Sep 25, 2020

Virtual Marriage: A Flawed Solution to an Illusory Problem

In the bill’s Explanatory Note, the perceived necessity for virtual marriages was justified as “the current COVID-19 pandemic has caused the postponement and cancellation of many wedding ceremonies because of the prohibition on mass gatherings, observance of physical distancing and health risks posed to everyone…”

House Bill No. 7042, or the Virtual Marriage Bill, seeks to amend the essential requisites of marriage under the Family Code in order to allow the virtual presence of contracting parties before a solemnizing officer, during a virtual marriage ceremony.

In the bill’s Explanatory Note, the perceived necessity for virtual marriages was justified as “the current COVID-19 pandemic has caused the postponement and cancellation of many wedding ceremonies because of the prohibition on mass gatherings, observance of physical distancing and health risks posed to everyone…”

The advancements in technology and the prevalent use of videoconferencing in government proceedings were likewise cited as reasons for allowing virtual marriages in the Philippines.

While the crisis surrounding the introduction of virtual marriages in the Philippines has factual basis, what the bill proposes is a flawed solution to an illusory problem.

The introduction of virtual marriages in the Philippines is hinged on the prohibition on mass gatherings imposed by the various community quarantines in the country, which has led to the postponement and cancellation of wedding ceremonies.

However, the bill overlooks the fact that while mass gatherings are proscribed, there exists no prohibition on the celebration of marriage ceremonies. Marriages may be solemnized despite the pandemic, provided the requirements of social distancing and other health protocols are observed. It is noteworthy that the presence of mere 5 persons would suffice for a valid marriage ceremony.

Further, the imposition of the community quarantines in the country was never meant to be perpetual. In fact, the country is now under the most lenient type of community quarantine, with some social activities already being allowed. It follows that the prohibition on mass gatherings would be gradually further relaxed, and eventually lifted.

While the celebration of a wedding ceremony during a pandemic would necessarily entail difficulties, its solemnity and sublime importance to a marriage and to the family should not be sacrificed for the sake of convenience.

It is erroneous to argue, as the proponent of the bill does, that since proceedings before congress, the courts, and other governmental agencies are being conducted virtually, marriages should follow suit.

This skewed view disregards the stature of marriage as a special contract, as the foundation of the family, and as an inviolable social institution, the celebration of which is of far greater prominence over any governmental transaction.

Recognizing the significance of a marriage ceremony, the Supreme Court, in Go vs. Court of Appeals, stated: “in our society, the importance of a wedding ceremony cannot be underestimated as it is the matrix of the family, and, therefore, an occasion worth reliving in the succeeding years” (G.R. No. 114791, May 29, 1997).

By providing “virtual presence” as an alternative to physical presence, which is required by law, and which has been the norm since time immemorial, the bill does more harm than good. Instead of upholding the sanctity of marriage, it unwittingly becomes a threat to its stability, solemnity, and even its existence.

The physical presence of the contracting parties and the solemnizing officer during the marriage ceremony is not for mere pageantry and for romantic display. It has a purpose based on legal and practical considerations, as it guarantees that the exchange of free consent has “due publication, before a third person or persons, for the sake of notoriety, and the certainty of its being made” (Dyer vs. Brannock, 66 Mo. 391, 27 Ann Rep. 359).

The physical presence of the contracting parties before the solemnizing officer also provides for an opportunity to safeguard the validity of the marriage by ensuring compliance with the essential requisites of marriage, which are the legal capacity, and the free consent of the parties.

By being physically present, the solemnizing officer is able to observe if the contracting parties possess the requisite age (at least 18) and sexes (male and female) for contracting marriage.

The solemnizing officer is also able to determine if the consent is truly given and that it is freely given, that is, it was not attended by fraud, force, intimidation, or undue influence, which would make the marriage voidable.

These precautions that a solemnizing officer is usually able to take are effectively disabled by a virtual marriage as there is no chance to scrutinize the physical manifestations of these essential requisites through a computer screen.

Lastly, in addition to the requirement that the parties appear personally before the solemnizing officer, they are also to declare in the presence of not less than two witnesses of legal age that they take each other as husband and wife.

Curiously, the bill does not provide for the virtual presence of witnesses. This omission manifests a dearth in appreciation of the role witnesses have and could even lead to an absurd situation where witnesses are physically present before the solemnizing officer, while the contracting parties are merely virtually present.

It bears emphasis that these requirements serve to benefit the parties to the marriage, including the State, which is constitutionally mandated to protect marriage. This protection must start at the moment of the inception of marriage, the ceremony, which the State must keep meaningful and dignified.

Ultimately, the profound nature of marriage demands no less than the physical presence of all persons involved, with respective crucial parts to play, at its commencement. This physical presence manifests the parties’ commitment to a life-long union that the State must simply respect and support.

 

Atty. Joel Arzaga is the Secretary of the UA&P Institute of Law and teaches Philippine Politics and Governance. He is also the Vice President for Legislative Affairs of the Alliance for the Family Foundation, Inc (ALFI), and a project manager in Universitas Foundation, Inc.

 

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