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Persons and Family Relations

B a rO p s H e a d
I
P Y C a u n a n
Aca d s H e a d
I
B e th Lice ra ld e
S u b je ct H e a d
I
Ja s G a p a ta n
Fa cu lty Ad vise r
I
TABLE OF CONTENTS
I. PERSONS ....................................................................................................................................................................................................... 1
PERSON ................................................................................................................................................................. 1
KINDS OF CAPACITY..................................................................................................................................................... 1
LIMITS ON CAPACITY TOACT............................................................................................................................................ 1
KINDS OF PERSONS ..................................................................................................................................................... 1
II. CITIZENSHIP AND DOMICILE.............................................................................................................................................................2
WHOARE FILIPINOCITIZENS?............................................................................................................................................................................................2
DOMICILE..........................................................................................................................................................................................................................2
III. MARRIAGE ........................................................................................................................................................................................2
MARRIAGE.........................................................................................................................................................................................................................2
BREACH OF PROMISE TOMARRY.........................................................................................................................................................................................2
ESSENTIAL REQUISITES OF MARRIAGE.................................................................................................................................................................................2
FORMAL REQUISITES OF MARRIAGE....................................................................................................................................................................................2
MARRIAGES CELEBRATED ABROAD (ART. 26) ......................................................................................................................................................................3
VOID MARRIAGES...............................................................................................................................................................................................................4
VOIDABLE MARRIAGES.......................................................................................................................................................................................................5
LEGAL SEPARATION...........................................................................................................................................................................................................6
IV. RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE.......................................................................................................... 8
OBLIGATIONS OF SPOUSES.................................................................................................................................................................................................8
RIGHTS OF SPOUSES.........................................................................................................................................................................................................8
USE OF SURNAME..............................................................................................................................................................................................................8
V. PROPERTY RELATIONS BETWEEN SPOUSES..................................................................................................................................... 9
A. DONATIONS BY REASON OF MARRIAGE...........................................................................................................................................................................9
B. ABSOLUTE COMMUNITY OF PROPERTY..........................................................................................................................................................................10
C. CONJUGAL PARTNERSHIP OF GAINS.............................................................................................................................................................................12
D. SEPARATION OF PROPERTIES DURING MARRIAGE..........................................................................................................................................................17
E. REGIME OF SEPARATION OF PROPERTY.........................................................................................................................................................................18
F. UNIONS WITHOUT MARRIAGE........................................................................................................................................................................................18
VI. THE FAMILY.................................................................................................................................................................................... 20
THE FAMILY HOME...........................................................................................................................................................................................................20
VII. PATERNITY AND FILIATION............................................................................................................................................................21
A. DEFINITION..................................................................................................................................................................................................................21
B. LEGITIMATE CHILDREN.................................................................................................................................................................................................21
C. IMPUGNINGLEGITIMACY...............................................................................................................................................................................................22
D. ILLEGITIMATE CHILDREN...............................................................................................................................................................................................23
E. LEGITIMATED CHILDREN...............................................................................................................................................................................................24
VIII. ADOPTION ...................................................................................................................................................................................25
A. DEFINITION..................................................................................................................................................................................................................25
B. WHOMAY ADOPT.........................................................................................................................................................................................................25
C. WHOMAY BE ADOPTED................................................................................................................................................................................................27
D. PRE-ADOPTION...........................................................................................................................................................................................................28
E. ADOPTION PROCEDURE................................................................................................................................................................................................29
IX. SUPPORT ....................................................................................................................................................................................... 31
KINDS OF SUPPORT..........................................................................................................................................................................................................31
CHARACTERISTICS OF SUPPORT........................................................................................................................................................................................31
WHOARE OBLIGED TOSUPPORT EACH OTHER (ART. 195)................................................................................................................................................31
ORDER OF SUPPORT (ART. 199).......................................................................................................................................................................................31
X. PARENTAL AUTHORITY....................................................................................................................................................................32
DEFINITION......................................................................................................................................................................................................................32
SUBSTITUTE PARENTAL AUTHORITY EXERCISED BY (IN ORDER)..........................................................................................................................................33
SPECIAL PARENTAL AUTHORITY EXERCISED BY (ART. 218) ................................................................................................................................................33
RIGHTS AND DUTIES OF PARENTS.....................................................................................................................................................................................33
RIGHTS AND DUTIES OF CHILDREN....................................................................................................................................................................................33
EFFECT OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILD (ART. 225)..............................................................................................................34
GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY (ART. 231).....................................................................................................................................34
TERMINATION OF PARENTAL AUTHORITY (ART. 228)...........................................................................................................................................................34
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I. PERSONS
Person
Any being, natural (CC Art. 40) or juridical (CC
Art. 42), susceptible to legal rights and obligations,
and can be a subject of legal relations.
Kinds of Capacity
1. JURIDICAL CAPACITY
Fitness to be subject of legal relations (CC Art.
37)
RULE
Inherent to all natural persons, and can only
be extinguished by death. On juridical persons,
they gain juridical capacity from the moment they
are created.
Juridical capacity is just one, indivisible,
irreducible, and essentially the same for all men; it
is an inherent and ineffaceable attribute of man,
and attaches to him by the mere fact of his being a
man.
2. CAPACITY TO ACT
Power to do acts with legal effect (CC Art. 37)
RULE
They are acquired, and may be lost. They are
also subjects to certain restrictions. Mere existence
of a human being does not confer upon him/her a
capacity to act.
No one has 100% capacity to act, nor does
anyone have absolutely no capacity to act. Even
though one may have “full capacity to act,” one
still does not reach 100% capacity to act but only
close to it. As to infants, though they still have not
acquired a capacity to act, this does not mean that
they have 0% capacity to act.
Limits on Capacity to Act
 Insanity, Imbecility, State of being deaf-mute,
Penalty, Prodigality, Family Relations,
Alienage, Absence, Insolvency, Trusteeship,
(CC Arts. 38, 39CC) and other limits spread
throughout the Code.
 Art. 39(2), or rule on married women 21 years
and over, has been amended by RA 6809,
which lowers the age of majority to 18 year
old.
Kinds of Persons
1. NATURAL PERSONS
Human beings
GENERAL RULE
Birth determines personality (CC Art 40).
Death extinguishes civil personality (CC Art 42).
EXCEPTION
A “conceived child shall be considered born for
all purposes that are FAVORABLE to it, provided it
be born later” (Art 40, 2nd clause) with the
following circumstances:
1. From the time it is completely delivered from
the mother's womb.
2. But if the fetus had an intra-uterine life of less
than seven months, it should survive for at
least 24 hours after its complete delivery. (Art.
41, CC) [Test of life: complete respiration]
TOLENTINO: Birth means complete removal of the
fetus from the mother’s womb.
PROF. BALANE: Modern medicine cannot as of yet
determine if the intra-uterine life is 7 months or
less in terms of number of days. Modern medicine
cannot determine the exact time when fertilization
took place. Modern medicine estimates the fetus
age in weeks.
In Geluz v CA, The Supreme Court held that
the father cannot file charges on behalf of the
aborted fetus because it never acquired a civil
personality, because it was not alive when it was
delivered from the mother’s womb. The baby thus
did not acquire any legal rights. The father could
have filed for moral damages on his own capacity,
had he suffered anguish from the loss of the baby,
but it appears from the facts that he did not suffer
from any pain or anguish. Thus, he cannot claim
any damages.
EFFECT OF DEATH
The effect of death upon the rights and
obligations of the deceased is determined by law,
by contract and by will (Art 42, par. 2). However,
the Civil Code does not define death, nor can
doctors precisely pinpoint the exact moment when
death occurs.
DOUBT ON THE ORDER OF DEATH
If they are called to succeed each other,
whoever alleges the death of one prior to the
other, shall prove the same. In the absence of
proof, it is presumed that they died at the same
time, and there will be no transmission of rights
from one to the other. (Art. 43, CC)
In Joaquin v Navarro, the rule on Art. 43 was
not applied in determining whether the mother or
the son died first. There were eyewitnesses who
can give evidence as to who died first, so there is
no reason for applying the presumption. It is only
when it is impossible to determine who died first
that the presumption applies.
2. JURIDICAL PERSONS
a. The State and its Political subdivisions;
b. Other Corporations, Institutions and Entities
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for public interest or purpose, created by law;
c. Corporations, Partnerships, and Associations
for private interest or purpose to which the law
grants a juridical personality. (CC Art 44)
GOVERNING LAWS:
Juridical
Person
Governed by
State Constitution (Defines its
organization and limits its rights vis-
à-vis citizens)
Political
subdivision
Charter
Public
corporation
Charter
Private
corporation
Corporation Code, Articles of
Incorporation and By-Laws
Partnerships Stipulations of the parties and
suppletorily by the general
provisions on partnership
RULES
 Juridical persons may acquire and possess
property of all kinds, incur obligations, and
bring civil or criminal actions (CC Art. 46)
 Upon dissolution of corporations or institutions
and other entities for public interest, their
property and assets shall be disposed of in
pursuance of the law or charter creating them.
(CC Art. 47)
II. CITIZENSHIP AND DOMICILE
Who Are Filipino Citizens?
1. Those who are citizens of the Philippines at the
time of the adoption of the 1987 Constitution;
2. Those whose fathers or mothers are citizens of
the Philippines;
3. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority; and
4. Those who are naturalized in accordance with
law. (Art IV, §1, 1987 Philippine Constitution)
These have superseded the rules on citizenship
enumerated in the Civil Code.
Domicile
For Natural Persons: the place of their habitual
residence (CC Art. 50).
For Juridical Persons: the place where their legal
representation is established, or where they
exercise their primary functions, unless there is a
law or other provision that fixes the domicile (CC
Art. 51).
DOMICILE VS. RESIDENCE
While domicile is permanent (there is intent to
remain), residence is temporary and may be
changed anytime (there is no necessary intent to
remain).
REQUISITES OF DOMICILE (CALLEGO VS.
VERA)
1. Physical Presence
2. Intent to remain permanently
KINDS OF DOMICILE
1. Domicile of Origin
 Domicile of parents of a person at the time
he was born.
2. Domicile of Choice
 Domicile chosen by a person, changing his
domicile of origin.
 A 3rd requisite is necessary – intention not
to return to one’s domicile as his permanent
place.
3. Domicile by Operation of Law (i.e., Article 69,
domicile of minor)
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III. MARRIAGE
Marriage
Is:
1. a Special Contract
2. of Permanent Union
3. Between a Man and a Woman
4. entered into in Accordance with law
5. for the Establishment of Conjugal and Family
life.
6. It is the Foundation of the Family
7. and an Inviolable Social Institution
8. whose Nature, Consequences, ,and Incidents
are governed by Law and not subject to
Stipulation,
9. except that Marriage settlements may Fix
property relations during the marriage within
the Limits provided by this Code. (Art 1,
Family Code)
Breach of Promise to Marry
In Tanjanco v CA, the Supreme Court held
that “breach of promise to marry is not an
actionable wrong.” The fact that the Santos, the
woman, agreed to have sexual intercourse with
Tanjanco for a year does not constitute seduction
but mutual passion.
However, in Wassmer v Velez, Velez was
held liable for the cost of the wedding preparations
spent by Wassmer, because he disappeared two
days before the marriage. The Supreme Court said
that while mere breach is not an actionable wrong,
Velez is still liable under Art. 21 of the Civil Code
because he abused his right, thereby causing moral
and material damages, which should be
compensated.
Essential Requisites of Marriage
1. Legal Capacity of contracting parties who
must be Male and Female; and
2. Consent freely given in the presence of the
solemnizing officer. (Art. 2, FC)
In People v Santiago (51 Phil 68), the
marriage between Santiago and his niece was
declared void for lack of consent on the part of
Santiago. He only got married to her to avoid
prosecution because he raped her the same
morning that the marriage was solemnized by a
Protestant minister. The Supreme Court held that it
was a mere ruse for him to escape criminal liability.
Formal Requisites Of Marriage
1. Authority of the solemnizing officer;
2. A valid Marriage License except in cases
under Chapter 2 of this Title;
3. Marriage Ceremony (i.e. appearance of
contracting parties before solemnizing officer
and their personal declaration that they take
each other as husband and wife). (Art 3, FC)
ABSENCE, DEFECT, OR IRREGULARITY IN THE
REQUISITES
 ABSENCE of any of the essential or formal
requisites shall render the marriage VOID AB
INITIO, (FC Art 4, par. 1) except when it is
solemnized by an unauthorized person with
either or both contracting parties having good
faith that he had authority to do so (FC Art
35, par. 2)
 A DEFECT in any of the ESSENTIAL
REQUISITES shall render the marriage
VOIDABLE (FC Art 4, par. 2).
 An IRREGULARITY in the FORMAL
REQUISITES shall NOT AFFECT the validity of
the marriage, but the party or parties
responsible for the irregularity shall be civilly,
criminally, and administratively liable (FC Art
4, par. 3).
A. MARRIAGE CEREMONY
There is no particular form or religious rite
required by law.
MINIMUM REQUIREMENTS BY LAW
1. The contracting parties appear personally
before the solemnizing officer
2. They declare in the presence of at least two
witnesses of legal age,
3. That they take each other as husband and
wife;
4. The declaration shall be contained in the
marriage certificate,
5. Which shall be signed by the contracting
parties and their witnesses and attested by the
solemnizing officer. (Art. 6, FC)
In a marriage in articulo mortis, when one or
both parties are unable to sign the marriage
certificate, it shall be sufficient for one of the
witnesses to write the name of said party, which
shall be attested by the solemnizing officer. (Art 6,
par. 2)
PLACES WHERE MARRIAGE MAY BE CELEBRATED
1. Chambers of the judge or in open court;
2. Church, chapel, or temple
3. Office of the Consul-general, consul, or vice-
consul, as the case may be. (Art. 8, FC)
Exceptions
Marriage in articulo mortis, in a remote place
(the barrio or barangay should be so located that
there is no means of transportation to enable such
party to appear personally before the local civil
registrar – Art. 29), or where both of the parties
request the solemnizing officer in writing, in which
case the marriage may be solemnized at a house
or place designated by then in a sworn statement.
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B. AUTHORITY OF SOLEMNIZING OFFICERS
MARRIAGE MAY BE SOLEMNIZED BY:
1. Any incumbent member of the judiciary within
the court’s jurisdiction (Art. 7, par. 1);
2. Any priest, rabbi, imam, or minister of any
church or religious sect duly authorized by his
church or religious sect;
 He/she must be registered with the civil
registrar general (CRG).
 He/she must be acting within the limits of the
written authority granted by the church
 At least one of the parties must be a member
of the church or religious sect to which the
solemnizing officer belongs (FC Art. 7, par. 2).
3. Ship captain or airplane chief (FC Art 7, par.
3);
 Can only solemnize marriages in articulo
mortis (when there one or both parties are at
the point of death), while the ship is at sea or
the plane is in flight, or at stopovers or ports
of call (FC Art 31).
