UP 2010 Civil Law (Persons and Family Relations) - Libre

CIVIL LAW REVIEWER Chapter I.
CIVIL PERSONALITY
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Chapter I. Civil Personality
I. CONCEPT AND CLASSES OF PERSONS
A. NATURAL PERSONS
B. JURIDICAL PERSONS
II. CAPACITY AND RESTRICTIONS THEREON
A. PRESUMPTIONS OF CAPACITY
B. RESTRICTIONS
1. MINORITY
2. INSANITY
3. BEING DEAF-MUTE
4. PRODIGALITY
5. CIVIL INTERDICTION
6. FAMILY RELATIONS
7. ABSENCE
I. Concept and Classes of Persons
Concept of Persons
Personality is the quality derived from
being a person; it is an attribute of
persons.
Characteristics
1. It is not a being, but a quality of certain
beings.
1. It is not a physical element, but a juridical
concept.
2. It is not an object of contract, or of
possession, and cannot be impaired by
agreement.
2. It is a matter of public interest.
Article 37, Civil Code. Juridical capacity, which is
the fitness to be the subject of legal relations, is
inherent in every natural person and is lost only
through death. Capacity to act, which is the power
to do acts with legal effect, is acquired and may be
lost.
Kinds of Juridical Capacity
1. Juridical Capacity:
aka as Legal Capacity/Personality =
Fitness of man to be the subject of legal
relations
It refers to the aptitude for the holding
and enjoyment of rights.
It is inherent in every natural person
and is lost only through death. This
attaches to man by the mere fact of his
being a man.
2. Capacity to Act:
It refers to the power to do acts with
legal effect.
It is conditional and variable. It is
acquired and may be lost. It requires
both intelligence and will.
Note: Juridical capacity can exist even
without capacity to act; the existence of
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PERSONS & FAMILY RELATIONS TEAM
Prof. Carolina Austria
Faculty Editor
Anisah Azis
Karen Torres
Lead Writer
Dana Crisostomo
Jaimmie Hans
Nathan Pico
Zharmai Garcia
Rowena Yang
Margie Lim
Jiselle Compuesto
Mickey Chatto
Eden Mopia
Faye Celso
Mark Oyales
Camille Umali
JC Punongbayan
Mary Beley
Aboy Bayalan
Welga Carrasco
Joan Batimana
Writers
CIVIL LAW
Kristine Bongcaron
Patricia Tobias
Subject Editor
ACADEMICS COMMITTEE
Kristine Bongcaron
Michelle Dy
Patrich Leccio
Editors-in-Chief
PRINTING & DISTRIBUTION
Kae Guerrero
DESIGN & LAYOUT
Pat Hernandez
Viktor Fontanilla
Rusell Aragones
Romualdo Menzon Jr.
Rania Joya
LECTURES COMMITTEE
Michelle Arias
Camille Maranan
Angela Sandalo
Heads
Katz Manzano
Sam Nuez
Arianne Cerezo
Mary Rose Beley
Krizel Malabanan
Marcrese Banaag
Volunteers
MOCK BAR COMMITTEE
Lilibeth Perez
BAR CANDIDATES WELFARE
Dahlia Salamat
LOGISTICS
Charisse Mendoza
SECRETARIAT COMMITTEE
Jill Hernandez
Head
Loraine Mendoza
Mary Mendoza
Faye Celso
Joie Bajo
Members
CIVIL LAW REVIEWER Chapter I. CIVIL PERSONALITY
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the latter implies that of the former. The
capacity or incapacity of persons depends
upon the law. Both juridical capacity and
capacity to act are not rights but qualities of
persons; hence, they cannot be renounced.
A. Natural Persons (asked in 99 bar exam)
General Rule: Birth determines personality (Art
40). Death extinguishes civil personality (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:
a. From the time it is completely delivered
from the mother's womb.
b. 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)
Article 40, Civil Code. Birth determines personality;
but the conceived child shall be considered born for
all purposes that are favorable to it, provided it be
born later with the conditions specified in the
following article.
Birth = complete removal of the fetus from the
mothers womb; before birth, a fetus is merely
part of the mothers internal organs
Personality of Conceived Child
1. Limited = only for purposes FAVORABLE to
it
2. Conditional = it depends upon the child
being born alive later
Period of Conception = the first 120 days of
the 300 days preceding the birth of the child
A conceived child can acquire rights while still in
the mothers womb. It can inherit by will or by
intestacy.
Geluz v CA, (1961)
An aborted fetus had conditional personality but
never acquired legal rights/civil personality
because it was not alive at the time of delivery
from the mothers womb. No damages can be
claimed in behalf of the unborn child.
Article 41, Civil Code For civil purposes, the fetus
is considered born if it is alive at the time it is
completely delivered from the mother's womb.
However, if the fetus had an intra-uterine life of less
than seven months, it is not deemed born if it dies
within twenty-four hours after its complete delivery
from the maternal womb.
Complete respiration = test/sign of
independent life
Note: For a fetus that had an intra-uterine life
of less than seven months, it is necessary
that it lives for at least 24 hours, for it to be
considered born.
Article 42, Civil Code. Civil personality is
extinguished by death.
The effect of death upon the rights and obligations of
the deceased is determined by law, by contract and
by will.
People v. Tirol, (1981)
Criminal liability ends with death BUT civil
liability may be charged against the estate.
Article 43, Civil Code. If there is a doubt, as
between two or more persons who are called to
succeed each other, as to which of them died first,
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
shall be no transmission of rights from one to the
other.
Note: Article 43 provides a statutory
presumption when there is doubt on the
order of death between persons who are
called to succeed each other (only).
Joaquin v. Navarro, (1948)
The statutory presumption of Article 43 was not
applied due to the presence of a credible
eyewitness as to who died first.
Presumption in the Rules of Court (Rule 123,
sec. 69, par. ii)
Age Presumed Survivor
1. Both under 15 Older
2. Both above 60 Younger
3. One under 15, the
other above 60
One under 15
4. Both over 15 and
under 60; different
sexes
Male
5. Both over 15 and
under 60; same sex
Older
6. One under 15 or
over 60, the other
between those ages
One between 15 and 60
Note: Applicable only to two or more persons
who perish in the same calamity, and it is
not shown who died first, and there are no
particular circumstances from which it can
be inferred.
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B. Juridical Persons
Juridical Persons (Art 44, Civil Code)
1. The State and its Political subdivisions;
2. Other Corporations, Institutions and Entities
for public interest or purpose, created by
law;
3. Corporations, Partnerships, and
Associations for private interest or purpose
to which the law grants a juridical
personality.
Governing Laws (Art 45, Civil Code)
Juridical Person Governed by
1. State Constitution (defines its
organization and limits its
rights vis--vis citizens)
2. Political
Subdivision
Charter creating them
3. Public
Corporation
Charter creating them
4. Private
Corporation
Corporation Code, Articles of
Incorporation and By-Laws
5. Partnerships Stipulations of the parties and
suppletorily by the general
provisions on partnership of
the Civil Code
Rules
1. Juridical persons may acquire and
possess property of all kinds, incur
obligations, and bring civil or criminal
actions (Art. 46, CC)
2. 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. (Art. 47, CC)
II. Capacity to Act and Restrictions
Thereon
A. Presumption of Capacity
Standard Oil Co. v. Arenas, (1911)
Capacity to act is presumed until the contrary is
proven, and that it be the reason for the specific
act attributed. Proof of restriction: habituality,
presence at the time, no other cause
B. Restrictions
Article 38, Civil Code. Minority, insanity or
imbecility, the state of being a deaf-mute, prodigality
and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated
person from certain obligations, as when the latter
arise from his acts or from property relations, such
as easements.
Article 39, Civil Code. The following circumstances,
among others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-mute,
penalty, prodigality, family relations, alienage,
absence, insolvency and trusteeship. The
consequences of these circumstances are governed
in this Code, other codes, the Rules of Court, and in
special laws.
Capacity to act is not limited on account of religious
belief or political opinion.
A married woman, twenty-one years of age or over,
is qualified for all acts of civil life, except in cases
specified by law.
General Rule: Incapacitated persons are not
exempt from certain obligations arising from
his acts or property relations.
________________
1. Minority
RA 6809 (1989): An act lowering the age of
majority from twenty-one to eighteen years.
