Obtaining Legal Capacity to Marry at the US Embassy for Filipinos: A Comprehensive Guide in the Philippine Context

Introduction

In the Philippines, marriage is governed by a combination of civil and family laws, primarily under the Family Code of the Philippines (Executive Order No. 209, as amended). When a marriage involves a foreign national, additional requirements come into play to ensure compliance with both Philippine and international legal standards. One such requirement is the Certificate of Legal Capacity to Contract Marriage (LCCM), which certifies that the foreign party is legally free to enter into marriage—meaning they are of legal age, not currently married, and face no other impediments.

For United States citizens intending to marry in the Philippines, the US government does not issue a formal "Certificate of Legal Capacity." Instead, the US Embassy in Manila provides an "Affidavit in Lieu of a Certificate of Legal Capacity to Contract Marriage." This document serves the same purpose and is accepted by Philippine authorities, such as local civil registrars, for processing marriage licenses.

This article focuses on the process in the context of Filipinos, particularly in scenarios where a Filipino national is marrying a US citizen (including dual US-Filipino citizens) in the Philippines. It is common for Filipinos to encounter this requirement when their partner is a US citizen, whether the US citizen is of Filipino descent or not. Dual citizens (Filipino by birth but naturalized US citizens) may also need this affidavit if they elect to marry under their US citizenship status, as Philippine law treats them as foreigners in such cases unless they affirm their Filipino citizenship for the purpose of the marriage.

The process is consular in nature and falls under the notarial services of the US Embassy. It ensures that the marriage complies with Article 21 of the Family Code, which mandates that foreigners submit proof of legal capacity before a marriage license is issued. Failure to obtain this document can delay or invalidate the marriage proceedings.

Legal Basis

The requirement for legal capacity stems from several key legal provisions:

Family Code of the Philippines (Articles 7, 21, and 35): Article 21 specifically requires foreigners to furnish a certificate of legal capacity issued by their diplomatic or consular officials. This is to prevent bigamous or invalid marriages. Article 35 lists lack of legal capacity as a ground for voiding a marriage.
Civil Code of the Philippines (Republic Act No. 386): Reinforces the need for capacity in contracts, including marriage as a special contract.
US Department of State Regulations (22 CFR Part 52): US consular officers are authorized to administer oaths and affirmations for affidavits related to marital status. The affidavit is not a US-issued marriage license but a sworn statement attesting to the individual's eligibility.
Vienna Convention on Consular Relations (1963): Provides the framework for consular services, including notarial acts like affidavits, which the US Embassy performs in host countries like the Philippines.
Philippine Supreme Court Rulings: Cases such as Republic v. Orbecido (G.R. No. 154380, 2005) and Corpuz v. Sto. Tomas (G.R. No. 186571, 2010) emphasize the importance of proving foreign divorces and legal capacity in international marriages to avoid bigamy charges under Article 349 of the Revised Penal Code.

In the Philippine context, this affidavit is crucial for mixed marriages, which are increasingly common due to overseas Filipino workers (OFWs), balikbayans, and international relationships. Statistics from the Philippine Statistics Authority (PSA) indicate a rise in Filipino-foreigner marriages, with US citizens being one of the top nationalities involved.

Who Needs It

The affidavit is required for:

US Citizens Marrying in the Philippines: Any US national, regardless of ethnicity or residence, who intends to marry a Filipino or another foreigner in the Philippines. This includes:
- Americans of non-Filipino descent.
- Filipino-Americans (dual citizens) who choose to marry as US citizens. Note: Dual citizens can opt to marry as Filipinos by presenting a Philippine passport and an Affirmation of Philippine Citizenship (under Republic Act No. 9225, the Citizenship Retention and Re-acquisition Act), potentially bypassing the need for the affidavit. However, if they present only a US passport, they are treated as foreigners and must obtain it.
Scenarios Involving Filipinos:
- A Filipino national marrying a US citizen in the Philippines (the most common case).
- Two US citizens (one or both of Filipino descent) marrying in the Philippines, where local authorities require the affidavit for both if applicable.
- Remarriages where the US citizen was previously married (e.g., divorced OFWs returning to marry in the Philippines).

It is not needed for:

Marriages between two Filipinos.
Marriages performed in the US (where US state laws apply instead).
Church weddings alone (annulments or civil marriages may still require it for legal validity).

Important: If the marriage is to be performed abroad (e.g., in the US), Filipinos may need a similar certificate from the Philippine Embassy or Consulate in the US, but that is outside the scope of this topic.