4. Any military commander of a unit to which a
chaplain is assigned, in the absence of the
latter (FC Art 7, par. 4);
 Can only solemnize marriages in articulo
mortis between persons within the zone of
military operation, whether members of the
armed forces or civilians (Art 32, FC).
5. Consul-general, consul, or vice consul (Art. 7,
par. 5)
 Can solemnize marriages between Filipino
citizens abroad. The issuance of the marriage
license and the duties of the local civil
registrar shall also be performed by said
consular official. (Art. 10, FC)
6. Mayors (under the Local Government Code, not
found in the Family Code)
C. MARRIAGE LICENSE
REQUIREMENTS FOR MARRIAGE LICENSE
APPLICATION
1. Full name of the contracting party;
2. Place of birth;
3. Age and date of birth;
4. Civil status;
5. If previously married, how, when and where
the previous marriage was dissolved or
annulled;
6. Present residence and citizenship;
7. Degree of relationship of the contracting
parties;
8. Full name, residence and citizenship of the
father;
9. Full name, residence and citizenship of the
mother; and
10. Full name, residence and citizenship of the
guardian or person having charge, in case the
contracting party has neither father nor mother
and is under the age of twenty-one years (Art.
11, FC)
MARRIAGES EXEMPT FROM MARRIAGE
LICENSE REQUIREMENT:
1. In case one or both contacting parties are at
the point of death (in articulo mortis). (Art. 27)
2. If the residence of either party is so located
that there is no means of transportation to
enable them to personally appear before the
local civil registrar. (Art. 28)
3. Marriage in articulo mortis between passengers
or crew members. [May be solemnized by the
ship captain or airplane pilot.] (Art. 31)
4. Marriage in articulo mortis between persons
within the zone of military operation. [May be
solemnized by the military commander of the
unit] (Art. 32)
5. Marriages among Muslims or among members
of cultural communities, provided they are
solemnized in accordance with their customs,
rites, or practices. (Art. 33)
6. Marriage between a man and a woman who
have lived together as husband and wife for at
least five years, without legal impediment to
marry each other.
In Ninal v Badayog, the Supreme Court held
that there must be no legal impediment during the
entire five or more years that the parties are living
as husband and wife. Since there is only a
difference of one year and eight months since the
death of the first wife and the execution of their
affidavit, the five-year requirement is not met,
even if they have cohabited during the subsistence
of the previous marriage.
In Madridejo v De Leon, where the parties
were married in articulo mortis, the Supreme Court
held that the marriage is still valid even if the
priest who solemnized the marriage failed to send
a copy of the marriage certificate to the municipal
secretary. The marriage certificate is not a
requisite of marriage but a mere proof that the
marriage really existed. And since the marriage
was solemnized under exceptional circumstances,
there is no need for a marriage license.
Marriages Celebrated Abroad (Art. 26)
GENERAL RULE:
Marriages solemnized outside the RP in
accordance with the law of the foreign country shall
be valid in the Philippines (lex loci celebrationis)
EXCEPTIONS:
1. Marriage between persons below 18 years old –
Art. 35(1)
2. Bigamous or polygamous marriage – Art. 35(4)
3. Mistake in identity – Art. 35 (5)
4. Marriages void under Article 53 – Art. 35 (6)
5. Psychological incapacity – Art. 36
6. Incestuous marriages – Art. 37
7. Marriage void for reasons of public policy – Art.
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If a Filipino married to a foreigner and the latter
subsequently obtains a valid divorce abroad
capacitating him./her to remarry, the Filipino
spouse shall likewise have the capacity to remarry
under the Philippine law (Art 26(2)).
Void Marriages
MARRIAGE IS VOID AB INITIO WHEN:
I. UNDER FC ART. 35
1. Contracted by anyone below 18 years old,
even with consent of parents
2. Solemnized by anyone not authorized to
do so, except when one or both parties
believe that the solemnizing officer had
authority to do so.
3. There is no marriage license, except in
marriage under exceptional circumstances
4. It is bigamous or polygamous, except
when first spouse has been absent for four
years, or two years under extraordinary
circumstances, and the remaining spouse
has a well-founded belief that the absent
spouse is dead, and is judicially declared
presumptively dead. (Art. 41)
5. There is a mistake in identity of the other
contracting party
6. The subsequent marriage is void under
Art. 53:
Marriage is void when Art. 52 is not complied
with: There must be a partition and distribution of
property after the judgment of annulment of
declaration of nullity. The presumptive legitimes of
the children must also be delivered and recorded in
the appropriate civil registry.
II. UNDER FC ART. 36
7. Any contracting party is, at the time of the
celebration of the marriage,
psychologically incapacitated to comply
with the essential marital obligations.
III. UNDER FC ART. 37 (INCESTUOUS
RELATIONSHIPS)
8. Between ascendants and descendants of any
degree, legitimate or illegitimate.
9. Between brothers and sisters, whether full
or half-blood, legitimate or illegitimate.
IV. UNDER FC ART. 38 (FOR REASONS OF PUBLIC
POLICY):
10.Between collateral blood relatives, legitimate
or illegitimate, up to the fourth civil degree.
11.Between step-parents and step-children.
12.Between parents-in-law and children-in-law.
13.Between adopting parent and adopted child.
14.Between the surviving spouse of the
adopting parent and the adopted child.
15.Between the surviving spouse of the
adopted child and the adopter.
16.Between an adopted child and a legitimate
child of the adopter.
17.Between adopted children of the same
adopter.
18.Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
An action for declaration of nullity of marriage
is imprescriptible. (Art. 39)
*For purposes of remarriage, the nullity of a
previous marriage may be invoked solely on the
basis of a final judicial declaration of nullity (JDN)
of the previous marriage. (Art. 40)
In Domingo v CA, the husband opposed the
filing of judicial declaration of nullity (JDN) filed by
the wife Domingo because the marriage is already
void ab initio because of the husband’s previous
marriage. The Supreme Court held that the JDN
can be invoked for other purposes than remarriage.
The wording of Art. 40 about JDN being the sole
basis for remarriage does not mean that JDN can
only be invoked for purposes of remarriage.
Separation of Property, the reason cited in this
case, is also a valid reason for filing for JDN.
In Republic v Molina, 1997 (268 SCRA
198), the Supreme Court held that the actions of
the wife, described by the wife as “highly immature
and habitually quarrelsome who thought himself as
a king to be served,” does not amount to
psychological incapacity. It held that what existed
are mere irreconcilable differences. It also laid
down in this case the guidelines to be followed by
the courts in interpreting Art. 36.
GUIDELINES FOR INTERPRETATION OF
ARTICLE 36 (REPUBLIC V MOLINA):
1. The burden of proof to show the nullity of the
marriage belongs to the plaintiff.
2. The root cause of the psychological incapacity
must be: (a) medically or clinically identified,
(b) alleged in the complaint, (c) sufficiently
proven by the experts, (d) clearly explained in
the decision.
3. The incapacity must be proven to be existing at
“the time of the celebration” of the marriage.
4. Such incapacity must also be shown to be
medically or clinically permanent of incurable.
5. Such illness must be grave enough to bring
about the disability of the party to assume the
essential obligations of marriage.
6. The essential marital obligations mist be those
embraced by Articles 68 up to 71 of the Family
Code as regards the husband and wife as well
as Articles 220, 221, and 225 of the same Code
in regard to parents and their children.
7. Interpretations given by the national Appellate
Matrimonial tribunal of the Catholic Church in
the Philippines, while not controlling or decisive,
should be given great respect by our courts.
8. The trial court must order the prosecuting
attorney or fiscal and the Solicitor General to
appear as counsel for the state. No decision
shall be handed down unless the Solicitor
General issues a certification.
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RULE ON BIGAMOUS MARRIAGE (ART. 41):
GENERAL RULE
Marriage contracted by any person during the
subsistence of a previous marriage is VOID
EXCEPTION
If the first spouse has been absent for four
consecutive years, or two years under
extraordinary circumstances, and the surviving
spouse has a well-founded belief that the spouse is
dead, and there is a judicial declaration of
presumptive death, without prejudice to the effect
of the reappearance of the absent spouse.
Exception to the exception
When both parties in the subsequent marriage
acted in bad faith, the marriage is still void (Art.
44).
In People v Mendoza, Mendoza contracted
three marriages. He contracted the second
marriage during the subsistence of the first
marriage. He contracted the third marriage after
the death of his first wife. He was prosecuted for
bigamy on his third marriage. The Supreme Court
held that he is not guilty for bigamy for his third
marriage, since his prior subsisting marriage has
already been extinguished by the death of his first
wife. It is the second marriage that is bigamous.
EFFECTS OF TERMINATION OF BIGAMOUS
MARRIAGE (FC ART 43):
1. Children – considered legitimate
2. Property Regime – dissolved and liquidated
(party in bad faith shall forfeit his/her share in
favor of the common children or children by a
previous marriage, and in case there are none,
to the innocent spouse)
3. Donation propter nuptias – remains valid,
(but if the donee contracted marriage in bad
faith, donations will be revoked)
4. Insurance benefits – innocent spouse may
revoke designation of guilty party as
beneficiary, even if such designation is
irrevocable
5. Succession Rights – Party in bad faith
disqualified to inherit from innocent spouse,
whether testate or intestate
6. Donations - If both parties of subsequent
marriage acted in bad faith, any donations and
testamentary dispositions made by one party to
the other by reason of marriage will be revoked
(Art. 44)
Voidable Marriages
MARRIAGE MAY BE ANNULLED, WHEN (FC
ART 45):
1. One of the parties is 18 or above but below 21,
and there is no parental consent.
2. Either party was of unsound mind (insanity).
3. The consent of either party was obtained
through fraud (different from mistake in
identity):
a. Through non-disclosure of a previous
conviction of a crime involving moral
turpitude;
b. Through concealment of the wife of the fact
that she was pregnant by another man;
c. Through concealment of a sexually-
transmitted disease, even if not serious or
incurable;
d. Through concealment of drug addiction,
habitual alcoholism or homosexuality or
lesbianism. (Art.46)
4. The consent of either party was obtained
through force, intimidation, or undue
influence.
5. Either party is physically unable to
consummate the marriage (impotence)
(different from sterility).
6. Either party has a serious and incurable
sexually-transmissible disease, even if not
concealed.
In Buccat v Buccat, the Supreme Court
refused to grant annulment filed by the husband
because his wife gave birth to a baby a mere 89
days after their marriage. It held that it is
unbelievable that the wife could have concealed
the fact that she was 6 months pregnant at the
time of the marriage.
However, in Aquino v Delizo, the Supreme
Court granted annulment because the wife
concealed the fact that she was 4 months pregnant
during the time of the marriage. It argued that
since Delizo was “naturally plump,” Aquino could
hardly be expected to know, by mere looking,
whether or not she was pregnant at the time of the
marriage.
Ground For
Annulment
(Art. 45)
Who Can
File
(Art. 47)
Prescription
(Art. 47)
How To
Ratify (Art.
45)
1. Underage
party
1. 5 years after
attaining 21.
Lack of
parental
consent
2. Parent or
guardian
2. Before child
reaches 21.
Free
cohabitation
after
attaining age
of 21
1. Sane
spouse with
no
knowledge of
the other’s
insanity
2. Legal
guardian of
insane party
1. Any time
before the
death of insane
party
Insanity
3. Insane
party
2. During lucid
interval or after
regaining
sanity, and
before death
Free
cohabitation
of insane
party after
coming to
reason
III. Marriage Persons and Family Relations
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Fraud Injured party
(defrauded
party)
Five years after
discovery of
fraud
Free
cohabitation
after having
full
knowledge of
fraud
Force,
intimidation,
undue
influence
Injured party Five years after
disappearance
of force or
intimidation
Free
cohabitation
after the
force has
ceased or
disappeared
Impotence Healthy
party
Five years after
marriage
Deemed
ratified when
action
prescribes
STD Healthy
party
Five years after
marriage
Deemed
ratified when
action
prescribes
DURING PENDENCY OF ACTION:
1. The court shall provide for the support of the
spouses,
2. The custody of the common children, giving
paramount consideration to their moral and
material welfare, their choice of parent with
whom they wish to remain.
3. The court shall also provide for visitation rights
of other parent. (Art. 49)
To prevent collusion between the parties,
fabrication or suppression of evidence, the
prosecuting attorney or fiscal shall appear on
behalf of the State. (Art. 48)
EFFECTS OF DECLARATION OF NULLITY OR
ANNULMENT:
The same as effects of termination of
bigamous marriage (Arts. 43, 44), except in the
status of children.
VOID MARRIAGES VS. VOIDABLE MARRIAGES
(SEMPIO-DIY):
Void Marriage Voidable
Marriage
1. Nature INEXISTENT from the
beginning
VALID until
annulled by court
2. Co-validation CANNOT be
covalidated
CAN be covalidated
by prescription or
free cohabitation
3. Effect on
property
No Community
Property, only Co-
ownership
ACP exists unless
another system is
instituted through
marriage
settlement
4. Legitimacy
of children
General rule: Children
are ILLEGITIMATE
(Art. 165)
Exception: In void
marriages by
reason of
psychological
incapacity (Art. 36)
or non-partition of
properties in a
Children are
LEGITIMATE if
conceived before
decree of
annulment
previous marriage
(Art. 53), children
are considered
LEGITIMATE.
5. How to
impugn
May be attacked
DIRECTLY or
COLLATERALLY, except
for purpose of
remarriage (there
must be JDN)
Can only be
attacked DIRECTLY
(there must be
annulment decree)
6. Effect of
death of parties
May still be impugned
after death of parties
Can no longer be
impugned after
death of parties
Legal Separation
BED AND BOARD SEPARATION MAY BE
DECREED WHEN THERE IS (ART. 55):
1. Repeated violence or grossly abusive
conduct directed against petitioner, a common
child, or a child of the petitioner.
2. Physical violence or moral pressure to compel
petitioner to change religious or political
affiliation.
3. Attempt of respondent to corrupt or induce
petitioner, a common child, or child of
petitioner, to engage in prostitution or
connivance in such corruption or inducement.
4. Final judgment sentencing respondent to
imprisonment of more than 6 years, even if
pardoned (executive pardon, not pardon from
offended party).
5. Drug addiction or habitual alcoholism of
respondent.
» When it existed from the time of
celebration, and concealed from petitioner,
can be a ground for annulment of
marriage. When it occurred only after the
marriage, it is only a ground for legal
separation, whether concealed or not.
6. Lesbianism or homosexuality of respondent.
» Ditto on rules on drug addiction.
7. Contracting by respondent of a subsequent
bigamous marriage, whether in the
Philippines of abroad.
8. Sexual infidelity or perversion.
9. Attempt on the life of petitioner by
respondent.
» There is no need for criminal conviction.
10.Abandonment of petitioner by respondent
without justifiable cause for more than one
year.