Effects on Contracts
a. they cannot give consent to a contract
[Art 1327 (1), CC]
b. a contract where one of the parties is a
minor is voidable [Art 1390(1),CC]
c. a contract is unenforceable when both
of the parties are minors (incapable of
giving consent) [Art 1403(3), CC]
d. minority cannot be asserted by the
other party in an action for annulment
(Art 1397, CC)
e. not obliged to make restitution except
insofar as he has been benefited (Art
1399, CC)
f. minor has no right to demand the
thing/price voluntarily returned by him
(Art 1426, CC)
g. minor has no right to recover
voluntarily paid sum or delivered thing, if
consumed in good faith (Art 1427, CC)
h. must pay reasonable amount for
necessaries delivered to him (Art 1489,
CC)
Mercado v. Espiritu, (1918)
Estoppel works against minors who
misrepresent their ages in a contract
and are compelled to comply with its
terms.
Bambalan v. Maramba, (1928)
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When a minor made no active
misrepresentation as to his minority and
such minority is known to the other
party, the contract is voidable (Art 1403)
as to the minor.
Braganza v. Villa Abrille, (1959)
Minors are obliged to make restitution
insofar as they have been benefited (Art
1399)
Effects on Marriage
a. May not yet contract marriage (Art 5,
FC)
b. marriages, where one of the parties is
below 18, even with the consent of
parents/guardians, are VOID (Art 35,
FC)
2. Insanity
Insanity includes many forms of mental
disease, either inherited or acquired. A
person may not be insane but only mentally
deficient (idiocy, imbecility, feeble-
mindedness).
Effect on Contracts
a. incapacity to give consent to a
contract [Art 1327(2), CC]
b. contracts entered into during lucid
intervals are valid (Art. 1328, CC)
c. restitution of benefits (Art 1399, CC)
Effect on Crimes
a. General rule: EXEMPTED from criminal
liability
b. Exception: acted during lucid interval
Effect on Marriage
a. may be annulled if either party was of
unsound mind unless the such party
after coming to reason, freely cohabited
with the other [Art 45(2), FC]
b. action for annulment of marriage must
be filed by the sane spouse who had no
knowledge of the others insanity; or by
any relative/guardian of the insane; or
by the insane spouse during a lucid
interval or after regaining sanity [Art
47(2), FC]
3. State of Being Deaf-Mute
a. cannot give consent to a contract if
he/she also does not know how to
write [Art 1327(2), CC]
b. can make a valid WILL, provided: the
contents of the same have either been
read personally by him or communicated
to him by 2 persons (Art 807, CC)
c. cannot be a witness to the execution of
a will (Art 820, CC)
4. Prodigality
Martinez v. Martinez, (1902)
A spendthrift or a prodigal is a person,
who, by excessive drinking, gambling,
idleness or debauchery of any kind shall
so spend, waste or lessen his estate as
to expose himself or his family to want
or suffering. The acts of prodigality
must show a morbid state of mind.
Note: It is not the circumstance of
prodigality, but the fact of being under
guardianship that restricts capacity to
act.
5. Civil Interdiction
a. It is an accessory penalty imposed
upon persons who are sentenced to a
principal penalty not lower than
reclusion temporal (article 41, Revised
Penal Code).
b. offender is deprived of rights of
parental authority, or guardianship, of
marital authority, of the right to manage
his property and of the right to dispose
of such (Art 34, RPC)
c. for the validity of marriage settlements,
the participation of the guardian shall
be indispensible (Art 123, CC)
6. Family Relations
a. justifying circumstance if acted in
defense of person/rights of spouse,
ascendants, descendants,
brothers/sisters, and other relatives up
to the 4
th
civil degree [Art 11(2), RPC]
b. mitigating circumstance if acted in the
immediate vindication of a grave
offense/felony committed against his
spouse, ascendants or relatives of the
same civil degree [Art 12(5), RPC]
c. incestuous and void marriages:
between ascendants and
descendants of any degree;
between brothers and sisters,
whether full or half-blood. (Art 37,
FC)
d. donations/grants of gratuitous
advantage between spouses during
the marriage shall be VOID, except
moderate gifts during family occasions
(Art 87, FC)
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e. descendants cannot be compelled to
testify in a criminal case, against his
parents and grandparents
UNLESS: crime was against the
descendant OR by one parent
against the other (Art 215, FC)
f. spouses cannot sell property to each
other, except:
absolute separation is agreed upon
in the marriage settlements
judicial separation of property (Art
1490, CC)
7. Absence
Article 390, Civil Code. After an absence of seven
years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for
all purposes, except for those of succession.
The absentee shall not be presumed dead for the
purpose of opening his succession till after an
absence of ten years. If he disappeared after the
age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may
be opened. (n)
Art. 391, Civil Code. The following shall be
presumed dead for all purposes, including the
division of the estate among the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has
taken part in war, and has been missing
for four years;
3. A person who has been in danger of
death under other circumstances and his
existence has not been known for four
years.
Article 124, FC
a. administration and enjoyment of the
CPG shall belong to both spouses
jointly
b. in case of disagreement, husbands
decision shall prevail, subject to
recourse to the court by the wife for
proper remedy
c. if one spouse is incapacitated/unable
to administer, sole powers of
administration may be assumed by the
other spouse.
d. General Rule: This power does not
include disposition/encumbrance.
Exception: judicial authority or
written consent of other spouse
CIVIL LAW REVIEWER Chapter II. CITIZENSHIP AND DOMICILE
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Chapter II. Citizenship and Domicile
(asked in 75, 81, 87, 93, 05 and 08 bar
exams)
I. WHO ARE FILIPINO CITIZENS
II. DOMICILE
A. REQUISITES OF DOMICILE
B. KINDS OF DOMICILE
I. Who are Filipinos
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)
Note: These have superseded the rules on
citizenship enumerated in the Civil Code.
Citizen = owes allegiance to the state and is
entitled to its protection
II. Domicile
For Natural Persons
the place of their habitual residence (Art.
50, CC).
For Natural 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 (Art.
51, CC).
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).
________________
A. Requisites of Domicile (Callejo v. Vera)
1. Physical Presence
2. Intent to remain permanently (animus
manendi)
B. 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 ones domicile as his
permanent place.
3. Domicile by Operation of Law (i.e., Article
69, domicile of minor)
Romualdez-Marcos vs. Comelec
(1995) A married woman does not
lose her domicile to her husband.
CIVIL LAW REVIEWER Chapter III. MARRIAGE
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Chapter III. Marriage
I. DEFINITION AND NATURE OF MARRIAGE
II. REQUISITES OF MARRIAGE
A. ESSENTIAL REQUISITES
B. FORMAL REQUISITES
III. MARRIAGES SOLEMNIZED ABROAD
IV. PRESUMPTION OF MARRIAGE
I. Definition and Nature of Marriage
(asked in 91, 92 and 99 bar exams)
Definition of Marriage (Art 1 FC)
What SPECIAL CONTRACT of permanent
union
Who Between a MAN and a WOMAN
How Entered into in accordance with LAW
Purpose Establishment of CONJUGAL and
FAMILY life
Significance FOUNDATION of the family and an
INVIOLABLE SOCIAL INSTITUTION
whose nature, consequences and
incidents are governed by law and not
subject to stipulations EXCEPT that
marriage settlements may fix the
property relations during the marriage
within the limits provided by this code.
Breach of Promise to Marry
(asked in 09 bar exam)
1. As a general rule breach of promise to
marry is not an actionable wrong
(Tanjanco v CA, Wassmer v Velez) and
cannot give rise to liability for damages
in line with the principle of freedom of
consent in marriage (Art 2(2) Family
Code). (Reyes)
2. However damages may be claimed based
on the principles laid down in Art 19-21 &
2176 of the CC
Art. 19, Civil Code. Every person must, in the
exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and
observe honesty and good faith.
Art. 20, Civil Code. Every person who, contrary to
law, wilfully or negligently causes damage to another
shall indemnify the latter for the same.
Art. 21, Civil Code. Any person who wilfully causes
loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
Art. 2176, Civil Code. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this
Chapter.
