Philippine law, does Article 17 of the Civil Code validate a foreign same-sex marriage celebrated between a post-op transgender person and a same-sex partner?

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Which of the following elements is classified as an essential requisite of marriage under Article 2 of the Family Code?

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1. Requisites of Marriage
Under Article 2 of the Family Code, the essential requisites of marriage are the legal capacity of the contracting parties, who must be a male and a female, and consent freely given in the presence of the solemnizing officer. The difference in sex between the contracting parties is an indispensable requirement for the existence and legal validity of a marriage under Philippine law. Without a biological male and a biological female, no valid marital union can be constituted.

2. Biological Sex Immutability
In Silverio v. Republic, the Supreme Court ruled that sex reassignment surgery does not alter a person's biological sex determined at birth. Under Philippine civil law, there is no law allowing the change of entry in the civil registry regarding sex on the ground of sex reassignment. Consequently, a person's sex at birth remains fixed for legal purposes, including determining legal capacity to marry under the Family Code.

3. Lex Loci Celebrationis
Under Article 17 of the Civil Code, marriages celebrated abroad valid under the laws of the place of celebration are generally recognized in the Philippines. However, this rule is subject to the public policy and statutory restrictions imposed by the Family Code. Same-sex marriages, even if celebrated validly abroad between a transgender person and a partner of the same birth sex, remain void ab initio in the Philippines for violating fundamental public policy.

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