In Gandioco v Peñaranda, the Supreme
Court held that in sexual infidelity as a ground for
legal separation, there is no need for prior
conviction for concubinage, because legal
separation only requires a preponderance of
evidence, as opposed to proof beyond reasonable
doubt required in concubinage. In fact, a civil
action for legal separation based on infidelity may
proceed ahead or simultaneously with the criminal
action for concubinage,
GROUNDS FOR DENYING LEGAL SEPARATION
(ART. 56):
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1. Condonation by aggrieved party
2. Consent by aggrieved party to the commission
of the offense
3. Connivance between parties in the commission
of the offense
4. Mutual guilt in ground for legal separation
5. Collusion between parties to obtain decree of
legal separation
6. Prescription of action for legal separation
OTHER GROUNDS FOR DENYING LEGAL SEPARATION
7. Death of either party during pendency of action
(Lapuz-Sy v Eufemio)
8. Reconciliation of parties during pendency of
action (Art. 66 par.1)
RULES ON LEGAL SEPARATION
PROCEEDINGS:
1. Prescription – Action prescribes in five years
from occurrence of cause (Art. 57)
2. Reconciliation period – Action cannot be tried
before six months have elapsed since the filing
of the petition (Art. 58)
3. Attempts on reconciliation – Action cannot
be tried unless the court has attempted to
reconcile the spouses, and determined that
despite such efforts, reconciliation is highly
improbable (Art. 59)
4. Confession – No decree of legal separation
shall be based upon a stipulation of facts or a
confession of judgment (Art. 60, par. 1)
5. Collusion – The court shall assign the
prosecuting attorney or fiscal to make sure that
there is no collusion between the parties, and
that evidence is not fabricated or suppressed
(Art. 60, par. 2)
6. After filing the petition for legal separation, the
spouses are entitled to live separately (Art.
61, par. 1).
7. Administration of Community or Conjugal
Property – If there is no written agreement
between the parties, the court shall designate
one of them or a third person to administer the
ACP or CPG. (Art. 61, par. 2)
8. Custody of children – The court shall give
custody of children to one of them, if there is no
written agreement between the spouses. It
shall also provide for visitation rights of the
other spouse. (Art. 62, cf. Art. 49)
EFFECTS OF DECREE FOR LEGAL SEPARATION
(ART. 63):
1. Spouses can live separately, but cannot
remarry (marriage bonds are not severed).
2. The ACP of CPG shall be dissolved and
liquidated, and the share of the guilty spouse
shall be forfeited in favor the common children,
previous children, or innocent spouse (cf. Art.
42, par. 2).
3. Custody of the minor children shall be awarded
to the innocent spouse
4. Guilty spouse shall be disqualified from
inheriting from innocent spouse by intestate
succession. The provisions in favor of the guilty
party in the will of the innocent spouse shall
also be revoked by operation of law.
OTHER EFFECTS OF LEGAL SEPARATION
5. Donation propter nuptias in favor of the guilty
spouse may be revoked (Art. 64)
6. Innocent spouse may also revoke designation of
guilty spouse as beneficiary in an insurance
policy, even if such stipulations are irrevocable
(Art. 64).
7. Obligation for mutual support ceases, but the
court may order the guilty spouse to support
the innocent spouse. (Art. 198)
8. The wife shall continue to use the surname of
the husband even after the decree for legal
separation.
AGUILING-PANGALANGAN: The option to revoke of
the designation of guilty spouse as beneficiary in
an insurance policy should prevail, notwithstanding
contrary provisions in the Insurance Code.
RULE ON RECONCILIATION:
Should the spouses reconcile, they should file
a corresponding joint manifestation under oath of
such reconciliation (Art. 65).
PROF. BALANE: It is not the reconciliation per se
but the filing of the required manifestation that
produces the effects enumerated in Art. 66.
EFFECTS OF RECONCILIATION (ART. 66):
1. Proceedings for legal separation shall be
terminated at whatever stage.
2. If there is a final decree of legal separation, it
shall be set aside.
3. The separation of property and forfeiture of
share of guilty spouse shall subsist, unless the
spouses agree to revive their former property
regime or to institute another property regime
(cf. Art. 67).
OTHER EFFECTS OF RECONCILIATION
4. Joint custody of children is restored.
5. The right to intestate succession by guilty
spouse from innocent spouse is restored.
6. The right to testamentary succession depends
on the will of the innocent spouse.
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IV. RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE
Obligations of Spouses
1. Live together (Art. 68)
2. Observe mutual love, respect, and fidelity (Art.
68)
3. Render mutual help and support (Art. 68)
4. Fix the family domicile. In case of
disagreement, the court shall decide. (Art. 69)
5. Jointly support the family. (Art. 70)
6. Manage the household. (Art. 71)
Rights of Spouses
1. In case the other spouse neglects his or her
duties or commit acts which tend to bring
danger, dishonor or injury to the family, the
aggrieved party may apply the court for
relief. (Art. 72)
2. Either spouse may exercise any legitimate
profession, without need for consent of the
other. The other spouse may only object on
valid, serious, and moral grounds. (Art. 73)
In case of disagreement, the Court shall decide
whether (1) the objection is proper, and (2) benefit
has accrued to the family before the objection.
Use of Surname
A. MARRIED WOMEN:
A married woman may use:
1. Her maiden first name and surname and add
her husband's surname, or
2. Her maiden first name and her husband's
surname or
3. Her husband's full name, but prefixing a word
indicating that she is his wife, such as “Mrs.”
(Art. 370, CC)
The wife has the option to choose which
among these names she should use. Should she
decide to keep her maiden name, the use of the
word “may” in the provision indicates that she may
do so.. (A US Case allowed a woman to keep her
maiden name especially because many of her
professional relations already know her by that
name.)
In Yasin v Shari’a District Court, the
Supreme Court, by way of obiter dictum, said that
the woman only has an option and not a duty to
use the surname of her husband, as provided for in
Art. 370, CC. It also said that when her husband
dies, the woman can revert to her old name
without need for judicial declaration.
B. WIDOWS:
A widow may use the deceased husband’s
surname as though he were still living. (Art. 373,
CC)
C. MISTRESSES:
In Legamia v IAC, the Supreme Court
allowed the mistress to use her live-in partner’s
name, since everyone already knew that she was a
mistress, so as to avoid confusion.
V. Property Relations Between Spouses Persons and Family Relations
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V. PROPERTY RELATIONS BETWEEN
SPOUSES
ORDER TO BE FOLLOWED (ARTS. 74, 75)
1. Marriage settlements before marriage –
spouses can agree to whatever regime they
want, be it ACP, CPG, or complete separation.
2. Provisions of the Civil Code – If there are no
marriage settlements, the Absolute Community
of Property will be followed
3. Local Customs
The rule that ACP is the default mode of
property relations absent any marriage settlement
applies to all Filipinos, regardless of the place of
the marriage and their residence – Art. 80
REQUIREMENTS FOR MARRIAGE
SETTLEMENTS (ART. 77)
1. Must be in writing (public or private)
2. Signed by the parties
3. Executed before the celebration of the
marriage
4. If party needs parental consent,
parent/guardian must be a party to the
settlement
5. If party is under civil interdiction or other
disability (not including insanity), court
appointed guardian must be a party
6. Must be registered in local civil registry – to
affect third persons (If not registered, will not
prejudice third persons, ACP will apply)
GENERAL RULE:
All modifications to the marriage settlement
must be made before the marriage is celebrated.
EXCEPTIONS:
1. Legal Separation (Art. 63 (2))
» In such an instance, the property regime is
dissolved.
2. Revival of the former property regime upon
reconciliation if the spouses agree (Art. 66 (2))
3. A spouse may petition the court for:
a. Receivership
b. Judicial separation of property, or
c. The authority to be the sole administrator of
the conjugal partnership
▪ If the other spouse abandons the other
without just cause or fails to comply
with his or her obligations to the family.
(Art. 128)
4. Judicial Dissolution (Arts. 135 and 136)
A. Donations By Reason Of Marriage
DEFINITION
Donations which are made before the
celebration of the marriage, in consideration of the
same, and in favor of one or both of the future
spouses. (Art. 82)
REQUISITES:
1. Made before the celebration of marriage
2. Made in consideration of the marriage
3. In favor of one or both spouses
DONATIONS EXCLUDED:
1. ordinary wedding gifts given after the
celebration of the marriage
2. donations in favor of future spouses made
before marriage but not in consideration thereof
3. donations made I n favor of persons other than
the spouses even if founded on the intended
marriage
WHO MAY DONATE?
1. spouses to each other
2. parents of one or both spouses
3. 3
rd
persons to either or both spouses
DISTINGUISHED FROM ORDINARY
DONATIONS:
Donations Propter
Nuptias
Ordinary Donations
Does not require
express acceptance
Express acceptance necessary
May be made by
minors (Art. 78)
Cannot be made by minors
May include future
property
Cannot include future property
If present property is
donated and
property is not
absolute community,
limited to 1/5
No limit to donation of present
property provided legitimes
are not impaired
Grounds for
revocation - In Art.
86
Grounds for revocation - in
donation laws
RULES
BEFORE MARRIAGE
General Rule
Future spouses cannot donate to each other
more than 1/5 of their present property (excess
shall be considered void) (Art. 84)
Exception
If they are governed by ACP.
DURING MARRIAGE
General Rule
Spouses cannot donate to each other, directly
or indirectly (donations made by spouses to each
other during the marriage are void) (Art. 87)
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Exception
Moderate gifts on the occasion of any family
rejoicing.
In Matabuena v Cervantes, the Supreme
Court ruled that Art. 87 is applicable even to
common-law spouses.
REASONS FOR REVOCATION OF DONATION
PROPTER NUPTIAS (ART. 86):
1. If the marriage is not celebrated or judicially
declared void ab initio, except donations made
in settlements.
2. When the marriage takes place without the
consent of the parents or guardians, as
required by law.
3. When the marriage is annulled, and the
donee acted in bad faith.
4. Upon legal separation, if the donee is the
guilty spouse.
5. If there is a resolutory condition, and it is not
complied with.
6. When donee has committed an act of
ingratitude, such as:
a. An offense against person or property of
donor, or his wife or children under parental
authority
b. An imputation to the donor of any criminal
offense, or any act involving moral
turpitude, even if proven, unless the crime is
committed against the donee, his wife or
children under his authority.
c. Refusing to support the donor, if he/she is
legally required to do so.
The donee may choose to waive his/her right
to revoke the donation, in which case the donee
will keep the property.
The action for filing for revocation of donation
prescribes.
B. Absolute Community Of Property
WHEN IT COMMENCES:
At the precise moment of the celebration of
the marriage (Art. 88), not just at the day of the
celebration. However, if the marriage is celebrated
before the Family Code took effect (1988), the
default property regime is the Conjugal Partnership
of Gains (CPG).
WAIVER OF RIGHTS:
GENERAL RULE
NOT ALLOWED (Art. 89)
EXCEPTIONS
1. with the marriage subsisting, in case of a
judicial separation of property, which includes
dissolution of absolute community or conjugal
partnership as a result of legal separation.
2. in case the marriage is dissolved (by death of
one of the spouses) or annulled.
WHAT IT CONSISTS:
All the property owned by the spouses at the
time of the celebration of the marriage or acquired
thereafter. (Art. 91)
Under the ACP, spouses cannot exclude
specific properties from the regime.
WHAT IS EXCLUDED (RESERVED PROPERTY):
1. Properties acquired by a gratuitous title,
i.e. donation, inheritance by testate and
intestate succession, including the fruits of such
properties
» Exception: When it was expressly
provided by the donor or testator that the
property shall form part of the ACP);
2. Properties for personal use, e.g. clothes,
toilet articles, books
» Exception: Pieces of jewelry - they form
part of the ACP
3. Properties acquired before the marriage,
for those with legitimate descendants with a
former marriage (to protect rights of children by
a former marriage).
PRESUMPTION
All properties acquired during the marriage
form part of the ACP, unless it be proven that they
are excluded. (Art. 93)
CHARGES UPON THE ACP (ART. 94):
1. Support
a. Support of illegitimate children of either
spouse governed by (9)
b. Support shall be given to spouses even if
they are not living together, except when a
spouse leaves the conjugal home without
just cause
c. Support shall be given to the spouses during
pendency of action for legal separation (Art
61) or for annulment of marriage (Art. 49)
2. Debts and Obligations Contracted During
Marriage
a. Either by both spouses or one of them, with
the consent of the other.
b. In (2) and (3), creditors need not prove that
the debts benefited the family.
3. Debts Contracted by one Spouse Without
Consent of the other
a. ACP liable only to the extent that the debt
benefited the family.
b. Reason: spouses are joint administrators of
community property, and one should not act
without the consent of the other.
4. Tax, Liens, Repairs on Community Property
a. Taxes on property itself and its fruits,
including any surcharges on real estate
taxes.
b. “Minor repairs” are those for mere
preservation of property or those caused by
ordinary wear and tear; “Major repairs”
include those caused by extraordinary
events such as storms , floods, etc.
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5. Taxes and Expenses for Mere preservation
of Separate properties
a. Applies only to separate properties by either
spouse being used by the family, not those
that do not benefit the family.
b. Expenses limited to minor repairs.
6. Expenses for professional, Vocational, or
Self-Improvement Course of Spouses
a. Intention of the law is to encourage the
spouses to improve themselves for the
benefit not just of their family but of the
whole nation as well.
7. Ante-nuptial Debts that Benefited the
Family
a. If the ante-nuptial debt did not benefit the
family, applicable rule is (9).
b. e.g. loans incurred by husband prior to
marriage to purchase conjugal home
8. Donations by Spouses to Common
Legitimate Children
a. Beneficiaries should be common legitimate
children of spouses.
b. Donation should be made by both spouses;
otherwise, the ACP is not liable.
9. Ante-Nuptial Debts not under (7), Support
of Illegitimate Children, Liabilities of Either
Spouse Arising from Quasi-Delict
a. If the debtor-spouse has no exclusive
property or his or her property is
insufficient.
b. Under Art. 205 of CC, guilty spouse has no
obligation to reimburse to the ACP
indemnities paid by ACO on account of a
crime or quasi-delict committed by him or
her. Under the Family Code, however, the
ACP is considered merely to have advanced
these indemnities; they shall be deducted
from the share of the guilty spouse at the
time of the liquidation of the absolute
community.
10.Expenses of Litigation between Spouses
a. Expenses of these litigations are actions for
support by one spouse against the other or
for support and custody of children, legal
separation, and annulment of marriage.
b. If the spouse who files the case loses, the
ACP is not liable for the expenses incurred
during litigation.
ADMINISTRATION OF PROPERTY:
Belongs to both spouses jointly. If they
disagree the husband’s decision prevails. However,
the wife has five years from the date of the
decision to go to court for recourse. Otherwise, it is
presumed that she agreed with the husband’s
decision. (Art. 96)
EXCEPTION
When the other spouse is incapacitated, or
unable to participate in the administration (e.g.
when abroad).