EXPENSES or other incidents that
directly arose from the contract to marry
can be claimed IF the breach of promise
was done in a manner considered as
contrary to morals, good customs or
public policy (cost of wedding
preparations). (Wassmer v Velez)
LOST WAGES arising from voluntary
dismissal in anticipation of marriage can
be sued for. (Tanjanco v CA)
EXPENSES made for the renovation of
an anticipated conjugal home can be
sued for. (Piccininni v. Hajus-US
Jurisprudence)
II. Requisites of Marriage
(asked in 76, 82, 89, 90, 99, 02, 04, 07,
and 09 bar exams)
A. Essential Requisites of Marriage
Essential Requisites [LC]
1. Legal Capacity of the contracting parties,
who must be a male and a female
2. Consent (of the parties) freely given in the
presence of a solemnizing officer. (Art. 2
FC)
Legal Capacity
Male or female>=18, not under any
impediments mentioned in Art 37
(incestuous marriage) & Art 38 (marriage
against public policy), may contract
marriage. (Art 5)
Must be Male and Female
1. Jones v Hallahan, (1973): Application for
marriage license was denied since marriage
is defined by law as a contract entered into
between a man and a woman.
2. Silverio v Republic, (2007): Changing of
gender in ones birth certificate was denied;
otherwise, it would result in confusion and
would allow marriage between persons of
the same sex which is in defiance of the law,
as marriage is a union between a man and a
woman.
Note: The best source for citing the requirement
(of male/female) is still statutory, as provided
explicitly in the Family Code.
Consent Freely Given
People v Santiago, (51 Phil 68): A marriage
entered into by a person whose real intent is
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to avoid prosecution for rape is void for total
lack of consent. The accused did not intend
to be married. He merely used such
marriage to escape criminal liability.
Absence and Defect of Essential
Requisites
Absence Defect
Effect VOID VOIDABLE
Illustration - marriage
entered into by
a person <18
(Art 35 (1))
- marriage
entered into by
persons of the
same sex
(Jones v
Hallahan)
- marriage
contracted
through mistake
of one
contracting
party as to the
identity of the
other
(Art 35 (5))
- consent of
either party
was obtained
through fraud,
force,
intimidation or
undue
influence
(Art 45 (3)
(4)FC)
B. Formal Requisites of Marriage
Formal Requisites [AVC]
1. Authority of Solemnizing Officer
2. A Valid marriage License
3. Marriage Ceremony (Art 4 FC)
Authority of Solemnizing Officer
1. Who may solemnize marriage: (JC-
SPAMM)
a. Incumbent member of the Judiciary
within his jurisdiction. (Art 7 FC)
b. Priest, Rabbi, Imam or Minister of any
Church or Religious Sect. Must be:
Duly authorized by his church or
religious sect
Registered with the civil registrar
general
Acting within the limits of the written
authority granted to him by his
church or religious sect.
At least one of the contracting
parties belongs to the solemnizing
officers church or religious sect. (Art
7 FC)
c. Ship Captain or Airplane Chief may
solemnize a marriage in articulo mortis
between passengers or crew members
(Art 7,31 FC)
d. A Military commander of a unit may
solemnize marriages in articulo mortis
between persons within the zone of
military operation. (Art 7,32 FC)
e. Consul-general, consul or vice-consul
may solemnize marriages between
Filipino citizens abroad. (Art 7,10 FC)
f. Municipal and City Mayors (LGC sec
444 and 455)
2. Marriage is void when solemnized by any
person not legally authorized to perform
marriages unless either or both parties
believed in good faith that the solemnizing
officer had legal authority to do so. (Art 35
(2))
3. Absence & Irregularity of Authority of a
solemnizing officer
Absence Irregularity
Effect VOID No effect on
validity but party
responsible will
be liable.
Illustration - Marriage is
void when
solemnized by a
priest not duly
authorized by his
Church to
solemnize
marriage.
(Art 7 FC)
- lack of valid
notification of
both parties
desiring a
ceremony in a
remote place
was held to be
only a mere
IRREGULARITY
(Navarro vs.
Domagtoy 1996)
Marriage License
1. Marriages Exempt from marriage license
requirement (AREC)
a. Marriage in Articulo mortis (Art. 27, FC)
b. Marriage in Remote and inaccessible
places (Art. 28, FC)
c. Marriages by Muslims and Ethnic
cultural minorities provided they are
solemnized in accordance with their
customs, rites or practices. (Art. 33, FC)
d. Marriage by parties who have Cohabited
for at least 5 years without any legal
impediment. (Art. 34, FC, Ninal v
Badayog (2000))
2. Absence & Irregularity of Marriage License
Effect VOID No effect on
validity but party
responsible will be
liable.
Illustration - Issuance
of the Civil
Registrar of a
CERTIFICATE
- mere
IRREGULARITIES
in the marriage
license, such as a
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DUE SEARCH
AND
INABILITY TO
FIND the
application of a
marriage
license means
its absence,
thus rendering
the
marriage
VOID.
(Republic v
CA)
- Before a
marriage can
be solemnized,
a valid
marriage
license MUST
FIRST
BE
PRESENTED,
otherwise the
marriage is
VOID. (Moreno
v Bernabe)
typographical
error, do not affect
the validity of a
marriage.
(Alcantara v
Alcantara)
3. Things to do at the local civil registrar:
a. File an application of marriage license at
the proper local civil registrar. (Art. 11,
FC)
b. Present birth or baptismal certificate.
(Art. 12, FC)
c. If aged 18-21 years, present parental
consent. (Art. 14, FC)
d. If aged 21-25, present parental advice.
(Art. 15, FC)
e. If aged 18-25, present certificate of
marriage counseling from your priest.
(PD 965)
f. Pay the required fees. (Art 19, FC)
g. If foreigner, present certificate of legal
capacity issued by diplomat or consular
officials. (Art. 21, FC)
Marriage Ceremony
1. No prescribed form or religious rite for the
solemnization of marriage is required. (Art.
6, FC
The couple's written agreement where
they declare themselves as husband
and wife, signed by them before a judge
and two capable witnesses, even though
it was independently made by them, still
counts as a valid ceremony. (Martinez v
Tan, 12 Phil 731)
2. Minimum requirements prescribed by law:
(AP-PMS)
a. Appearance of contracting parties
personally before the solemnizing officer
(Art 3 FC)
b. Personal declaration that they take each
other as husband and wife. (Art 3 FC)
c. Presence of at least two witnesses of
legal age. (Art 3 FC)
d. The declaration shall be contained in the
Marriage certificate. (Art 6 FC)
e. Marriage certificate shall be Signed by
the contracting parties and their
witnesses and attested by the
solemnizing officer. (Art. 6, FC)
Note: 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)
3. Places where marriage SHALL be
solemnized: (CCO)
a. Chambers of Judge or an open court
b. Church, Chapel or Temple
c. Office of the consul general, consul or
vice consul (Art. 8, FC)
Exception:
a. Marriages in articulo mortis
b. Marriages in remote places
c. Written request from both parties.
III. Marriages Solemnized Abroad
General Rule
Marriages solemnized abroad in accordance
with the laws in force in that country shall be
valid in the Philippines. (Art 26 FC)
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. 38
IV. Presumption of Marriage
1. Presumption in favor of a valid marriage (
Art 220 CC)
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2. The presumption that a man and a woman
deporting themselves as husband and wife
have entered into a lawful contract of
marriage is satisfactory if uncontradicted.
(Sec. 3 (aa), Rule 131, ROC)
3. In marriages of exceptional character, the
existence of the marriage is presumed, even
in the TOTAL ABSENCE of a marriage
license. (Vda. De Jacob v CA, 1999)
4. if a marriage certificate is missing, and all
means HAVE NOT YET BEEN
EXHAUSTED to find it, then the marriage is
presumed to exist (Sevilla v Cardenas,
2006)
5. Absence of a marriage certificate is not
proof of absence of marriage. To prove the
fact of marriage, the following would
constitute competent evidence: (1) the
testimony of witnesses to matrimony; (2) the
couples public cohabitation; and (3) birth
and baptismal certificates of children born
during the union. (Trinidad v CA, 1998)
CIVIL LAW REVIEWER Chapter IV. VOID MARRIAGES
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Chapter IV. Void Marriages
I. GROUNDS
II. PERIOD TO FILE ACTION OR RAISE
DEFENSE
III. EFFECTS OF NULLITY
I. Grounds
Art. 4(1): The absence of any essential or
formal requisites shall render the marriage void
ab initio, except as stated in Article 35 (a).