Requirements

To obtain the affidavit, the US citizen applicant must prepare the following:

Valid US Passport: Original and photocopy. This serves as proof of identity and citizenship.
Proof of Termination of Previous Marriages (if applicable):
- Original or certified copy of divorce decree (absolute divorce recognized under US law; note that the Philippines does not recognize divorce for Filipinos, but foreign divorces are valid for foreigners under Article 26 of the Family Code).
- Death certificate if widowed.
- Annulment decree if the previous marriage was annulled.
- Documents must be in English or accompanied by an official translation. For divorces obtained in the US, apostille certification under the Hague Apostille Convention may be required by Philippine authorities later, but not for the embassy affidavit itself.
Evidence of Philippine Address or Intent to Marry: Sometimes requested, such as a copy of the marriage license application from the local civil registrar.
Two Witnesses: Not always required, but the embassy may ask for witnesses to the affidavit signing. They must bring valid ID.
Appointment Confirmation: Obtained online.
Fee Payment: In cash (US dollars or Philippine pesos) or credit card.

For Filipinos involved (e.g., the spouse-to-be), no direct documents are needed at the embassy, but they should prepare their own requirements for the Philippine marriage license, such as CENOMAR (Certificate of No Marriage) from the PSA.

Special Considerations for Dual Citizens:

If opting to marry as a Filipino, submit a notarized Affidavit of Re-acquisition/Retention of Philippine Citizenship.
Consult the Bureau of Immigration for citizenship status clarification to avoid complications.

Step-by-Step Procedure

Schedule an Appointment: Visit the US Embassy Manila website (ph.usembassy.gov) and use the online appointment system for notarial services. Appointments are typically available weekdays and must be booked in advance. Walk-ins are not accepted.
Prepare Documents: Gather all required items as listed above. Ensure documents are organized and photocopied.
Appear at the US Embassy: Located at 1201 Roxas Boulevard, Manila. Arrive early for security screening. Only the applicant (and witnesses if needed) are allowed entry.
Complete the Affidavit Form: The embassy provides the standard form, which includes declarations of single status, age (at least 18 for males, 18 for females under Philippine law), and no legal impediments. The applicant swears or affirms the truthfulness before a consular officer.
Pay the Fee: Currently $50 (subject to change; confirm on the embassy website).
Receive the Affidavit: Issued on the spot, usually with multiple copies (one for the local civil registrar, one for records).
Submit to Philippine Authorities: Present the affidavit to the local civil registrar where the marriage will take place, along with other marriage license requirements (e.g., birth certificates, parental consent if under 25).

The entire embassy process typically takes 30-60 minutes, excluding wait times.

Fees and Payment

Embassy Fee: $50 per affidavit (as of latest known rates; always verify).
Additional Costs: Translation fees (if needed), apostille (P1,500-P3,000), travel to Manila, and PSA documents (P150-P500 each).
Payment Methods: Cash in USD or PHP, or major credit cards. No checks.

Indigent applicants may request fee waivers in rare cases, but this is discretionary.

Validity and Use

Validity Period: The affidavit is generally valid for 120 days from issuance, aligning with the marriage license validity under Philippine law. It can be used only for the specified marriage.
Use in Proceedings: Submitted for the marriage license application. After marriage, it becomes part of the civil registry records.
Renewal: If expired, a new affidavit must be obtained.

Common Issues and Tips

Delays Due to Documents: Incomplete divorce papers are a frequent issue. Ensure foreign divorces are judicially recognized in the Philippines if the Filipino spouse was involved in a prior marriage.
Bigamy Risks: Filipinos cannot divorce, so ensure no prior marriages exist via CENOMAR.
COVID-19 or Emergency Protocols: Embassy services may be limited; check for updates.
Tips for Filipinos: Accompany your US partner to the embassy for support. Consult a lawyer for complex cases (e.g., prior marriages). Use services like PSA Helpline for quick document issuance.
Alternatives: If the US citizen cannot appear, a notarized affidavit from a US notary may suffice in some cases, but embassy-issued is preferred.
Legal Advice: This is not a substitute for professional counsel. Consult the Integrated Bar of the Philippines or family law experts.

Conclusion

Obtaining the Affidavit in Lieu of Legal Capacity from the US Embassy is a straightforward yet essential step for US citizens marrying in the Philippines, ensuring legal compliance and smooth proceedings. For Filipinos, understanding this process facilitates international unions while protecting rights under Philippine law. With proper preparation, couples can navigate this requirement efficiently, paving the way for a valid and recognized marriage. Always refer to official sources for the most current information, as procedures may evolve.