DISPOSITION OF PROPERTY:
Either spouse may, through a will, dispose
his/her interest in the community property. (Art.
97) However, the will should refer only to his/her
own share in the community property.
DONATION OF PROPERTY:
Donation of one spouse without the consent of
the other is not allowed (Art. 98, following logic of
Art. 96).
EXCEPTIONS
1. Moderate donations to charity due to family
rejoicing or distress;
2. Moderate gifts by each spouse to the other due
to family rejoicing.
Note: What’s moderate depends on the socio-
economic status of the family
ACP TERMINATES UPON (ART. 99):
1. Death of either spouse – follow rules in Art.
103
2. Legal Separation – follow rules in Arts. 63 and
64
3. Annulment or judicial declaration of nullity
– follow rules in Arts. 50 to 52
4. Judicial separation of property during
marriage – follow rules in Arts. 134 to 138
RULES ON DE FACTO SEPARATION (ART.
100):
GENERAL RULE
De facto separation does not affect the ACP.
EXCEPTIONS
1. Spouse who leaves the conjugal home without
just cause shall not be entitled to support.
He/She, however, is still required to support the
other spouse and the family.
2. If consent is necessary for transaction but is
withheld or otherwise unobtainable,
authorization may be obtained from the court.
3. Support for family will be taken from the ACP.
4. If ACP is insufficient, spouses shall be solidarily
liable.
5. If it is necessary to administer or encumber
separate property of spouse who left, spouse
present may ask for judicial authority to do this.
6. If ACP is not enough and one spouse has no
separate property, spouse who has property is
liable for support, according to provisions on
support.
IN CASE OF ABANDONMENT (ART. 101):
Present spouse may petition the court for:
a. receivership;
b. judicial separation of property; or
c. authority to be the sole administrator of the
absolute community, subject to
precautionary conditions that the court may
impose.
Spouse is prima facie considered to have
abandoned the other spouse and the family if:
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1. he/she has left for a period of three months,
2. he/she has failed to inform his/her whereabouts
for a period of three months.
PROCESS OF LIQUIDATION OF ACP (ART.
102):
1. Inventory of assets of ACP and of spouses,
with market values.
2. Obligations are paid with community
property, and separate obligations not charged
to ACP paid by respective assets of spouses.
3. Balance, or net remainder is divided equally
between the spouses, irrespective of how much
each brought into the community.
4. If obligations exceed the assets of the ACP,
nothing is divided. Creditors can go after the
separate properties of the spouses, which are
solidarily liable for the deficiency.
5. If personal obligations of a spouse exceed
his/her separate property, creditor can go after
the share of the spouse on the net remainder of
the ACP, without prejudice to the provisions of
law on forfeitures and delivery of
presumptive legitimes.
6. After covering all community obligations and
obligations of spouses, balance of separate
properties shall be delivered to respective
spouses or their heirs, and they will also
divide into two equal shares whatever is left of
the community assets, without prejudice to the
provisions of law on forfeitures and delivery of
presumptive legitimes.
RULES IN CASE OF TERMINATION OF
MARRIAGE BY DEATH OF ONE OF THE
SPOUSES (ART. 103):
1. The community property shall be liquidated
in the same proceeding for the settlement of
the estate of the deceased spouse.
2. If no such judicial settlement proceeding is
instituted, surviving spouse shall liquidate
the community property either judicially or
extra-judicially within one year from the death
of the deceased spouse.
PROCEDURE FOR LIQUIDATION OF
COMMUNITY PROPERTIES OF TWO
MARRIAGES (ART. 104):
1. Determine the capital, fruits, and income of
each community upon such proof as may be
considered according to the rules of evidence.
2. In case of doubt as to which community the
existing properties belong, they shall be divided
between two communities in proportion to the
capital and duration of each.
C. Conjugal Partnership Of Gains
WHERE IT APPLIES:
1. For marriages before the implementation of the
Family Code.
2. For marriages after the Family Code, if agreed
to by the parties through a marriage
settlement.
HUSBAND AND WIFE PLACE IN COMMON
FUND:
1. The proceeds, products, fruits, and income of
their separate properties;
2. Everything acquired by them within marriage
through their own efforts;
3. Everything acquired by them by chance
Each spouse has his/her own property and
his/her own debts.
Upon dissolution of marriage or partnership,
the net gains or benefits from the partnership shall
be divided equally between the spouses, unless
they have agreed on another manner of division in
their marriage settlement.
In De Ansaldo v Sheriff of Manila, the
Supreme Court ruled that the spouses are not co-
owners of the conjugal properties during the
marriage and cannot alienate the supposed ½
interest of each in the said properties. The interest
of the spouses in the conjugal properties is only
inchoate or a mere expectancy and does not ripen
into title until it appears after the dissolution and
liquidation of the partnership that there are net
assets
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CPG VS. ACP:
CPG ACP
1. Property acquired
before marriage.
Each spouse retains his/her property; only
fruits part of conjugal property
Properties become part of community
property
2. Property acquired
during marriage
Part of conjugal property Becomes conjugal property.
3. Upon dissolution of
marriage
Separate properties are returned; net
profits divided equally between spouses or
heirs.
Net remainder of ACP divided equally
between spouses or heirs.
4. Basis Capital and properties of spouses kept
separate and distinct from benefits;
insurmountable obstacle to presumption
of solidarity
Mutual trust and confidence between
spouses; fosters oneness of spouses
5. Liquidation Exclusive properties will have to be
identified and returned, and sometimes,
identification is difficult.
Easier to liquidate because net remainder
of community properties are simply
divided between spouses or heirs
CPG VS. ORDINARY PARTNERSHIP:
CPG Ordinary partnership
1. Existence Exists with the mere fact of marriage Comes into existence according to
agreement between parties
2. Purpose, duration,
and rules
Predetermined by legislator, the law fixing
its conditions.
Determined by will of partners.
3. Profits Divided equally between spouses,
irrespective of the amount of capital that
they bring into marriage
Depends upon respective capitals of
partners, or upon their agreement
4. Equality No equality between spouses in control,
management, and disposition, because the
law grants the husband some
predominance.
General rule is that all partners have equal
rights in administration, management, and
control of partnership.
5. Personality No juridical personality Considered a juridical person
6. Commencement At precise moment of celebration of
marriage
At the time agreed upon by partners
7. Regulation By law By agreement of parties; subsidiarily, by
law
8. Purpose Not particularly for profit For profit
9. Causes for
dissolution
Death, legal separation, annulment, JDN,
judicial separation of property
Death, insolvency, civil interdiction,
termination of term, express will of any
partner, etc. (Arts 1830-1931)
10. Effect of death of a
partner
Dissolution of partnership Surviving partners may choose to continue
partnership
11. Division of
properties
Only upon dissolution There can be division of profits without
dissolution
12. Management Joint; in case of disagreement, the
husband’s decision shall prevail, wife has
recourse to courts
Same as individual partners, except when
one or more partners designated as
managers.
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EXCLUSIVE PROPERTIES OF THE SPOUSES:
PROPERTY BY DIRECT ACQUISITION, OR PROPERTY
THAT IS ORIGINALLY EXCLUSIVE
1. Property brought into marriage by each spouse
as his/her own – Art. 109(1)
2. Property acquired by either spouse during the
marriage by gratuitous title – Art 109 (2)
PROPERTY BY SUBSTITUTION
3. Property acquired by right of redemption, by
barter, or by exchange with property belonging
to either spouse – Art. 109 (3)
4. Property purchased with exclusive money of
either spouse- Art. 109 (4)
OTHER SEPARATE PROPERTY
5. Collection of credits belonging to one spouse
exclusively
6. Sale of separate property of a spouse
7. Indemnity paid in cash of expropriation of
separate property or under an insurance policy
covering separate property.
8. Possession does not affect ownership of
separate property.
Spouses retain ownership, possession,
administration, and enjoyment of their exclusive
properties (Art. 110).
Either spouse may transfer administration of
his/her exclusive property to the other, provided
that it is:
1. In a public instrument
2. Recorded in the registry of property of the place
where the property is located.
Rights to mortgage, encumber, alienate, or
dispose of his/her property belong to the owner-
spouse and are consequences of his/her right of
ownership. (Art. 111)
Owner-spouse can also appear alone in court
to litigate with respect to his/her exclusive
property. (Art. 111)
Alienation of exclusive property administered
by the other automatically terminates and the
administration over such property and the
proceeds of the alienation shall be turned over to
the owner-spouse. (Art. 112)
PRESUMPTION
All property acquired during the marriage,
whether the acquisition appears to have been
made, contracted or registered in the name of one
or both spouses, is presumed to be conjugal unless
the contrary is proved. (Art. 116)
PROPERTIES THAT COMPOSE CPG:
1. PROPERTIES ACQUIRED BY ONEROUS TITLE
DURING THE MARRIAGE AT EXPENSE OF COMMON
FUND (ART. 117 (1))
The test is the origin of the money invested in
the purchase; if it came from conjugal funds, the
property acquired is conjugal.
2. PROPERTIES ACQUIRED THROUGH THE LABOR,
INDUSTRY, WORK, PROFESSION OF EITHER OR
BOTH SPOUSES (ART. 117 (2))
Include all income from work, labor or
industry, of either or both spouses, whether in the
form of wages, salaries, honoraria, practice of a
profession, income from business even if the
capital comes from the exclusive property of one of
the spouses, commissions, bonuses, etc.
3. FRUITS FROM COMMON PROPERTY, AND NET
FRUITS OF EXCLUSIVE PROPERTY OF EACH SPOUSE
(ART. 117 (3))
All kinds of fruits from conjugal properties as
well as the exclusive properties of the spouses,
whether natural, industrial, or civil, like young of
animals, produce of land, earnings from business,
etc.
But only net income or fruits of exclusive
property of the spouses become conjugal. The
expenses for production, administration, and
preservation should be taken from the gross fruits,
and the owner-spouse is entitled to retain the
gross income until these expenses are paid
If fruits were pending on separate, property of
a spouse at.the time of the marriage, the harvest
collected during the marriages is conjugal, and the
conjugal partnership is not bound to pay the
expenses, of cultivation to the spouse who owns
the property from which the fruits were harvested,
because the right of the conjugal partnership is a
real right of usufruct and therefore, the law on
usufruct should apply
4. SHARE OF EITHER SPOUSE IN HIDDEN TREASURE,
WHETHER AS FINDER OR OWNER OF PROPERTY
WHERE TREASURE IS FOUND (ART. 117(4))
Hidden treasure found by -the. spouses on the
property of either of them is conjugal.
If the owner of the property where the
treasure is found is one of the spouses and the
treasure is found by a stranger, the one-half share
of the owner of the property goes to, the conjugal
partnership.
If the property where the treasure is found
belongs to -a stranger and the treasure is found by
one of the spouses, the one-half share of the finder
is conjugal.
5. PROPERTIES ACQUIRED THROUGH OCCUPATION
SUCH AS FISHING OR HUNTING (ART. 117 (5))
These include wild animals caught by the
husband in the forest while hunting, and all kinds
of marine life caught while fishing.
The theory is that animals in the forest and
fishes in the ocean are res nullius and do not
belong to anyone, and if one of the spouses
catches any of them, the benefit is not his alone
but for the conjugal partnership.
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6. LIVESTOCK EXISTING AT DISSOLUTION OF
PARTNERSHIP IN EXCESS OF WHAT IS BROUGHT BY
EITHER SPOUSE TO THE MARRIAGE (ART. 117 (6))
While Art. 159 of the Civil Code classifies as
conjugal all animals existing at the dissolution of
the partnership "exceeding" that brought to the
marriage by each spouse, this particular provision
of the Family Code considers, as conjugal all
"livestock existing at the dissolution of the
partnership in excess of each kind brought to the
marriage by either spouse."
7. PROPERTIES ACQUIRED BY CHANCE, SUCH AS
WINNINGS FROM GAMBLING OR BETTING (ART. 117
(7))
If a winning lottery or sweepstakes ticket is
bought by a spouse with his or her own money or
the ticket was given gratuitously by a friend, the
prize will be separate property of the spouse who
owns the ticket. If, however, the ticket is
purchased with conjugal funds, the prize will be
conjugal.
Presumption
A lottery or sweepstakes ticket acquired
during the marriage was bought with conjugal
funds, and the prize is therefore, conjugal.
SPECIAL CASES NOT INCLUDED IN ART. 117
 Land obtained by either spouse or by both
through a loan is conjugal, and so is the
loan, and the spouses will be solidarily liable
for said loan with their separate properties if
later, the community property is not enough
to pay for the same.
» Where property' belonging to one spouse
is converted into another kind totally
different in nature from its original form
(e.g.; when, a nipa 'swamp is converted
into a fishpond), during the marriage the
converted property is conjugal in the
absence of proof that the expenses of
conversion were exclusively for the
account of the original owner-spouse. But
said owner-spouse is entitled to
reimbursement of the value of the original
property from the conjugal partnership
 Money received under the Social Security
Act is not conjugal, although-the employee-
spouse contributes to the SSS with his
salaries, but belongs to the designated
beneficiary under the Social Security Law
 Intellectual property, like copyright or
patent, should, according to Tolentino, citing
Planiol and Ripert, be considered separate
property of the spouse who produces or
invents or discovers it, this property being of
a special type, almost a part of one's person
or taken from his personality and the physical
or external manifestation of his intellect or
genius, that it is not simply a product of one's
work or industry but should be considered as
pertaining exclusively to its creator
 Business property like trade-marks, trade
names, service marks, business goodwill, and
similar kinds of property are, however, merely
accessories to some commercial
establishment or product, so that if such
establishment or product is separate property
of one spouse, then the business property is
separate property, the same being an
accessory that follows the principal; but all
benefits or earnings derived from these
different kinds of property during the
marriage should belong to the conjugal
property (Tolentino, id., citing the same
authority).
PROPERTIES PURCHASED BY INSTALLMENT
 If the property was bought on installment by a
spouse before the marriage and the
contract of sale is such that ownership was
already vested on the buyer-spouse at the
time of the execution of the contract, the
property is EXCLUSIVE PROPERTY of said
buyer-spouse, even if installments on the
price up to full payment came from the
conjugal funds. The amounts paid by the
conjugal partnership shall, however, be
reimbursed to it by the owner-spouse at the
time of the liquidation of the partnership.
 If, however, the contract of sale on
installment is such that ownership did not vest
on the buyer at the time of the execution of
the sale and ownership vested only after
the whole price was paid during the
marriage and out of conjugal funds, the
PROPERTY IS CONJUGAL but the
partnership shall reimburse the buyer-spouse
the installments paid by him or her before the
marriage.
In Lorenzo v. Nicolas, it was held that
property bought on installment by either spouse
before the marriage and was fully paid only after
the marriage but ownership had vested on the
buyer spouse before the marriage, is separate
property of the buyer-spouse, although the
installments paid by the conjugal partnership
during the marriage must be reimbursed to it upon
liquidation.