VOID AB INITIO MARRIAGES:
A. Article 35 (Void from the Beginning)
1. Contracted by any party below eighteen
years of age even with the consent of
parents or guardians
2. Solemnized by any person not legally
authorized to perform marriages unless
such marriages were contracted with either
or both parties believing in good faith that
the solemnizing officer had the legal
authority to do so.
Note: Ones belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of law.
3. Solemnized without license, except in
marriages under exceptional circumstances
4. Bigamous or polygamous marriages not
falling under Article 41 (Art. 41: subsequent
marriage by present spouse who obtained a
declaration of presumptive death for absent
spouse prior to the subsequent marriage)
5. There is a mistake as to the identity of the
other contracting party
6. Subsequent marriages that are void
under Article 53 (Art 53: a subsequent
marriage is null and void if prior to its
celebration, it has not recorded in the civil
registry and registries of property the items
in Art. 52)
B. Article 36 (Psychological Incapacity)
Contracted by any party who, at the time of
the celebration, was psychologically
incapacitated to comply with the essential
marital obligations of marriage, even if such
incapacity becomes manifest only after its
solemnization
Republic v. Molina, (1997)
a. The burden of proof to show the nullity
of the marriage belongs to the plaintiff.
b. 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.
Note: The new Supreme Court Rule on
Declaration of absolute nullity of Void
Marriages and annulment of Voidable
Marriages (A.M. No. 02-11-10-SC,
effective March 15, 2003 and Barcelona
vs. CA (2003) provide that expert
opinion is not a condition sine qua non
for proof of psychological incapacity.
The root cause may be proven by the
totality of evidence in actual trial.
c. The incapacity must be proven to be
existing at the time of the
celebration of the marriage.
d. Such incapacity must also be shown to
be medically or clinically permanent
or incurable.
e. Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage.
f. The essential marital obligations must
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.
g. 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.
h. 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.
Note: The new Supreme Court Rule on
Declaration of absolute nullity of Void
Marriages and annulment of Voidable
Marriages (A.M. No. 02-11-10-SC, effective
March 15, 2003 provide that the appearance
of the prosecuting attorney or fiscal and the
Solicitor-General is no longer mandatory.
Santos v. Bedia-Santos, (1995):
Laid down 3 characteristics for determining
psychological incapacity: gravity,
antecedent, and incurability.
Tsoi v. CA, (1997)
Refusal of husband to have sex was
interpreted to be PI. A man who can but
wont is PI
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Marcos vs. Marcos (2000)
Psychological incapacity maybe established
by the totality of the evidence presented.
Personal medical examination could be
dispensed with.
Republic vs. San Jose (2007)
There is no requirement that the respondent
be medically examined first.
Antonio v. Reyes, (2006):
pathological liar, Molina guidelines met.
C. Article 37 (Incestuous)
1. Between ascendants and descendants of
any degree, legitimate or illegitimate
2. Between brothers and sisters, whether of
the full or half blood, legitimate or illegitimate
D. Article 38 (Against Public Policy)
1. Between collateral blood relatives,
legitimate or illegitimate, up to the fourth civil
degree.
2. Between step-parents and step-children.
Note: Stepbrothers and stepsisters can
marry because marriages between them are
not among those enumerated in article 38.
3. Between parents-in-law and children-in-
law.
4. Between adopting parent and adopted
child.
5. Between the surviving spouse of the
adopting parent and the adopted child.
6. Between the surviving spouse of the
adopted child and the adopter.
7. Between an adopted child and a
legitimate child of the adopter.
8. Between adopted children of the same
adopter.
9. Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
Relationships outside of Art. 37 and 38 which
are not impediments to marriage: brother-in-law
with sister-in-law, stepbrother with stepsister,
guardian with ward, adopted with illegitimate
child of the adopter, adopted son of the husband
with adopted daughter of the wife, parties who
have been convicted of adultery.
E. Article 41 (Bigamous Marriages,
Absentee Spouse and Presumptive
Death)
General Rule
Marriage contracted by any person during
the subsistence of a previous marriage is
void.
Exceptions: The following subsequent marriage
of the present spouse is valid:
1. Subsequent marriage due to ordinary
absence where:
a. the prior spouse had been absent for 4
consecutive years;
b. the spouse present had a well-founded
belief that absent spouse is dead; and
c. judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the absent
spouse).
2. Subsequent marriage due to extraordinary
absence where:
a. the prior spouse had been missing for 2
consecutive years;
b. there is danger of death attendant to
the disappearance;
c. the spouse present had a well-founded
belief that the missing person is dead;
and
d. judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the absent
spouse).
Note:
Institution of a summary proceeding is not
sufficient. There must also be a summary
judgment. (BALANE)
Only the deserted spouse can file or institute
an action a summary proceeding for the
declaration of presumptive death of the
absentee (Bienvenido case)
There must have been diligent efforts on the
part of the deserted spouse to locate the
absent spouse. These diligent efforts
correspond to the requirement of the law for
a well-founded belief.
Exception to the exception
When both parties to the subsequent acted in
bad faith (Art. 44)
Connected Provisions
Art. 390, Civil Code. After an absence of 7 years, it
being unknown whether or not the absentee still lives,
he shall be presumed dead for all purposes, except
for those of succession.
The absentee shall not be presumed dead for the
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purpose of opening his succession till after an
absence of 10 years. If he disappeared after the age
of 75 years, an absence of 5 years shall be sufficient
in order that his succession may be opened.
Art. 391, Civil Code. The following shall be presumed
dead for all purposes, including the division of the
estate among the heirs: (SAAD)
1. A person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for four years since the
loss of the vessel or aeroplane;
2. A person in the armed forces who has taken part
in war, and has been missing for four years;
3. A person who has been in danger of death
under other circumstances and his existence has
not been known for four years.
Note:
Although seven years is required for the
presumption of death of an absentee in the
Civil Code, Art. 41 of the Family Code
makes an exception for the purpose of
remarriage by limiting such requirement to
four years.
Art. 41 also limits the required four years in
Art. 391 for absence under exceptional
circumstances to only two years.
F. Article 44 (Present spouse who
contracts marriage in bad faith)
Both spouses of a subsequent marriage
acted in bad faith in case where a previous
spouse was an absentee
G. Article 53 (Non-Recording)
Subsequent marriage of spouses where the
requirements of recording under Art. 52 for
void marriages shall not have been complied
with
H. Article 40 (Judicial Declaration of
Nullity)
Art. 40, Civil Code. The absolute nullity of a previous
marriage may be invoked for purposes of remarriage
on the basis solely of a final judgment declaring
such previous marriage void.
Under the Civil Code (superseded by the Family
Code), there was no need for a judicial
declaration of nullity of a previous marriage for a
subsequent marriage to be valid (People v.
Mendoza). However, Article 40 of the FC now
requires a final judgment to declare a
previous marriage void for a subsequent
marriage to be valid. (Terre v. Terre, Atienza v.
Brillantes)
Terre v. Terre, (1998)
A lawyer was disbarred for grossly immoral
conduct by convincing the other party that a
judicial declaration of nullity was not
required and subsequently contracting
another marriage while his first marriage
was subsisting.
Atienza v. Brillantes, (243 SCRA 32)
A judges first marriage contracted in 1965
was void for not having a marriage license,
but the requirement for a judicial declaration
of nullity in Art. 40 applies for his
subsequent marriage contracted in 1991.
Apiag v. Cantero, (1997)
Where both marriages were contracted prior
to the effectivity of the FC, the requirement
of Art. 40 does not apply to the second
marriage where a right is already vested and
which the FC cannot have retroactive effect.
Judicial declaration of nullity of a marriage is
now an absolute requirement:
a. For the validity of any subsequent
marriage
b. For the subsequent marriage not to be
considered as bigamous
Domingo v. CA, (1993)
The judicial declaration of nullity can be
invoked for purposes other than remarriage.
Article 40 was interpreted as being a
requirement for purposes of remarriage but
not limited for that purpose. Separation of
property is also a valid purpose for filing for
a judicial declaration of nullity.
Borja-Manzano v. Sanchez, (2001)
Legal separation does not severe marital
bonds. Cohabitation under Art. 34 merely
exempts the spouses from obtaining a
marriage license, and is not met when there
exists legal impediment to marry during the
period of cohabitation.