CHARGES UPON CPG (ART. 121) [CF.
CHARGES TO ACP]:
1. The support of the spouse, their common
children, and the legitimate children of either
spouse; however, the support of illegitimate
children shall be governed by the provisions of
this Code on Support;
2. All debts and obligations contracted during the
marriage by the designated administrator-
spouse for the benefit of the conjugal
partnership of gains, or by both spouses or by
one of them with the consent of the other;
3. Debts and obligations contracted by either
spouse without the consent of the other to the
extent that the family may have benefited;
4. All taxes, liens, charges, and expenses,
including major or minor repairs upon the
conjugal partnership property;
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5. All taxes and expenses for mere preservation
made during the marriage upon the separate
property of either spouse;
6. Expenses to enable either spouse to commence
or complete a professional, vocational, or other
activity for self-improvement;
7. Ante-nuptial debts of either spouse insofar as
they have redounded to the benefit of the
family;
8. The value of what is donated or promised by
both spouses in favor of their common
legitimate children for the exclusive purpose of
commencing or completing a professional or
vocational course or other activity for self-
improvement; and
9. Expenses of litigation between the spouses
unless the suit is found to groundless.
If the conjugal partnership is insufficient to
cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties.
ADMINISTRATION OF THE CPG:
Husband and wife are joint administrators of
the family properties and exercise joint authority
over the persons and properties of their children
Same provisions as those of Art. 96 (admin.
of the ACP)
WHEN ONE SPOUSE IS INCAPACITATED OR UNABLE
TO PARTICIPATE IN ADMINISTRATION
The other spouse may assume sole powers of
administration in the event that one spouse is
incapacitated or otherwise unable to participate in
the administration of the CPG.
However, these sole powers of administration
do not include disposition or encumbrance (as
these are acts of ownership or dominion)
To be able to dispose or encumber properties
of the CPG, either of the following is necessary:
a. authority of the court; or
b. written consent of the other spouse.
In the absence of said judicial authority or
written consent, the disposition or encumbrance
shall be void.
ENJOYMENT OF THE CPG:
1. The enjoyment of the CPG shall belong to both
spouses jointly.
2. Either spouse may enjoy or use the properties
of the CPG like a beach house or a family car as
long as the use is in accordance with the
purpose of the thing without injuring it and the
other spouse is not prevented from likewise
using it.
DISPOSITION OR ENCUMBRANCE OF THE
CPG:
DISPOSITION OF PROPERTY
Alienation of said property in any form, such
as sale, donation, or assignment.
ENCUMBRANCE OF PROPERTY
Includes a real estate mortgage of immovable
property or a chattel mortgage or pledge of
personal property of the CPG.
Disposition or encumbrance of conjugal
property requires the consent or approval by both
spouses.
Mere awareness of a transaction is NOT
consent
If the consent cannot be obtained or unjustly
withheld, then the other spouse may bring the
matter to court and secure judicial authority for
said disposition or encumbrance.
If there is no consent of the other spouse nor
judicial authority, the disposition or encumbrance
shall be void.
DISPOSITION BY WILL
Same rule as Art. 97: Either spouse may
dispose by will of his interest in the ACP. (but there
is no provision specifically for CPG).
DISSOLUTION OF CPG (ART. 128):
1. Prepare inventory, listing separately all the
properties of the conjugal partnership and the
exclusive properties of each spouse.
2. Amounts advanced by the conjugal
partnership in payment of personal debts and
obligations of either spouse shall be credited
to the conjugal partnership.
3. Each spouse shall be reimbursed for the use
of his or her exclusive funds in the acquisition
of property or for the value of his or her
exclusive property, the ownership of which has
been vested by law in the conjugal partnership.
4. The debts and obligations of the conjugal
partnership shall be paid out of the conjugal
assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the
unpaid balance with their separate properties,
in accordance with the provisions of paragraph
2 of Article 121.
5. Whatever remains of the exclusive properties
of the spouses shall thereafter be delivered to
each of them.
6. Unless the owner had been indemnified from
whatever source, the loss or deterioration of
movables used for the benefit of the family,
belonging to either spouses, even due to
fortuitous event, shall be paid to said spouse
from the conjugal funds, if any.
7. The net remainder of the conjugal partnership
properties, or the profits, which shall be
divided equally between husband and wife,
unless a different proportion or division was
agreed upon in the marriage settlements or
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unless there has been a voluntary waiver or
forfeiture of such share as provided in this
Code.
EFFECTS OF DISSOLUTION
Whatever is acquired by the surviving spouse
after the termination of the CPG forms part of his
or her exclusive property.
An obligation incurred by a surviving spouse
after the death of the other spouse, can no longer
be charged against the property of the CPG which
has been terminated by such death.
ALIENATION BY SURVIVORS
If it becomes necessary to pay outstanding
obligations of the CPG after the death of one of the
spouses, a sale may be made of a portion of the
CPG, provided the sale is made in the manner and
with the formalities established by the Rules of
Court for the sale of property of deceased persons.
Such disposition cannot include the half that
may be adjudicated to heirs of the deceased
spouse. This rule applies not only to sale, but also
to mortgages.
RIGHTS OF THIRD PERSONS
Dissolution of the conjugal property must be
recorded in the registry of property in order to
affect third persons dealing with registered
property.
When third persons are in connivance with the
surviving husband or knowingly lend their aid,
directly or indirectly to the commission of
fraudulent acts by the husband, the court will see
to it that they do not profit by their misconduct,
and the fraud to which they are parties will vitiate
and annul all their transactions.
The purchaser in good faith must be held to
take a good and valid title which cannot be set
aside thereafter upon proof that in making the
sale, or in the use made of the proceeds, the
husband acted in fraud of the rights of the heirs.
The heirs must seek their remedy against the
husband.
METHODS OF LIQUIDATION
1. by extra-judicial partition between the husband
and wife or their heirs
2. by an ordinary action for partition
3. by testate and intestate proceedings
D. Separation of Properties During
Marriage
When there is no stipulation between the
parties, Separation of Properties takes place only
upon judicial order. (Art. 134).
Judicial separation of properties may be
voluntary or because of a sufficient cause.
SUFFICIENT CAUSES FOR JUDICIAL
SEPARATION OF PROPERTIES (ART. 135):
1. Spouse of the petitioner has been sentenced
to a penalty which carries with it civil
interdiction.
2. Spouse of the petitioner has been judicially
declared an absentee.
3. Loss of parental authority of the spouse of
petitioner has been decreed by the court.
4. Spouse of the petitioner has abandoned the
latter or failed to comply with his or her
obligations to the family.
5. The spouse granted the power of
administration in the marriage settlements
has abused that power.
6. At the time of the petition, the spouses have
been separated in fact for at least one year
and reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2)
and (3), the presentation of the final judgment
against the guilty or absent spouse shall be enough
basis for the grant of the decree of judicial
separation of property.
In cases provided for in numbers (4), (5), and
(6), a preponderance of evidence is required to
secure a judicial separation of property.
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AFTER JUDICIAL SEPARATION OF PROPERTY
ACP or CPG will be liquidated, according to the
provisions of the Family Code. (Art. 137)
REVIVAL OF PROPERTY REGIME IN THE FF.
INSTANCES (ART. 141):
1. When the civil interdiction terminates.
2. When the absentee spouse reappears.
3. When the court, being satisfied that the spouse
granted the power of administration in the
marriage settlements will not again abuse
that power, authorizes the resumption of said
administration.
4. When the spouse who has left the conjugal
home without a decree of legal separation
resumes common life with the other;
5. When parental authority is judicially
restored to the spouse previously deprived
thereof;
6. When the spouses who have separated in fact
for at least one year, reconcile and resume
common life.
7. When after voluntary dissolution of the absolute
community of property or conjugal partnership
has been judicially decreed upon the joint
petition of the spouses, they agree to the
revival of the former property regime. No
voluntary separation of property may thereafter
be granted.
TRANSFER OF ADMINISTRATION TO THE
OTHER SPOUSE WHEN (ART. 142):
1. When one spouse becomes the guardian of the
other.
2. When one spouse is judicially declared an
absentee.
3. When one spouse is sentenced to a penalty
which carries with it civil interdiction.
4. When one spouse becomes a fugitive from
justice or is in hiding as an accused in a
criminal case.
If the other spouse is not qualified by reason
of incompetence, conflict of interest, or any other
just cause, the court shall appoint a suitable person
to be the administrator.

E. Regime of Separation of Property
GOVERNED BY:
Marriage settlements; provisions of the Code
are only suppletory. (Art. 143)
KINDS OF SEPARATION (ART. 144):
1. Present Property, Future Property, Both
2. Total separation, Partial separation (remaining
property is considered part of the absolute
community)
ADMINISTRATION:
Each spouse shall own, dispose, possess,
administer, and enjoy his/her own estate, without
need for consent of the other. (Art. 145)
FAMILY EXPENSES:
Each spouse shall contribute to the family
expenses, in proportion to their income. In case of
insufficiency, the market value of their separate
properties. (Art. 146)
Liability of spouses to the creditors of the
family shall be SOLIDARY. (Art. 146, par. 2)
F. Unions Without Marriage
UNIONS GOVERNED BY ARTICLE 147:
1. When a man and a woman capacitated to marry
each other live exclusively with each other as
husband and wife without the benefit of
marriage
2. A man and a woman living together under a
void marriage (inapplicable to bigamous
marriage)
REQUISITES
1. The man and the woman must have capacity to
marry each other.
2. The man and the woman cohabit.
3. The cohabitation is exclusive.
4. The man and the woman are not married to
each other or are married to each other but the
marriage is void.
CO-OWNERSHIP IN
1. Wages and salaries earned by either spouse
during the cohabitation.
2. Properties acquired by them through their joint
work or industry during the cohabitation.
 Presumption – properties acquired during
the cohabitation are presumed to have been
acquired through their joint efforts, work or
industry
CPG Absolute Community
What gets
divided
between the
spouses?
Only the net
profits
Entire common mass of
property which remains
after the payments of
the debts and
obligations of the
absolute community
Why? Spouses
retain their
separate
properties
which do not
become part
of the
conjugal
properties
All the separate
properties of the
spouses before the
marriage become part
of the community
property.
- each spouse loses
ownership of whatever
properties he/she
brought to the
marriage.
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Party who did not participate in the acquisition
by the other party of any property shall be deemed
to have contributed jointly in the acquisition
thereof if the forger’s efforts consisted in the care
and maintenance of the family and of the
household
If the partner did not acquire the property
directly, that partner's efforts must consist of the
care and maintenance of the family and of the
household in order for such party to own 1/2 of the
acquired property.
In Maxey vs. CA, the Supreme Court said
that the co-ownership arises even if the common-
law wife does not work is not gainfully employed.
The common-law wife is still a co-owner since she
ran the household and held the family purse even if
she did not contribute thereto
RULES
Parties cannot encumber or dispose by acts
inter vivos their share in the property acquired
during their cohabitation until termination
In case of void marriage – if only one party is
in good faith, the share of the spouse who is in bad
faith shall be forfeited
1. In favor of their common children
2. In case of default of or waiver by any or all of
the common children or their descendants each
vacant share shall belong to the respective
surviving descendants
3. In the absence of such descendants, such share
belongs to the innocent party
UNIONS GOVERNED BY ARTICLE 148
People incapacitated to marry each other
1. Bigamous marriages
2. Adulterous relationships
3. Relationships in a state of concubinage
4. Relationships where both man and woman are
married to other persons
5. Multiple alliances of the same married man
RULES
Only properties acquired by the parties
through their actual joint contribution of money,
property or industry shall be owned in common in
proportion to their respective contributions.
Presumption
Contributions and share of the parties to the
properties acquired during the cohabitation are
equal.
If one party is validly married to another:
1. His/her share in the co-owned properties will
accrue to the ACP/CPG of his/her existing valid
marriage
2. If the party who acted in bad faith is not validly
married to another, his/her share shall be
forfeited in the same manner as that provided
in Art 147
The same rules on forfeiture shall apply if
both parties are in bad faith.
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VI. THE FAMILY
FAMILY RELATIONS INCLUDE THOSE:
1. Between husband and wife;
2. Between parents and children;
3. Among brothers and sisters, whether of the full
or half-blood.
GENERAL RULE:
For a suit between members of the same
family shall prosper, the following are required:
1. Earnest efforts towards a compromise have
been made
2. Such efforts have failed
3. Such earnest efforts and the fact of failure must
be alleged
Without these 3, the case will be dismissed.
EXCEPTION:
Cases which cannot be compromised. (Article
2035):
1. civil status of persons,
2. validity of marriage or a legal separation,
3. any ground for legal separation,
4. future support,
5. jurisdiction of courts,
6. future legitime
The Family Home
DEFINITION
Dwelling place of a person and his family
A real right, which is gratuitous, inalienable,
and free from attachment, constituted over the
dwelling place and the land on which it is situated,
which confers upon a particular family the right to
enjoy such properties, which must remain with the
person constituting it and its heirs
The house and lot must be owned by the
person who constitutes it as it ins in the nature of
the family home to be permanent
To constitute the family home, there must be
actual occupancy with the intention of dedicating
the premises for such purpose
Cannot be constituted upon premises
permanently used for business purposes
Exempted from execution, forced sale, and
attachment
LIMITATIONS:
1. Each family can have only one family home. No
other family home can be established without
first dissolving the existing one.
2. The family home can be constituted only on the
dwelling place and therefore in the locality
where the family has its domicile.
3. The value of the family home must not exceed
the limit fixed by law
HEAD OF THE FAMILY:
Every person who is residing in the dwelling
house with him or her, and under his or her care
and maintenance, any of the following:
1. His or her minor child, grandchild or child of his
or her deceased wife or husband;
2. A minor brother or sister or a minor child of a
deceased brother or sister;
3. The father, mother, grandfather, grandmother
of a deceased husband or wife
4. An unmarried sister or any other of the relatives
mentioned who has attained the age of majority
but is unable to take care or support himself.
BENEFICIARIES OF THE FAMILY HOME (ART.
154):
1. The husband and wife, or an unmarried person
who is the head of the family.
2. Their parents, ascendants, descendants,
brothers and sisters, legitimate or illegitimate,
who are living in the family home and who
depend upon the head of the family for legal
support.
REQUISITES TO BE A BENEFICIARY
1. The relationship is within those enumerated
2. They live in the family home
3. They are dependent for legal support on the
head of the family
EXCEPTIONS IN THE EXEMPTION OF THE
FAMILY HOME FROM EXECUTION (ART. 156):
1. Nonpayment of taxes.
2. Debts incurred prior to the constitution of the
family home.
3. Debts secured by mortgages on the premises
before or after such constitution.
4. Debts due to laborers, mechanics, architects,
builders, materialmen and others who have
rendered service or furnished material for the
construction of the building.
OTHER RULES
 The family home must be part of the
properties of the ACP or CPG, or of the
exclusive properties of either spouse. (Art.
156)
 Property that is the subject of a conditional
sale on installments where ownership is
reversed by the vendor only to guarantee
payment of the purchase price may be
constituted as a family home (Art. 156 (2)).
 Value: shall not exceed P300,000 for urban
areas, P200,000 for rural areas, at the time of
the constitution (Art. 157)
» Urban Areas: chartered cities and
municipalities whose annual income at
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least equals that legally required for
chartered cities.
» Rural Areas: all other municipalities.
SELLING THE FAMILY HOME (ART. 158)
Family home may be sold, alienated, donated,
assigned, or encumbered by the owners.
REQUIREMENTS
1. the written consent of the person constituting
it,
2. his/her spouse, and
3. majority of the beneficiaries of legal age.
4. If there is a conflict, the Court will decide.
IN CASE OF DEATH (ART. 159):
Family home shall continue despite the death
of one or both spouses or of the unmarried head of
the family for a period of ten years, or as long as
there is a minor beneficiary.
The heirs cannot partition the home unless the
court finds compelling reasons therefor.
REQUISITES FOR CREDITOR TO AVAIL OF THE
RIGHT UNDER ARTICLE 160:
1. He must be a judgment creditor;
2. His claim is not among those excepted under
Article155, and
3. He has reasonable grounds to believe that the
family home is worth more than the maximum
amount fixed in Article 157
PROCEDURE TO AVAIL OF RIGHT UNDER
ARTICLE 160:
1. The creditor must file a motion in the court
proceeding where he obtained a favorable for a
writ of execution against the family home.
2. There will be a hearing on the motion where the
creditor must prove that the actual value of the
family home exceeds the maximum amount
fixed by the FC either at the time of its
constitution or as a result of improvements
introduced thereafter its constitution.
3. If the creditor proves that the actual value
exceeds the maximum amount the court will
order its sale in execution.
4. If the family home is sold for more than the
value allowed, the proceeds shall be applied as
follows:
a. First, the obligation enumerated in Article
155 must be paid
b. Then the judgment in favor of the creditor
will be paid, plus all the costs of execution
c. The excess, if any, shall be delivered
VII. PATERNITY AND FILIATION
A. Definition
PATERNITY
The relationship or status of a person with
respect to his or her child (paternity includes
maternity).
FILIATION
The status of a person with respect to his or
her parents.
TYPES OF FILIATION
1. Natural
a. Legitimate (Art. 164)
b. Illegitimate (Arts.165, 175, 176)
c. Legitimated (Arts. 167-172)
2. By Adoption (R.A. No. 8552 (“Domestic
Adoption Act”) and R.A. No. 8043 (“Inter-
country Adoption Act”))
3 TYPES OF LEGITIMATE CHILDREN
1. Legitimate proper
2. Legitimated
3. Adopted
2 TYPES OF ILLEGITIMATE CHILDREN
1. Children of parents disqualified to marry each
other at conception and marriage.
2. Children of parents qualified to marry each
other
 Only this kind can be legitimated by
subsequent marriage.
B. Legitimate Children
DEFINITION
 conceived OR born DURING marriage
 conceived during, born after
 conceived before, born during
 conceived AND born during
Any child born conceived or born during
marriage of parents (Art. 160)
ARTIFICIAL INSEMINATION
Impregnation of a female with the semen
from a male without sexual intercourse
It may be:
1. of the husband (AIH –homologous artificial
insemination) - LEGITIMATE
2. of a donor (AID –heterologous artificial
insemination) – LEGITIMATE IF RULES ARE
FOLLOWED
3. combination of the husband’s and a donor’s
(AIC –confused or combined artificial
insemination)
TOLENTINO: If the consent is not written, favor of
legitimacy; written consent not essential, other
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evidence is OK (analogous to marriage certificates)
FOR CHILD BORN THROUGH AID TO BE LEGITIMATE
(ART. 160):
1. Both must authorize/ratify
2. in a written instrument
3. signed before birth of child
4. Registered in civil registry together with
certificate.
IN VITRO FERTILIZATION
An ovum of another woman is used.  NOT
covered by the Family Code.
PROF. AGUILING-PANGALANGAN: AI provides a
remedy for impotent men. There is no remedy for
women as surrogacy is forbidden.
C. Impugning Legitimacy
GROUNDS TO IMPUGN LEGITIMACY OF A
CHILD:
1. PHYSICAL IMPOSSIBILITY
It was impossible for the husband to have sex
with his wife within the first 120 days (period of
conception) of the 300 days which immediately
preceded the birth of the child because of:
a. Physical incapacity – impotence, not
sterility. This presumption is so strong that
evidence must be so convincing to justify
the bastardization (there really is this term)
of the child. In the case of Tarleton v.
Thompson, the guy’s penis was cut off but
the court still declared him to be the father
since even if cut, it was still 3 inches long
(long enough to be able to copulate).
b. Living Separately – Mere remoteness is
not sufficient.
c. Serious I llness – Illness must be serious to
absolutely prevent him from having sex.
WHY? Because if it is impossible for the
husband to have sex with his wife during the said
period of 120 days, the child could not be his
legitimate child.
2. Biological or other scientific grounds
a. Blood grouping tests – can determine non-
paternity but not paternity (ex. A-B-O test).
b. Human Leukocyte Antigen Test (HLA) – can
prove identity between child and father with
a probability exceeding 98%.
c. DNA test
d. Vasectomy
SEMPIO-DIY: A double vasectomy,
together with other pieces of evidence, can
show the impossibility of the alleged father
siring his supposed child.
STA. MARIA: The fact that the husband
has undergone vasectomy is not enough
proof to rebut the presumption of
legitimacy (Cocharan v. Cocharan).
3. Consent in artificial insemination is
defectively secured
The only person who can impugn the
legitimacy of the child on this ground is only the
husband. Wife is barred because of Articles 167,
170, and 171.
RULE UNDER THE CIVIL CODE (IMPUGNING
LEGITIMACY OF A CHILD)
There is only one kind of proof (same 120-300
day rule)
It does not take into account the modern
advances in science and technology.
THE CHILD IS CONSIDERED LEGITIMATE
ALTHOUGH:
 The mother may have declared against its
legitimacy;
 The mother may have been sentenced as an
adulteress (Art. 167)
REASONS FOR RULE
1. The mother, in a fit of anger or to arouse
jealousy on the part of the husband, might have
declared against the child’s legitimacy, even if
such declaration is untrue.
2. Even the wife, who has had carnal knowledge
with her husband and with her paramour, would
not be able to tell with certainty who is the real
father of her child.
3. The husband, whose honor is offended, might
have been able to obtain from his wife through
coercion a confession of her guilt of adultery,
but this does not mean that the child begotten
by her is not that of her husband.
TOLENTINO: This provision applies to the child of a
wife who was raped.
IN CASE OF TWO MARRIAGES OF MOTHER
(ART. 168):
For the child to be considered the child of the
1
st
husband, the following requisites must concur:
1. The mother must have married again within
300 days from the termination of her first
marriage
2. The child was born within the same 300
days after the termination of the former
marriage of its mother
3. The child was born before 180 days after the
solemnization of its mother's 2
nd
marriage
For the child to be considered the child of the
2
nd
husband, the following requisites must
concur:
Termination of
1
st
marriage
Celebration of
2
nd
marriage
180 days after
celebration of 2
nd
marriage
300 days after
termination of 1
st
marriage
Child of the 1
st
marriage
Child of the 2
nd
marriage
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1. The mother must have married again within
300 days from the termination of the marriage
2. The child was born within the same 300
days after the termination of its mother's first
marriage
3. The child was born after 180 days following
the solemnization of its mother's second
marriage
The first marriage must be terminated either
by death or annulment.
There is no presumptive rule on the status of
a child born after 300 days following the
termination of the marriage. (Art. 169)
Reason: 300 days is the longest period of
gestation.
WHO CAN IMPUGN THE LEGITIMACY OF A
CHILD?
Only the HUSBAND. His heirs can only impugn
the legitimacy of a child born to his wife when:
1. The husband died before the expiration of the
period fixed for bringing his action;
2. He died after the filing of the complaint without
having desisted therefrom; or
3. The child was born after the death of the
husband (Art. 171)
REASON
To allow other people, especially those not
belonging to the family where the child was born,
to bring an action to impugn the legitimacy of such
child, would be to invite other actions, with or
without basis, by those whose only purpose is to
break up a family to satisfy a jealous or revengeful
feeling.
In Sayson v CA, the Court held that the
legitimacy of a child cannot be attacked collaterally
or by way of defense to any action or proceeding
filed for a different purpose. The status of a child
can be questioned only in a direct action or
proceeding filed under this Article
WHEN TO IMPUGN THE LEGITIMACY OF A
CHILD (ART. 170):
1. Within 1 year – from knowledge of the birth or
its recording in the civil register, if the
impugner resides in the city or municipality
where the birth took place or was recorded;
2. Within 2 years – from knowledge of the birth
or its recording in the civil register, if the
impugner resides in the Philippines other than
in the city or municipality where the birth took
place or was recorded;
3. Within 3 years – from knowledge of the birth
or its recording in the civil register, if the
impugner resides abroad,
If the birth of the child has been concealed
or was unknown to the husband or his heirs, the
above periods shall be counted:
1. From the discovery or knowledge of the birth of
the child
2. From the discovery or knowledge of the fact of
registration of the birth, whichever is earlier.
Article 170 is not applicable if the action is not
to impugn the legitimacy of a child but to have the
child declared not a child of the alleged mother and
not her legal heir.
PROOFS OF FILIATION (ART. 172):
1. The record of birth appearing in the civil
register or a final judgment.
2. An admission of legitimate filiation in a
public document or a private handwritten
instrument and signed by the parent concerned.
Or, in their Absence:
1. The open and continuous possession of the
status of a legitimate child; or
2. Any other means allowed by the Rules of Court
and special laws.
A child can claim legitimacy anytime in his
life. In case of insanity or when the child dies as a
minor, the right shall be transmitted to the heirs.
In this case they have five years to institute action.
(Art. 173)
RIGHTS OF LEGITIMATE CHILDREN (ART.
174):
1. To bear the surnames of the father and the
mother, in conformity with the provisions of
the Civil Code on Surnames;
2. To receive support from their parents, their
ascendants, and in proper cases, their brothers
and sisters, in conformity with the provisions of
this Code on Support; and
3. To be entitled to the legitimate and other
successional rights granted to them by the
Civil Code.
D. Illegitimate Children
Children born outside of a valid marriage are
illegitimate. (Art. 165)
PROOF OF FILIATION
The same as legitimate children (Art. 175)
RIGHTS OF ILLEGITIMATE CHILDREN (ART.
176)
1. To bear the surname of their mother and
FATHER(the right to use the father’s surname is
granted to them through RA 9255, thereby
amending Art. 176)
 Requirement to use father’s Surname
» Acknowledgement from father through:
▪ The birth certificate;
▪ A public document; or
▪ A private handwritten instrument;
2. To receive support from their parents,
ascendants, and in proper cases, their brothers
and sisters; and
3. To the legitime and other successional rights
granted by law to legitimate children.
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The decision in Mossesgeld v CA, decided in
1998, where the Court ruled that the child should
be registered in the civil registry under the
surname of the mother, regardless of the
acknowledgement of the father, cannot now be
followed because of the right granted to illegitimate
children by RA 9255.
E. Legitimated Children
LEGITIMATION:
Remedy by means of which those who in fact
were not born in lawful wedlock and should
therefore be considered illegitimate children are BY
FICTION considered legitimate children, it being
supposed that they were born when their parents
were validly married.
It is an act by which the quality of a legitimate
child is conferred upon an illegitimate child.
A product of NATURE AND LAW.
Legitimation takes place by a subsequent valid
marriage between the parents. Annulment in the
future does not affect legitimacy.(Art. 178)
COMPARED TO ADOPTION
Adoption
Law merely creates by fiction a relation which
did not in fact exist.
Legitimation
Law merely makes legal what exists by
nature.
WHO CAN BE LEGITIMATED (ART. 177):
1. Child who is conceived and born outside of
wedlock; and
2. At the time of conception, the parents were not
disqualified by any impediment to marry each
other.
i.e. children those who are not disqualified by any
impediment to marry each other
CHILDREN OF FOLLOWING CANNOT BE LEGITIMATED
(BECAUSE OF IMPEDIMENT)
1. Adulterous relationships
2. Incestuous relationships
3. Bigamous relationships
4. Void marriages by reasons of public policy
under Art. 38
RULES:
1. RIGHTS: Legitimated children shall enjoy the
same rights as legitimate children (Art. 179)
2. RETROACTIVITY: The effects of legitimation
shall retroact from the time of the child’s birth.
(Art. 180)
3. DEATH OF CHILD: When the child dies before
the celebration of the marriage, their
legitimation shall benefit their descendants.
(Art. 181)
4. IMPUGNING: Only those who are prejudiced
by their rights, within five years from the time
of the cause of action accrues. (Art. 182)
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VIII. ADOPTION
*Provisions of the Family Code have been amended by RA 8049 (Inter-Country Adoption Act0 and RA
8552(Domestic Adoption Act)

A. Definition
A juridical act which creates between two persons a relationship similar to that which results from
legitimate paternity and filiation.
ADOPTION VS. LEGITIMATION:
SIMILARITIES
Both are given status of a child born in lawful wedlock of the parents adopting or legitimizing it.
DIFFERENCES
LEGITIMATION ADOPTION
Persons
affected
Only natural
children
Generally applies to
strangers
Procedure Extrajudicial acts of
parents
Always by judicial
decree
Who
applies
Only by both
parents
By one parent alone
Effect Same status and
rights as a
legitimated child
not only in rel. to
the legitimizing
parents but also to
other relatives
Creates a rel. only
between the child
and the adopting
parent
ADOPTION ONLY BY JUDICIAL DECREE:
 It is a juridical act, a proceeding in rem
 Only an adoption made through the court or in pursuance with procedure laid down under Rule 99 of the
Rules of Court is valid in this jurisdiction. Cannot be granted administratively.
 A mere agreement between adopter and parents is neither a valid adoption, nor the mere fact that child
has lived with the alleged adopter who has treated him like his own child sufficient to establish a valid
adoption.
 Fact of adoption is not presumed but must be affirmatively proved by the person claiming its existence
(through the juridical decree).
B. Who may adopt
Under the Civil Code, persons who have already children of their own cannot adopt anymore, unless they
are adopting their own illegitimate children in order to elevate their status, the reason being that, the old
concept of adoption considered it mainly for the benefit of persons who have not been blessed with children or
who have lost them.