II. Period to File Action or Raise
Defense
Art. 39. The action or defense for the declaration
of absolute nullity of a marriage shall not
prescribe. (as amended by R.A. 8533)
The phrase "However, in case of marriage
celebrated before the effectivity of this Code
and falling under Article 36, such action or
defense shall prescribe in ten years after
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this Code shall taken effect" has been
deleted by Republic Act No. 8533 [Approved
February 23, 1998]).
It must be noted that under the new
Supreme Court Rule on Declaration of
Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages (A.M. No.
02-11-10-SC, effective March 15, 2003,
nullity of the marriage can still be collaterally
attacked.
As to the parties allowed to file the action
Enrico v. Heirs of Sps. Medinaceli (2007):
Only an aggrieved or injured spouse may file
a petition for annulment of voidable
marriages or declaration of absolute nullity
of void marriages. Such petition cannot be
filed by compulsory or intestate heirs of the
spouses or by the State. The Committee is
of the belief that they do not have a legal
right to file the petition. Compulsory or
intestate heirs have only inchoate rights
prior to the death of their predecessor, and,
hence, can only question the validity of the
marriage of the spouses upon the death of a
spouse in a proceeding for the settlement of
the estate of the deceased spouse filed in
the regular courts. (also reiterated in Carlos
vs. Sandoval, 2008)
III. Effects of Nullity
Effects of Termination of Bigamous Marriage
(Art. 43 and 44)
1. Children conceived prior to its termination
considered legitimate
2. Property Regime dissolved and liquidated
(party in bad faith shall forfeit his/her share
in favor of the common children or if there
are none, children of the guilty spouse 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
stipulated as 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)
Effects of Other Void Marriages
1. The effects provided for by paragraphs (2),
(3), (4) and (5) of Article 43 and by Article
44 shall also apply in the proper cases to
marriages which are declared ab initio or
annulled by final judgment under Articles 40
and 45 [Art. 50(1)]
2. Final judgment in such cases shall provide
for the liquidation, partition, and
distribution of the:
a. properties of the spouses
b. custody and support of the common
children
c. delivery of their presumptive legitimes
unless such matters had been
adjudicated in previous judicial
proceedings [Art. 50(2)]
all creditors (of the spouses/property
regime) shall be notified of the
proceedings for liquidation [Art. 50(2 and
3)]
3. In the partition, the conjugal dwelling and
lot shall be adjudicated to the spouse with
whom majority of the common children
remain (Art. 102 and 129) [Art. 50(4)]
4. Presumptive legitimes, computed as of the
date of the final judgment, shall be
delivered in cash, property or sound
securities
a. unless the parties, by mutual agreement
judicially approved, had already
provided for such [Art. 51(1)]
b. the children/guardian/trustee may ask
for the enforcement of the judgment [Art.
51(2)]
c. the delivery of the presumptive legitimes
shall not prejudice the ultimate
successional rights, but the value of the
properties already received shall be
considered as advances on their
legitime [Art. 51(3)]
5. Either of the former spouses may marry
again AFTER compliance with the
requirements of Article 52, otherwise, the
subsequent marriage is void (Art. 53)
Requirement (Art. 52) recording in the
appropriate civil registry AND registries
of property:
a. judgment of annulment/absolute nullity
of marriage
b. partition and distribution of the
properties of the spouses
c. delivery of the childrens presumptive
legitimes
otherwise, these shall not affect third
persons
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6. Generally, children born or conceived within
void marriages are illegitimate.
Exception:
children conceived or born before
the judgment under Article 36 has
become final and executory
children conceived or born of
subsequent marriages under Article
53
Nial v. Badayog, (2000)
Children of first marriage assailed the
validity of the second marriage
contracted by their father without a
marriage license and after the latters
death.
Void marriages can be attacked
collaterally and do not prescribe
De Castro v. Assidao-de Castro, (2008)
Validity of marriage was attacked
collaterally in an action for support for
determining legitimacy of the child.
CIVIL LAW REVIEWER Chapter V. VOIDABLE MARRIAGES
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Chapter V. Voidable Marriages
(asked in 75, 76, 78, 83, 86, 90, 91, 93, 94,
95, 96, 97, 02, 03, 04, 07, and 09 bar
exams)
I. GROUNDS FOR ANNULMENT
A. EXPLANATION
B. WHO MAY FILE, PRESCRIPTION,
RATIFICATION
C. MARRIAGES NOT SUBJECT TO
RATIFICATION
II. WHEN ONE SPOUSE IS ABSENT
A. REQUIREMENTS FOR SUBSEQUENT
MARRIAGE TO BE VALID WHEN PRIOR
SPOUSE IS ABSENT
B. EFFECT OF REAPPEARANCE OF
ABSENT SPOUSE
III. EFFECTS OF PENDING ACTION/DECREE
IV. VOIDABLE VS. VOID
V. VOIDABLE VS. LEGAL SEPARATION
VI. JURISDICTION
I. Grounds for Annulment (Art. 45, FC)
Marriage may be annulled on the ff grounds
existing at time of marriage: P I F F I S
P 1. One of the parties is 18 or above but
below 21, and there is no parental
consent.
I 2. Either party was of unsound mind
(insanity).
F 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 by the wife
of the fact at the time of the
marriage that she was pregnant
by another man;
c. through concealment of a
sexually-transmitted disease,
regardless of its nature, existing
at the time of marriage;
d. through concealment of drug
addiction, habitual alcoholism or
homosexuality/lesbianism.
(Art.46, FC)
F 4. The consent of either party was
obtained through force, intimidation,
or undue influence.
I 5. Either party is physically incapable of
consummating the marriage
(impotence; this is different from
sterility).
S 6. Either party has a serious and
incurable sexually-transmissible
disease, even if not concealed.*
TOLENTINO
Action to Annul: action in rem, concerns status
of parties; res is relation bet parties or marriage
tie; jurisdiction depends on nationality or
domicile not the place of celebration
A. Grounds for Annulment explained:
1. Lack of parental consent
a. 18<=x<21 w/o parental consent
b. Ratified upon free cohabitation upon
reaching 21.
c. TOLENTINO: parents whose consents
were wanting may ratify before 21; this
right can be waived; however, the Code
Commission believes that no such
ratification can be made by the parent.
2. Insanity
a. mental incapacity or insanity is a vice of
consent; insanity (1) of varying degrees,
(2) curable being an illness, capable of
ratification or convalidation, (3) has lucid
intervals, (4) ground only for annulment
in many countries
b. can be ratified by cohabitation after
insane is cured
c. mere mental weakness is not a ground
for annulment, but if found grave enough
may amount to psychological incapacity.
d. intoxication, somnambulism where one
had no mental capacity to give consent
is equivalent to insanity
e. must EXIST AT THE TIME of the
celebration of the marriage.
f. law presumes SANITY, burden of proof
on party alleging insanity
3. Fraud
a. only those enumerated in Art. 46 FC
non-disclosure of previous
CONVICTION by final judgment of a
crime involving MORAL
TURPITUDE
concealment by wife at the time of
marriage, that she was pregnant by
another man
concealment of STD regardless of
nature existing at time of marriage
concealment of drug addiction,
habitual alcoholism, homosexuality,
lesbianism existing at time of
marriage
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b. No other misrepresentation or deceit of
CHARACTER, HEALTH, RANK,
FORTUNE OR CHASTITY shall
constitute FRAUD
c. TOLENTINO: fraud must relate to fact
material to the marital relation;
PRINCIPLE OF ENUMERATION; no
other cases of fraud can be ground for
annulment; INCLUSIO UNIUS EST
EXCLUSIO ALTERIUS
d. Conviction of Crime: requisites are
moral turpitude
conviction
e. Concealment of Pregnancy
fraud against very essence of
marriage; importance of procreation
of children; an assault to the
integrity of the union by introducing
ALIEN BLOOD
If husband knew of pregnancy, the
marriage cannot be annulled on the
ground of concealment. Three (3)
months after the celebration of the
marriage, a baby was born.
Annulment was refused because of
advanced stage of pregnancy,
which must be patent to the
husband (Buccat v Mangonon)
If there was coitus before marriage
& wife was pregnant at time of
marriage although he may not be
the father, marriage cannot be
annulled because man knows wife
is unchaste. Principle: one cannot
go to court with unclean hands.