NOTE: texts in bold indicate provisions which are changed by RA 8552)
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FAMILY CODE RA 8522
Art. 183
1. person of age (18)
2. in possession of fully civil capacity & legal
rights
3. in a position to support & care for his kids in
keeping w/means of the family
4. at least 16yrs older than person to be adopted
unless the adopter is the parent by nature or
sp of legitimate parent of person to be
adopted
5. spouses jointly/married person w/consent of
sp except:
a. when 1 seeks to adopt his own illegit child
b. when 1 sp seeks to adopt the legit child of
other
6. not disqualified under FC 184
 Full civil rights
– must have no curtailment of civil rights so that he
could fully exercise parental authority
– must not be suffering from limitations on capacity
to act such as minority, insanity or imbecility, deaf-
mutism, prodigality, and civil interdiction.
 No prohibition for relatives to adopt one another, except
in cases enumerated
 Permits the adoption of illegitimate children by their
own parents because if the latter want to make
amends, they should be encouraged. It shall raise the
child to a legitimate status.
Art. 184. The following persons may not adopt:
(1) The guardian with respect to the ward prior to the
approval of the final accounts rendered upon the
termination of their guardianship relation;
(2) Any person who has been convicted of a crime
involving moral turpitude;
(3) An alien, except:

(a) A former Filipino citizen who seeks to adopt a
relative by consanguinity; *
(b) One who seeks to adopt the legitimate child of his
or her Filipino spouse; or *
(c) One who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse a relative by
consanguinity of the latter.*
Aliens not included in the foregoing exceptions may
adopt Filipino children in accordance with the rules on
inter-country adoptions as may be provided by law.
(28a, E. O. 91 and PD 603)

Sec. 7
a) Any Filipino citizen:
oof legal age
oin possession of full civil capacity & legal rts
oof good moral character*
onot been convicted of any crime involving
moral turpitude
oemotionally & psychologically capable of
caring for children*
oin a position to support & care for his/her
kids in keeping w/means of the family
oat least 16 yrs older than adoptee and who is
in a position to support and care for
his/her children in keeping with the
means of the family. 16 years difference
may be waived when adopter is biological
parent or is the sp of the adoptee’s parent
b) Any alien possessing the same qualification as
above stated for Filipino nationals, provided that:
1. his country has diplomatic relations w/ RP
2. living in the Phil for at least 3yrs prior to
filing until decree’s entered
3. certified by his diplomatic/consular office
or any appropriate agency that he has leg
capacity to adopt in his country
4. his gov’t allows adoptee to enter his
country as his adopted child
5. conditions may be waived for ff:
a. former Filipino citizen seeks to
adopt relative w/in 4
th
degree of
consanguinity/affinity*
b. one who seeks to adopt legitimate
child of his/her Filipino sp*
c) guardian with respect to the ward after
termination of guardianship & clearance of his
financial accountabilities
Husband &Wife shall jointly adapt except in the ff
cases:
a.if 1 sp seeks to adopt legit child of other
b.if 1 sp seeks to adopt his own illegitimate
child w/consent of other spouses
c. spouses are legally separated*
In case husband and wife jointly adopt, or one
spouse adopts the illegitimate son/daughter of
the other, joint parental authority shall be
exercised by the spouses.
 The adopted or adopter may be single or married,
but if married, the consent to the adoption of his or
her spouse is needed.
 Age difference of 16 years
- to give assurance that adopter has the sufficient
maturity to fill the role of a parent to the
adopted child. Also, to approximate natural
filiation as much as possible.
-
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 Aliens –
 stricter in adoption by aliens compared to
PD 603 because children adopted by
aliens suffered cultural and psychological
shock and could not adjust to their new
lives in the foreign countries
 Some pedophiles simply abandoned the
children after they had satisfied their
sexual desires on them in their foreign
homes
 Alleged cases where children were killed
for organ transplants in the foreign
countries.
 By restricting, there is some assurance
that adopted children will receive love,
care and protection
Art. 185
 H & W must jointly adopt except:
a. when 1 sp seeks to adopt his own
illegit child
b. when 1 sp seeks to adopt legit child
of the other
Art. 186
 in case sps jointly adopt or 1 sp adopts
legit child of other, joint parental authority
shall be exercised in accordance w/FC
 Husband and wife may jointly adopt a child.
However, it is not obligatory. One spouse can
adopt alone, but the consent of the other is
required.
 If they adopt jointly, they shall have joint
parental authority over the adopted child.
 Reason: to prevent dissension between
spouses.
TOLENTINO: Legal separation terminates the
common life between spouses and the reason for
requiring the consent of one spouse for the adoption
made by the other no longer exists
 No conviction of crime involving moral turpitude
– adopter should be morally qualified to do so. Conviction
is necessary bec. Of the presumption of innocence.
Pardon does not remove disqualification.
 Emotionally and psychologically capable and in a position
to support family in keeping with the means
– parent assumes all duties and responsibilities of rearing,
caring, educating, supporting and molding the
character of child for the development of his character
and well-being. A person who is rich but too old or too
week should not be allowed.
 Aliens
- Liberalized the restrictions on adoption by aliens imposed
by the Family Code.
- Aliens may now adopt subject to the conditions/provided
that qualifications are satisfied.
 Adoption by H & W
- “one spouse adopts the illegitimate child of the other” -
in this case, only one is the adopter, although with the
consent of the other spouse.
- If spouses are legally separated, no need for joint
adoption and the consent of the other is not necessary.
 Guardians
- may adopt both under FC and RA 8522 provided that
guardianship is terminated and he has been cleared of
his financial accountabilities.
Reason: to prevent guardian who has misused or
misappropriated the funds or properties of his ward to resort to
adopting his ward to avoid an accounting of such funds or
properties and possible criminal action.
C. Who may be adopted
FAMILY CODE RA 8522
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Art. 187. The following may not be adopted:
(1) A person of legal age, unless he or she is a
child by nature of the adopter or his or her spouse,
or, prior to the adoption, said person has been
consistently considered and treated by the adopter
as his or her own child during minority.
(2) An alien with whose government the Republic
of the Philippines has no diplomatic relations; and
(3) A person who has already been adopted unless
such adoption has been previously revoked or
rescinded. (30a, E. O. 91 and PD 603)
 Plurality of Adoption – A person cannot have two
adopting fathers/mothers. But the adoption of a
child by a married man will not bar a subsequent
adoption of the same child by the wife of the
adopting parent (jointly adopted). Upon the death,
or when adoption was rescinded or revoked, only
then can the child be adopted again by another.
 Adoption of an adult is not allowed:
- he is old enough to take care of himself and does
not have to depend on anyone else to do so. If
the reason is to share material advantages with
the adopted, he can do so by simply giving the
latter financial assistance and leaving him
something in his will.
- The rationale of adoption is to give poor, orphaned,
abandoned children the advantages and blessings
of having parents who would love, support,
protect, rear and educate them until old enough
 Enumerated who MAY NOT be adopted instead of
MAY BE adopted.
SECTION 8. Who May Be Adopted. — The following
may be adopted:
a. Any person below eighteen (18) years of age
who has been administratively or judicially
declared available for adoption;
b. The legitimate son/daughter of one spouse by
the other spouse;
c. An illegitimate son/daughter by a qualified
adopter to improve his/her status to that of
legitimacy
d. A person of legal age if, prior to the adoption,
said person has been consistently considered
and treated by the adopter(s) as his/her own
child since minority;
e. A child whose adoption has been previously
rescinded; or
f. A child whose biological or adoptive parent(s)
has died: Provided, That no proceedings shall
be initiated within six (6) months from the time
of death of said parent(s).“administratively or
judicially declared available for adoption”
- voluntarily or involuntarily committed to the
Department or to a duly licensed and accredited
child-placing or child-caring agency, freed of the
parental authority of his/her biological parent(s) or
guardian or adopter(s) in case of rescission of
adoption.
- "Voluntarily committed child" is one whose parent(s)
knowingly and willingly relinquishes parental
authority to the Department.
- "Involuntarily committed child" is one whose
parent(s), known or unknown, has been
permanently and judicially deprived of parental
authority due to abandonment; substantial,
continuous, or repeated neglect; abuse; or
incompetence to discharge parental responsibilities.
D. Pre-Adoption
PRE-ADOPTION – counseling services for the
biological parents of adoptee, prospective adoptive
parents, and prospective adoptee.
Section 4 under Art. 111 of Rules and Regulation to
implement RA 8552:
1. Biological Parent(s)
a. Biological Parents shall be counseled
regarding their options:
i. to keep the child and avail of services
and assistance;
ii. avail of temporary child care
arrangements such as foster care; or
iii. relinquish the child for adoption
b. Topics to focus on:
i. the loss of parental rights over the child
and as a rule, not having further
contact with the child;
ii. the importance of providing relevant
information on the child, their own
medical history and family
background;
iii. the possibility that the child may be
placed for adoption within the
Philippines or in a foreign country;
iv. the possibility that in the future, there
may be communication with the child
at their or the child’s initiative.
v. the right to reconsider his/her decision to
relinquish his/her child within six (6)
months from signing the Deed of
Voluntary Commitment (DVC) subject
to assessment by the Department.
c. Continuing services shall be provided after
relinquishment to cope with feelings of loss,
etc. and other services for his/her
reintegration to the community.
d. The biological parent(s) who decided to keep
the child shall be provided with adequate
services and assistance to fulfill parental
responsibilities.

2. Prospective Adoptive Parent(s)
a. Biological Parents shall be counseled
regarding their options:
i. to disseminate basic information about
adoption including the adoption
process and procedures and the
effects of adoption.
ii. to inform them of the general
background of children in need of
adoptive homes including children with
special needs;
iii. to develop among prospective adoptive
parents a respect for the child’s
biological origin and an awareness of
the importance of telling the child that
he/she is adopted.
iv. To provide a support group for adoptive
parents which shall give them a venue
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for sharing their adoption experiences.
b. A certificate shall be issued by the
Department to the prospective adoptive
parents attesting that they have undergone
pre-adoption services. The certificate shall
be made a pre-requisite of the homestudy.
3. Prospective Adoptee
a. A prospective adoptee shall be provided with
counseling and other support services
appropriate to his/her age and maturity, and
in a manner and language that the child
comprehends, especially to enable him/her
to understand why he/she has been
relinquished for adoption.
b. In the case of a prospective adoptee whose
consent to his/her own adoption is
necessary, the social worker/counselor shall
consider the child’s wishes and opinions,
ensure that his/her consent is voluntary and
duly inform him/her of the effects of such
consent.
E. Adoption Procedure
Article 5, Rules and Regulations to implement
RA 8552:
Steps 1 and 2 for prospective adopters. Step 3 and
4 for prospective adoptees
1) Application for Adoption. Prior to this,
prospective adopters should attend adoption fora
and seminar. Reasonable fees and charges are also
imposed to adopters. After which, they shall file
his/her application for adoption with the
Department directly or with a social service office
of a local government unit, or with any licensed
accredited child placing agency. Spouses shall file
their application jointly.
2) Preparation of Home Study Report.
Department representatives shall conduct home
visits to the applicants to determine whether they
have capacity to adopt or not. The following
documents/certifications are required:
1. Authenticated birth certificate
2. Marriage Contract or Divorce, Annulment,
Declaration of Nullity, or Legal Separation
documents;
3. Written consent to the adoption by the
legitimate and adopted sons/daughters,
and illegitimate sons/daughters if living
with the applicant, who are at least ten
(10) years old;
4. Physical and medical evaluation by a duly
licensed physician and psychological
evaluation by a psychologist;
5. NBI/Police Clearance
6. Latest income tax return or any other
documents showing financial capability,
e.g. Certificate of Employment, Bank
Certificate or Statement of Assets and
Liabilities;
7. Three (3) character references, namely
from the local church/minister, the
employer, and a non-relative member of
the immediate community who have
known the applicant(s) for at least three
(3) years;
8. 3x5 sized pictures of the applicant(s) and
his/her immediate family taken within the
last three (3) months;
9. Certificate of attendance to pre-adoption
fora or seminars.
In addition, foreign nationals shall submit
the following:
10. Certification that the applicant(s) have
legal capacity to adopt in his/her country
and that his/her country has a policy, or is
a signatory of an international agreement,
which allows a child adopted in the
Philippines by its national to enter his/her
country and permanently reside therein as
his/her legitimate child which may be
issued by his/her country’s diplomatic or
consular office or central authority n
intercountry adoption or any government
agency which has jurisdiction over child
and family matters; or in the absence of
any of the foregoing, the Philippine
Intercountry Adoption Board may also
certify that the Philippines and the
applicants’ country have an existing
agreement or arrangement on intercountry
adoption whereby a child who has been
adopted in the Philippines or has a pre-
adoption placement approved by the Board
is allowed to enter and remain as
permanent resident in the applicant’s
country as his/her legitimate child.
11. Certificate of Residence in the Philippines
issued by the Bureau of Immigration or
Department of Foreign Affairs, as
appropriate;
12. Two (2) character references from a non-
relatives who knew the applicant(s) in the
country of which he/she is a citizen or was
a resident prior to residing in the
Philippines, except for those who have
resided in the Philippines for more than
fifteen (15) years;
13. Police Clearance from all places of
residence in the past two years
immediately prior to residing in the
Philippines.
In the case of an applicant who is residing abroad,
but is otherwise qualifies to adopt in the Philippines
under the provisions of the Act, the Homestudy
report shall be prepared by an accredited foreign
adoption agency. However, a certification from the
Intercountry Adoption Board shall be required to
ensure that said agency is accredited.
Disapproval of Adoption Application. – Except
when found by the social worker that such
application can no longer be considered, there shall
be no prejudice to future application of said
applicants.
3) Certificate Of Availability Of Child For
Adoption. – No child shall be placed for adoption
unless a clearance has been obtained from the
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Department that said child is available for
adoption.
The Department shall issue the Certificate of
Availability for Adoption not later than fifteen (15)
days after expiration of the six (6) month period
after execution of Deed of Voluntary Commitment
by the child’s parents or legal or after receipt of
entry of judgement in case of involuntary
commitment.
Copy of the Certificate of Availability for Adoption
and Child Study Report shall be sent to the Child
Welfare Specialist Group (CWSG) for purpose of
placement of the child for adoption.
* FOR BIOLOGICAL PARENTS: In all proceedings
for adoption, a comprehensive study report
prepared by a licensed social worker shall be
submitted to the court as proof that the biological
parent(s) has been properly counseled and
provided other support services:
1. to exhaust all measures to strengthen family
ties and keep the child;
2. to ensure that their decision to relinquish their
child for adoption is not caused by stress,
anxiety or pressure; and
to ascertain that such decision does not result in
improper financial gain for those involved in it.
4) Supporting Documents Of Child Study
Report. – The child study report shall be prepared
only by a licensed and accredited social worker of
the Department or child caring agency not involved
in child placement.