Prof. Balane: An isolated case and
is not doctrinal.
f. Marriage cannot be annulled on ground
that wife concealed the fact that she had
been lewd & corrupt and had illegitimate
child (Shrady v Logan)
g. Maybe ratified upon cohabitation after
knowledge of fraud
Buccat v Buccat, 72 Phil. 19
Wife gave birth 3 months after marriage
celebration. Husband filed for
annulment. Ground: concealment of
non-virginity. Court held that it was
unbelievable that wife could have
concealed 6 months of pregnancy.
Aquino v Delizo, 109 Phil. 21
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.
Almelor v. RTC, (2008)
It is the concealment of homosexuality,
and not homosexuality per se, that
vitiates the consent of the innocent
party. Such concealment presupposes
bad faith and intent to defraud the other
party in giving consent to the marriage.
Corpuz v. Ochoterena, (2004)
In a legal separation or annulment case,
the prosecuting attorney must first rule
out collusion as a condition sine qua non
for further proceedings. A certification
by the prosecutor that he was present
during the hearing and even cross-
examined the plaintiff does not suffice to
comply with the mandatory requirement.
STD: Art. 45 vs. Art. 46
Art. 45 STD Art. 46 STD
Ground for annulment The STD is a type of fraud
which is a ground for
annulment
Does not have to be
concealed
Must be concealed
Must be serious and
incurable
Need not be serious nor
incurable
The STD itself is the
ground for annulment
It is the concealment that
gives rise to the annulment
Effect of Cure to Fraud in Art. 46:
Recovery or rehabilitation from STD,
drug addiction, and habitual alcoholism
will NOT BAR ACTION for annulment;
defect: not the disease, but the FRAUD
which VITIATED CONSENT
4. Force, intimidation, undue influence
a. FORCE must be one as to prevent party
from acting as a free agent; will
destroyed by fear/compulsion
b. INTIMIDATION must be one as to
compel the party by reasonable/well-
grounded fear/evil imminent upon
person/properties
c. DEGREE OF INTIMIDATION: age, sex,
condition of person borne in mind
d. A threat to enforce claim thru competent
authority, lawful or not, does not vitiate
consent
e. VIOLENCE or INTIMIDATION annul
obligation even if by third person (Art.
1336, CC)
f. UNDUE INFLUENCE when improper
advantage of his power over the will of
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another, depriving freedom of choice.
(Art. 1337, CC)
EXAMPLE: confidentiality, family
relations, suffering from mental
weakness, in financial distress
g. Threat to FILE A CASE OF immorality
on bar candidate where he does not
marry a girl who he has impregnated
does not vitiate consent (Ruiz v Atienza)
h. Threat or intimidation as no to act as
FREE AGENT; threatened of armed
demonstrations by brother is
ANNULLABLE (Tiongco v Matig-a)
i. Man rapes a girl, marries her & has no
intention to live with the girl; marriage is
annullable (People v Santiago)
j. Committee added undue influence,
maybe compelled to enter out of
REVERENTIAL FEAR e.g., fear of
causing distress to parents,
grandparents, etc
5. Impotency
a. should exist at the time of celebration
marriage
b. should continue to the time of trying
annulment case
c. should appear incurable
d. should be unknown to the other party
e. physical condition: sexual intercourse
with a person of the opposite sex is
impossible, not mere sterility
f. only potent spouse can file action
(principle: one cannot come to court with
unclean hands)
g. must exist at time of marriage, must be
continuous, must be incurable; thus if
removable by operation, NOT
ANNULLABLE (Sarao v Guevarra, CA,
40 O.G. 155 Supp. 263)
h. both spouses impotent, marriage cannot
be annulled because neither spouse is
aggrieved
i. impotency due to old age, marriage
cannot be annulled
j. POTENCY PRESUMED; party who
alleges impotency has burden of proof
(Jimenez v Canizares)
k. Although potency is presumed, there is
a doctrine in England called TRIENNIAL
COHABITATION that if wife remains
virgin after 3 yrs, husband presumed
impotent & has burden to prove
otherwise (Tompkins v Tompkins)
l. REFUSAL of wife to be examined DOES
NOT PRESUME impotency because
Filipino women are inherently shy &
bashful; TC must order physical
examination because w/o proof of
impotency, she is presumed potent; to
order her to undergo physical exam
does not infringe constitutional rights
against self-incriminating (Jimenez v
Canizares)
m. Villanueva vs. CA (2006): Absence of
cohabitation is not a ground for
annulment.
n. NOTE: if wife continues to refuse to
undergo physical exam, she can be held
for CONTEMPT & ordered to be
confined in jail until she does so
o. RELATIVE IMPOTENCY: may now be
invoked because there are cases where
one is impotent with respect to his
spouse but not with other men or
women.
p. EXAMPLE: penile erection to other
women possible; unusually large penis
can fit with abnormally large vagina
6. Sexually-transmissible disease serious and
incurable
a. should exist at the time of the marriage
b. should be found serious
c. should appear to be incurable
d. Should be unknown to other party
e. reason: danger to the health of spouse
& offspring/s
f. same as incurable impotency
g. Ratification or Convalidation of Voidable
Marriages: by cohabitation or
prescription cannot be ratified or
convalidated:
prior subsisting marriage; would
result in anomalous relationship
vitiated by impotency remains as
long as afflicted
vitiated by affliction of STD remains
as long as afflicted
Affliction of STD is unknown to the
other spouse (BALANE)
The other spouse must also be free
from a similar STD. (BALANE)
h. 2 & 3 prescribe w/in 5 yrs by Art. 47(5)
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B. Who may File, Prescription, Ratification
Ground
(Art. 45)
Who can file
(Art. 47)
Prescription
(Art. 47)
Ratification
(Art. 45)
Lack of parental consent 1. Underage party 1. 5 years after
attaining 21.
Free cohabitation after
attaining age of 21.
2. Parent or guardian 2. Before child reaches
21.
Insanity 1. Sane spouse with
no knowledge of the
others insanity
2. Legal guardian of
insane party
1. Any time before the
death of either party
Free cohabitation of
insane party after
insane party comes to
reason
3. Insane party 2. During lucid interval
or after regaining
sanity, and before
death
Fraud Injured party
(defrauded party)
Five years after
discovery of fraud
having full knowledge
of fraud
Force, intimidation, undue
influence
Injured party Five years after
disappearance of force
or intimidation
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
C. Marriages Not Subject to
Ratification/Convalidation
1. One spouse is incurably impotent (Art. 47
prescription: 5 years)
2. One spouse has an incurable STD (Art. 47
prescription: 5 years)
3. Sane spouse marries an insane spouse w/o
knowledge of insanity
4. Prior subsisting marriage
II. Marriage When One Spouse Absent
A. Requirements for Subsequent Marriage
to be Valid When Prior Spouse is
Absent (Art. 41, FC):
1. The prior spouse had been absent for 4
consecutive years, or 2 years in cases
under Art. 391 CC.
2. The spouse present has a well-founded
belief that the absent spouse was already
dead.
3. The spouse present must institute a
summary proceeding for the declaration
of presumptive death of the absentee,
without prejudice to the effect of
reappearance of the absent spouse.
__________
B. Effect of Reappearance of Absent
Spouse:
General Rule
The subsequent marriage remains valid.
Exception
It is automatically terminated by the
recording of the affidavit of reappearance of
the absent spouse.
Exception to the Exception
If there is a judgment annulling the previous
marriage or declaring it void ab initio. (Art.
42, FC)
TOLENTINO
Status of Subsequent Marriage: generally
considered bigamous & void EXCEPT par. 2 of
this article; good faith w/o falling under par. 2 will
render marriage VOID
When Voidable: must act in GOOD FAITH and
1. absent spouse not heard from 7 consecutive
yrs
2. although absent for less than 7 yrs,
generally considered dead
3. presumed to be dead after 4 yrs when
occurrence of death in A391
Judicial Declaration Unnecessary: purpose of
validity of marriage, missing spouse need not be
judicially declared an absentee, enough required
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period elapsed from time the absentee was last
heard not from judicial declaration. After 7
years, presumptive death arises w/o need for
judicial declaration
Prior Voidable Marriage: UNLESS final
judgment or dissolved by death, subsequent
marriage NULL & VOID
Status of Subs Marriage: during subsisting
marriage, remarriage is BIGAMOUS & VOID.
EXCEPT:
1. absentee four years or for two under special
circumstances
2. absence gives rise to presumption of death
w/c is required to be declared in SUMMARY
PROCEEDING to enable to remarry
Period of Absence:
1. GENERALLY, under CC, 7 years required
for declaration of presumptive death For
REMARRIAGE, reduced to 4 years by FC
2. EXCEPT in cases, CC 4 years & FC 2 years
IF
a. ON BOARD VESSEL lost at sea
voyage, airplane
b. ARMED FORCES in war
c. DANGER OF DEATH under other
circumstances, existence not known
Good Faith: PERIOD of absence for
PRESUMPTIVE DEATH is MANDATORY thus
cannot be shortened by good faith and if be
done so will be VOID
Burden of Proof: two successive marriages,
presumption on validity of 2
nd
marriage and
burden on party ATTACKING VALIDITY OF 2
ND
MARR. PRESUMPTION in favor of
INNOCENCE prevails over PRESUMPTION of
CONTINUANCE OF LIFE OF 1
ST
SPOUSE &
MARITAL RELATIONS.
Meaning of Absent spouse
1. Absent for 4 years having well-founded
belief of death
2. period of 4 years reduced to 2 years in
danger of death in A391 CC where:
a. on board vessel lost at sea or airplane
(includes all kinds of watercraft &
aircraft)
b. armed forces in war
(all military operations involving armed
fighting; does not apply to nurses,
doctors, reporters or cameramen)
c. danger of death
(includes earthquakes, fires,
explosions, dangerous
expeditions, landslides, volcanic
eruptions)
3. 2-year period counted from event of death
presumed
4. Republic v. Bermudez-Lorino, (2005)
The RTC rendered a decision declaring the
presumptive death of respondents absent
spouse based on Art. 41, FC. The Republic
appealed the decision to the CA. Applying
Art. 247 FC, the SC ruled that the CA did not
have jurisdiction over the appeal because
summary proceedings are immediately final
and executory, and therefore unappealable.
Difference between Absence in the Civil
Code and Family Code
Family Code Civil Code
As to
period
4 years under
normal
circumstances; 2
years under special
circumstances
Absent for at least 7
years; 4 years
under special
circumstances
As to
remarriage
In order to remarry,
summary
proceeding is
necessary
Declaration of
presumptive death
is not necessary
As to who
can
institute
the action
Can be instituted by
the present spouse,
any interested
party, and the
subsequent spouse
The spouses
themselves
As to
effect on
subsequen
t marriage
Subsequent
marriage is
automatically
terminated by the
recording of an
affidavit of
reappearance of the
absent spouse
Upon
reappearance,
judicial proceeding
is necessary to
declare marriage
null and void
As to
ground
Well founded belief
that the absent
spouse is dead
Generally believed
to be dead
III. Effects of Pending Actions/Decree
(Art. 49, FC)
1. The court shall provide for the support of
the spouses,
2. The custody and support 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.
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Art. 363 (CC): No child under 7 years shall be
separated from the mother unless there is a
compelling reason to do so.
Art. 48 (FC): To prevent collusion between the
parties, fabrication or suppression of evidence,
the prosecuting attorney or fiscal shall appear on
behalf of the State.
IV. Voidable v. Void Marriage
Voidable Marriage Void Marriage
Nature VALID until annulled by court INEXISTENT from the beginning
Convalidation CAN be convalidated by
prescription or free cohabitation
CANNOT be convalidated
Effect on property ACP exists unless another
system is instituted through
marriage settlement
No Community Property, only Co-
ownership
Legitimacy of children Children are LEGITIMATE if
conceived before decree of
annulment
General rule: Children are
ILLEGITIMATE (Art. 165, FC)
Exception: In void marriages by
reason of psychological incapacity
(Art. 36) or non-partition of
properties in a previous marriage
(Art. 53), children are considered
LEGITIMATE
How to impugn Can only be attacked
DIRECTLY (there must be
Annulment Decree)
May be attacked DIRECTLY or
COLLATERALLY, except for
purpose of remarriage (there must
be Judicial Declaration of Nullity)
Effect of death of parties Can no longer be impugned
after death of parties
May still be impugned after death of
parties
V. Voidable v. Legal Separation
Voidable Marriage Legal Separation
ground for annulment
at the time of marriage
causes after the
celebration of marriage
terminates marital
bond
does not terminate
marital bond
once final, cannot be
set aside to restore
marital relation
marital relations can
resume upon
reconciliation
VI. Jurisdiction
Tamano v. Ortiz, (1998)
PD No. 1083 (Code of Muslim Personal
Laws of the Philippines) does not provide for
a situation where the parties were married
both in civil and Muslim rites. Consequently,
the shari'a courts are not vested with original
and exclusive jurisdiction when it comes to
marriages celebrated under both civil and
Muslim laws. Hence, the Regional Trial
Courts have jurisdiction over such cases.
CIVIL LAW REVIEWER Chapter VI. LEGAL SEPARATION, DIVORCE, and DE FACTO SEPARATION
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Chapter VI. Legal Separation, Divorce
and De Facto Separation
I. GROUNDS FOR LEGAL SEPARATION
II. DEFENSES
III. WHEN TO FILE/TRY ACTIONS
A. PRESCRIPTION
B. RECONCILIATION PERIOD
C. ATTEMPTS ON RECONCILIATION
D. CONFESSION
E. COLLUSION
IV. EFFECTS OF FILING PETITION FOR LEGAL
SEPARATION
V. EFFECTS OF DECREE FOR LEGAL
SEPARATION
VI. RECONCILIATION
A. HOW DONE
B. EFFECTS OF RECONCILIATION
VII. DIVORCE
VIII.DE FACTO SEPARATION
I. Grounds for Legal Separation
(asked in 75, 76, 79, 80, 82, 89, 94, 96, 97,
02, 03, 06, and 07 bar exams)
(Art. 55, FC) [V A P I D H B I L A]
Note: The grounds for legal separation are
exclusive.
V 1. Repeated physical violence or
grossly abusive conduct directed
against petitioner, a common child, or a
child of the petitioner.
A 2. Physical violence or moral pressure
to compel petitioner to change religious
or political affiliation.
P 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.
I 4. Final judgment sentencing
respondent to imprisonment of more
than 6 years, even if pardoned
(executive pardon, not pardon from
offended party).
D 5. Drug addiction or habitual alcoholism
of respondent.
a. When it existed from the time of
celebration, and concealed from
petitioner, can be a ground for
annulment of marriage.
b. When it occurred only after the
marriage, it is only a ground for
legal separation, whether
concealed or not.
c. Drug addiction or habitual
alcoholism may be supervening.
H 6. Lesbianism or homosexuality of
respondent.
Same as rules on drug addiction
B 7. Contracting by respondent of a
subsequent bigamous marriage,
whether in the Philippines of abroad.
I 8. Sexual infidelity or perversion.
a. No conviction is required.
L 9. Attempt on the life of petitioner by
respondent.
a. There is no need for criminal
conviction. Only a preponderance
of evidence is required.
A 10. Abandonment of petitioner by
respondent without justifiable cause for
more than one year.
People v. Zapata and Bondoc, 88 Phil 688
(1951)
Adultery is not a continuing crime, but is
consummated and exhausted at the moment
of carnal union. As such, every sexual act is
a ground for legal separation.
Gandioco v Pearanda, 155 SCRA 725
(1989)
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.
Lapuz Sy v. Eufemio, 43 SCRA 177
(1972)
The death of one party in a legal separation
case abates the action. This is because the
death of either spouse automatically
dissolves the marriage. An action for legal
separation is also purely personal between
the spouses.
Dela Cruz. v. Dela Cruz 22 SCRA 333
Abandonment is not mere physical
estrangement but also financial and moral
desertion. There must be an absolute
cessation of marital relations, duties, and
rights with the intention of perpetual
separation.
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II. Defenses
Grounds for denying legal separation (Art.