The following documents shall accompany the
child report:
1. Authenticated birth or foundling certificate,
when appropriate;
2. Written Consent to adoption by the biological
parent(s) or the legal guardian and the written
consent of the child if at least ten (10) years
old, signed in the presence of the social worker
of the Department or child caring agency after
proper counseling as prescribed in Section III
of these Rules;
3. Death Certificate of biological parents, Decree
of abandonment or Deed of Voluntary
Commitment, as appropriate;
4. Medical evaluation of the child and his/her
parent(s), if available;
5. Psychological Evaluation when appropriate;
6. Picture of the child
5) Submission Of Case Records Of
Prospective Adoptees and Prospective
Adoptive Parents. – Case Records of prospective
adoptees and prospective adoptive parents shall be
submitted to the concerned Adoption Resource and
Referral Office (ARRO) which was established
according to Section 23 of the Act for matching.
6) Matching. – The matching of the child to an
approved adoptive parent(s) shall be carried out
during the regular matching conference by the
Matching Committee otherwise called the Child
Welfare Specialist Group (CWSG) in the regional
level where the social workers of the child and
family are present. If records of children and
approved adoptive parent/s are not matched within
thirty (30) days in the regional level, it shall be
forwarded to the Department’s Central Office for
interregional matching
The matching proposal made by the CWSG shall be
approved by the Department.
7) Placement. – The physical transfer of a child
from a child caring agency or foster home to the
prospective adoptive parents who shall be
responsible for his/her care and custody shall be
made after the necessary form are accomplished
and the Pre-Adoption Placement Authority (PAPA)
has been issued after approval of the Regional
Director for placement within the region or by the
Department Secretary or his/her duly authorized
representative in cases of interregional placements.
8) Supervised Trial Custody. – The placement of
the child shall take effect upon issuance of the
PAPA by the Department after which the
supervised trial custody shall commence.
During the supervised trial custody, the social
worker shall conduct monthly home visits to
monitor adjustment of the prospective adopter(s)
and child to each other and submit progress report
to the Department. A copy of these reports shall be
given to the child caring agency where the child
came from.
The court may upon its own motion or on motion of
the petitioner, reduce or dispense with the trial
period if it finds that it is to the best interest of the
child. In such case, the court shall state its reasons
for reducing said period.
Disruption of Pre- Adoptive Placement. – If the
placement/relationship is found unsatisfactory by
the child or the adopter(s), or both, or if the social
worker finds that the continued placement of the
child is not in the child’s best interest, said
relationship/placement shall be suspended by the
Department which shall recommend to the
Adoption Resource and Referral Office to consider
another possible placement.
New Placement. – In the event of the disruption
of the pre-adoptive placement, the Department
shall arrange without delay a new placement of the
child, or, if inappropriate, other alternative long
term care.
9) Consent to Adoption. – If the adjustment of
the child/adopter(s) is satisfactory, the social
worker shall forward to the Department the final
supervisory report which shall include the
recommendation for the issuance of the written
consent to adoption to be executed by the
Department.
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10) Filing Of Petition For Adoption. – the
prospective adoptive parent(s) shall initiate judicial
proceeding by filing the petition to adopt not later
than 30 days from date of receipt of the
Department’s written consent to adoption.
I ssuance of Decree of Adoption and Entry of
J udgement. – If, after considering the
recommendation and reports of the social worker
and other evidence, the Court is satisfied that the
adopter(s) are qualified to adopt, then an adoption
decree and an Entry of Judgement shall be issued.
A copy of the decree of adoption shall be forwarded
to the Department.
Travel Authority of Adopted Child. – No
adoptee shall be issued a travel authority unless a
decree of adoption has already became final and
executory.
In this respect, the amended birth certificate shall
be presented. If for any valid reason the same
cannot be presented, the following is required:
a. copy of the decree of adoption and entry of
judgement
b. a certification from the Office of the
Solicitor General that the decision is final
and executory and that no appeal there
from has been filed by the said office.
Recording Of The Court Decision. – court
decision on adoption and the finality of decision
shall be submitted to the following not later that
thirty (30) days after the court decision has
become final and executory:
a. Local Civil Registry Office of the
City/municipality where the court issuing
the same is situated
b. Register of Court Decrees
After which, Local Civil Registry Office shall submit
one copy of the court decision to the Local Civil
Registrar of the city or municipality where the birth
of the adopted child was registered.
The latter office shall have the duty to prepare the
amended certificate of live birth of the adopted
child. Then, a copy of of the new birth certificate
shall be transmitted by the local civil registrar to
the National Statistics Office within 30 days from
registration

11) Post Adoption Services. – Post Adoption
Services which shall include counseling shall be
made available by the social workers of the
Department, social services unit of the local
government, child placing and child caring agencies
to develop the adoptee, adopter and the biological
parents.
IX. SUPPORT
SUPPORT  everything indispensable for
sustenance, dwelling, clothing, medical attendance,
education and transportation, in keeping with the
financial capacity of the family (Art. 194)
Kinds of Support
1. Legal – that which is required to be given by
law
2. Judicial – that which is required to be given by
court order whether pendente lite or in a final
judgment
3. Voluntary or Conventional – by agreement
An example of conventional support is as
follow. X donates land to Y. However X
imposes a mode – Y has to support X’s mother.
Characteristics of Support
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with
regard to future support
 Support in arrears can be waived.
4. Exempt from attachment or execution (Art.
205)
5. Reciprocal on the part of those who are by law
bound to support each other (Art. 195)
6. Variable (Arts. 201 and 202)
Who Are Obliged To Support Each Other
(Art. 195)
1. The spouses;
2. Legitimate ascendants and descendants;
3. Parents and their legitimate children and the
legitimate and illegitimate children of the latter;
4. Parents and their illegitimate children and the
legitimate and illegitimate children of the latter;
and
5. Legitimate brothers and sisters, whether of full
or half-blood.
Order of Support (Art. 199)
1. Spouses
2. Descendants, nearest in degree
3. Ascendants, nearest in degree
4. Brothers and Sisters
RULES:
 When two or more are obliged to give
support, the payment shall be divided
between them in proportion to their resources
(Art. 200)
 The amount of support shall be in proportion
to the resources or means of the giver and the
necessities of the recipient (Art. 201)
 Support shall be reduced or increased
proportionately according to the reduction or
increase in the necessities of the recipient
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and resources of the one giving support (Art.
202)
 Obligation to give support is demandable from
the time the person who has a right to receive
needs it for maintenance, but it shall not be
paid except from the date of judicial or extra-
judicial demand (Art. 203)
 The person obliged to give support has the
option to either pay the allowance fixed or
receive and maintain in the family dwelling
the person who has the right to receive
support (Art. 204)
 The right to receive support and the money or
property obtained as support shall not be
levied upon on attachment or execution. (Art.
205)
 When support is given by a stranger without
knowledge of the person obliged to give
support, the one who paid has the right to be
reimbursed, unless it appears that he gave it
without intention of being reimbursed (Art.
206)
 When person obliged to give support unjustly
refuses or fails to give support when urgently
needed, a third person may furnish support,
with a right of reimbursement (Art. 207)
 In case of contractual support or that given by
will, the excess in amount beyond that
required for legal support shall be subject to
levy on attachment or execution. (Art. 208)
 Contractual support shall be subject to
adjustment whenever modification is
necessary due to changes in circumstances
manifestly beyond contemplation of the
parties. (Art. 209)
X. PARENTAL AUTHORITY
Definition
PARENTAL AUTHORITY (Patria Potestas)
 “the mass of rights and obligations which
parents have in relation to the person and
property of their children until their
emancipation, and even after this under
certain circumstances.” (Manresa)
 Parental authority under the Family Code
includes parental “responsibility.”
 It is the right and duty of parents to protect
their children, to care for the in sickness and
health, and do whatever may be necessary for
their care, maintenance, and preservation.
 Purpose: The physical preservation and
development of children, as well as the
cultivation of their intellect, and education of
their heart and senses.
PARENTAL AUTHORITY INCLUDES:
1. the caring for and rearing of children for civic
consciousness and efficiency;
2. the development of the moral, mental and
physical character and well-being of said
children
PARENTAL AUTHORITY MAY ONLY BE WAIVED
IN CASES OF:
1. adoption,
2. guardianship,
3. commitment of the child in an entity or
institution engaged in child care or in a
children’s home.
Both parents exercise joint authority over
their children
In case of disagreement, the father’s decision
shall prevail, unless there is judicial order
TOLENTINO: wife’s authority is subordinated,
although subsidiary, to that of the father.
WHY FATHER’S DECISION? Based on tradition.
TOLENTINO: If the child is adopted by only one
spouse, then he is under the parental authority of
such adopter.
Illegitimate children are under the parental
authority of the mother (Art. 176, FC)
WHO EXERCISES AUTHORITY IN CASES OF
DEATH, ABSENCE, REMARRIAGE, OR
SEPARATION OF PARENTS?
 In case one parent is absent or already dead,
the present parent (Art. 212).
 Remarriage shall not affect the parental
authority over the children.
 In case of separation of parents, the parent
designated by the court. (Art. 213)
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 Innocent spouse gets custody of minor
children. (Art 63)
 The court shall take into account all relevant
considerations, especially the choice of the
child over seven years of age, unless the
parent chosen is unfit.
TENDER YEARS PRESUMPTION:
NO child under 7 years of age shall be
separated from the mother, unless the court finds
compelling reasons to order otherwise. Examples of
compelling reasons are:
 When the mother is insane;
 with a communicable disease that might
endanger the life or health of the child;
 or is maltreating the child.
Prostitution or infidelity to husband does not
make a mother unfit as parent.
The court may award custody to third
persons, if it is in the best interest of the child.
In case of death, absence, or unsuitability of
both parents, a surviving grandparent shall
exercise substitute parental authority. (Art. 214)
If there are several grandparents, the one
designated by the court (pursuant to
considerations in Art. 212, FC) shall exercise
substitute parental authority.
Only in case of the parents’ death, absence, or
unsuitability may substitute parental authority be
exercised by the surviving grandparent.
Substitute Parental Authority Exercised
By (In Order)
 The surviving grandparent, as provided in Art.
214
 Oldest brother or sister, over 21 years old,
unless unfit or unqualified.
 Child’s actual custodian, over 21 years old,
unless unfit or unqualified. (Art. 216).
In case of foundlings, abandoned neglected or
abused children and other children similarly
situated, parental authority shall be entrusted in
summary judicial proceedings to heads of children's
homes, orphanages and similar institutions duly
accredited by the proper government agency. (Art.
217)
Special Parental Authority Exercised By
(Art. 218)
1. School, its administrators and teachers, or
2. The individual, entity or institution engaged in
child care.
DISTINCTION BETWEEN SUBSTITUTE
PARENTAL AUTHORITY AND SPECIAL
PARENTAL AUTHORITY:
Substitute Parental
Authority
Special Parental
Authority
It is exercised in case of
death, absence, or if
unsuitability of parents.
Hence, it is not exercised
by the parents of parental
authority over the minor
children.
It is exercised
concurrently with the
parental authority of the
parents and rest on the
theory that while the child
is in the custody of the
person exercising special
parental authority, the
parents temporarily
relinquish parental
authority over the child to
the latter
Rights and Duties Of Parents
RIGHTS OF PARENTS UPON THEIR CHILDREN
(ART. 220):
1. To have them in their custody
2. To represent them in all matters affecting their
interests
3. Demand respect and obedience and impose
discipline on them
4. Administer their property and income to support
the child and the family
5. To give or withhold consent on marriage, pre-
nuptial, donation propter nuptias, adoption, and
employment
6. To disinherit them for just cause
DUTIES OF PARENTS UPON THEIR CHILDREN
(ART. 220):
1. support and upbringing in accordance to their
means
2. educate, instruct, and provide them with moral
and spiritual guidance, and love and
understanding
3. defend them against unlawful aggression
4. answer for damages caused by their fault or
negligence, and for civil liability for crimes
committed by them
5. give their lawful inheritance
Rights and Duties of Children
RIGHTS OF CHILDREN (ART.356 CC)
1. parental care
2. receive at least elementary education
3. be given moral and civil training by parents or
guardian
4. live in an atmosphere conducive to his physical,
moral, and intellectual development
(ART.3 PD603)
5. to be born well
6. right to a wholesome family life
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7. right to a well-rounded development
8. right to a balanced diet, adequate clothing,
shelter, proper medical attention, and all basic
physical requirements of a healthy life
9. raised in an atmosphere of morality and
rectitude
10.education commensurate to his abilities
11.full opportunities for a safe and wholesome
recreation
12.protection against exploitation and other bad
influences
13.right to the care, assistance and protection of
the State
14.right to an efficient and honest government
15.right to grow up as a free individual
DUTIES OF CHILDREN (ART.357 CC)
1. obey and honor his parents or guardian
2. respect old relatives and persons holding
substitute parental authority
3. exert his utmost for his education and training
4. cooperate with the family in matters for his own
good
(ART.4 PD603)
5. strive to live an upright and virtuous life
6. love, obey, respect his parents and cooperate
with them in strengthening the family
7. extend his love to his brothers and sisters
8. exert his utmost to develop his potentials
9. respect elders, our customs and traditions, the
memory of our heroes, duly constituted
authorities, the law, and principles of
democracy
10.participate actively in civic affairs for his
development
11.help in observance of human rights, strengthen
freedom everywhere, and world peace
DUTIES OF CHILDREN TOWARDS THEIR
PARENTS (UNDER FAMILY CODE):
1. to always observe and respect reverence
toward their parents
2. to obey their parents as long as they are under
their parental authority.
Other responsibilities of children may be found
in Art 4. of PD 603 (Child and Youth Welfare Code)
TOLENTINO: The duty to honor the parents does
not mean that children are to be deprived of the
exercise of any right or prevented from fulfilling
any legal, moral, or social obligation.
Effect of Parental Authority Upon the
Property of the Child (Art. 225)
The Father and Mother shall jointly exercise
legal guardianship over the property of the minor
child without court appointment
In case of disagreement, the father’s decision
shall prevail, unless there is judicial order to the
contrary
If the market value of the property or the
annual income of the child exceeds P50,000, the
parent is required to furnish a bond of not less than
10% of the value of the child’s property or income
Grounds for Suspension of Parental
Authority (Art. 231)
1. Conviction of parent for crime without civil
interdiction
2. Treats child with excessive harassment and
cruelty
3. Gives corrupting orders, counsel or example
4. Compels child to beg
5. Subjects or allows acts of lasciviousness
Termination of Parental Authority (Art.
228)
1. Death of parents
2. Death of child
3. Emancipation of child
If the parents exercising parental authority
has subjected the child or allowed him to be
subjected to sexual abuse, he shall be permanently
deprived of parental authority.
special thanks to:
Office of the College Secretary
UP College of Law
UP Law Center
UP College of Law Library
UP Law BarOps 2006
Review Committee
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Subject Committee
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Information Management
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Arm i B a yo t [h e a d ] . K e isie M a rfil . P a u lyn e
R e ga la d o Th e re sa R o ld a n . Le m Are n a s
C h in o B a yb a y . Trista n Tre sva lle s . Al S ia so n