56, FC) [4CMPRD]
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 or Recrimination between
spouses in the commission of any ground
for legal separation
5. Collusion between parties to obtain decree
of legal separation
6. Prescription of action for legal separation
(Art. 57: 5 years from occurrence of the
cause of action)
7. Reconciliation of parties during pendency
of action (Art. 66 par.1)
8. Death of either party during pendency of
action (Lapuz-Sy v Eufemio, supra)
Bugayong v. Ginez, 100 Phil. 616 (1956)
Continued cohabitation despite full
knowledge of the spouses infidelity
constitutes implied condonation.
III. When to File/Try Actions
A. Prescription
Action prescribes after five years from the
occurrence of the cause (Art. 57, FC)
B. Reconciliation Period
Action cannot be tried before six months have
elapsed from the filing of the petition (Art. 58.
FC)
Note: without prejudice to judicial determination
of custody of children, alimony, and support
pendente lite
C. 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, FC)
D. Confession
No decree of legal separation shall be based
upon a stipulation of facts or a confession of
judgment (Art. 60, par. 1. FC)
Note: Art. 60 par. 1 applies only if the judgment
was based solely on the stipulation of facts.
Thus, if other grounds were used, Art. 60
par. 1 is not applicable. (BALANE)
E. 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, FC)
IV. Effects of Filing Petition for Legal
Separation (LAC)
1. The spouses are entitled to Live separately,
but the marital bond shall not be severed.
(Art. 61, par. 1. FC).
2. 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,
FC)
3. 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. FC)
V. Effects of Decree for Legal
Separation (LACIDIMS)
1. The spouses can Live separately (Art. 63.
FC)
2. The ACP or 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, in that order (Art. 63. cf.
Art. 43, par. 2).
3. Custody of the minor children shall be
awarded to the innocent spouse (Art. 63.
FC, cf. Art 213)
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.
(Art. 63, FC)
5. Donations in favor of the guilty spouse may
be revoked (Art. 64. FC)
6. Innocent spouse may also revoke
designation of guilty spouse as beneficiary
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in an Insurance policy, even if such
stipulations are irrevocable (Art. 64. FC, cf.
PD 612, sec. 11).
7. Obligation for Mutual support ceases, but
the court may order the guilty spouse to
support the innocent spouse. (Art. 198, FC)
8. The wife shall continue to use the Surname
of the husband even after the decree for
legal separation. (Art. 372, CC)
VI. Reconciliation
A. How Done
Should the spouses reconcile, they should file a
corresponding joint manifestation under oath
of such reconciliation. (Art. 65, FC)
B. Effects of Reconciliation
1. Proceedings for legal separation shall be
terminated at whatever stage. (Art. 66, FC)
2. If there is a final decree of legal separation,
it shall be set aside. (Art. 66, FC)
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. ( Art. 66 cf. Art. 67, FC)
4. Joint custody of children is restored.
5. The right to intestate succession by guilty
spouse from innocent spouse is restored.
The right to testamentary succession
depends on the will of the innocent spouse.
VII. Divorce
(asked in 87, 90, 96, 97, 99, 02, 06 bar
exams)
General Rule
Divorce is not allowed in the Philippines and
even for Filipinos abroad.
Exception
Foreign and Muslim divorces.
Foreign Divorces (asked in 09 bar exam)
Art. 15, Civil Code. Laws relating to family rights and
duties, or to the status, condition and legal capacity of
the persons are binding upon citizens of the
Philippines, even though living abroad.
The Nationality Theory of Jurisdiction /
Nationality Principle applies to personal
rights.
Effect: Filipinos living abroad could not
obtain a valid divorce even in countries
where divorce is legally permissible.
Art. 26(2), Civil Code. Where a marriage between a
Filipino citizen and a foreigner is validly celebrated
and a divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry
under Philippines law.
Valid Foreign Divorce
a. valid marriage between a Filipino
citizen and a foreigner
b. divorce is validly obtained by the alien
spouse
c. alien spouse becomes capacitated to
remarry
Result: the Filipino spouse shall likewise
have the capacity to remarry under
Philippine law
Van Dorn v. Romillo, 139 SCRA 139 (1985)
Before the effectivity of the FC, the SC
applied Article 15 of the CC, from the
foreigners perspective, to decree the validity
of a divorce with respect to the Filipino
spouse to prevent the unjust result to the
Filipino spouse as the alien spouse is
already capacitated to remarry.
Quita v. Dandan, 300 SCRA 406 (1998)
The time of obtaining foreign citizenship is
necessary to determine the validity of
divorce obtained by the spouse who applied
for foreign citizenship. It must be
ascertained that when that spouse obtained
the divorce, he/she was no longer bound by
Philippine domestic law
Llorente v. CA, 345 SCRA 592 (2000)
A 2
nd
marriage obtained by a Filipino who is
already a US citizen at the time of the
divorce and the remarriage makes the 2
nd
marriage completely valid.
Garcia v. Recio, 366 SCRA 437 (2001)
Philippine courts do not take cognizance of
foreign laws. The foreign law granting
divorce as well as the nature of the divorce
granted (w/n it was absolute) must be
proven.
Republic vs. Orbecido, (2005)
The period of reckoning to determine
citizenship for the purpose of the application
of Art.26 par.2 is the time of securing a
divorce.
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Muslim Divorces
Presidential Decree 1083 (Code of Muslim
Personal Laws)
7 forms of Muslim divorces (Art. 45) (TF-
KILTZ)
a. talaq- repudiation of the wife by the
husband
b. ila- vow of continence by the husband
c. zihar- injurious assimilation of the wife
by the husband
d. lian- acts of imprecation
e. khul- redemption by the wife
f. tafwid- exercise by the wife of the
delegated right to repudiate
g. faskh- judicial decree
Grounds for faskh (Art. 52)
a. The marriage bond shall be severed and
the spouses may contract another
marriage
b. The spouses shall lose their mutual
rights of inheritance
c. The custody of children shall be
determined in accordance with Article 78
of the code
d. The wife shall be entitled to recover from
the husband her whole dower in case
the talaq has been affected after the
consummation of the marriage, or one-
half thereof if effected before its
consummation
e. The husband shall not be discharged
from his obligation to give support in
accordance with Article 67
f. The conjugal partnership, if stipulated in
the marriage settlements, shall be
dissolved and liquidated.
Yasin v. Sharia District Ct, 241 SCRA 606
(1995)
A Muslim divorce dissolves the marital bond
and therefore a woman may use her maiden
name and surname without any special
proceeding in court.
VIII. De Facto Separation
Rules applicable to De Facto Separation
Art. 100, Family Code. De Facto Separation shall
not affect the regime of absolute community,
except that:
1. The spouse who abandons the conjugal home
without just cause is not entitled to support,
2. Judicial authorization may be obtained when the
consent of one spouse is required by law for any
transaction of the other (subject to Art. 239), and
3. The separate property of both spouses shall be
solidarily liable for the support of the family in the
absence of sufficient community property. The spouse
present shall be given judicial authority to administer
or encumber any specific separate property of the
absent spouse and use the fruits thereof to satisfy the
latters share.
Art. 127. Same rules as above, but for Conjugal
Partnership of Gains
Procedural Rules for Art. 100/127, par. 2:
1. In the case of Art 100/127 par. 2, a verified petition
may be filed in court, attaching the proposed deed or
description of the transaction and the reason why the
other spouses consent has not been secured. (Art.
239)
2. Court shall issue a notice for the initial conference
and shall notify the other spouse to show cause why
petition should not be granted. (Art. 242)
3. If the petition is not resolved at the initial
conference, then the court shall decide in a summary
hearing. (Art. 246)
4. Its decision shall be final and executory. (Art. 247)
Perez v. CA, 255 SCRA 661 (1996)
Applicability of the tender years presumption
of Art. 213 (No child under 7 years of age
shall be separated from the mother) to de
facto separation, save for compelling
reasons such as neglect, abandonment,
unemployment and immorality, habitual
drunkenness, drug addiction, maltreatment
of child, insanity, communicable disease.
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Chapter VII. Rights and Obligations
Between Husband and Wife
(asked in 75, and 84 bar exams)
I. OBLIGATION OF SPOUSES
II. RIGHTS OF SPOUSES
III. USE OF SURNAME
I. Obligations of Spouses (Arts. 68-71,
FC)
Live together (cohabitation Art. 68)
Exemption: One spouse living abroad
or there are valid and compelling
reasons (Art. 69, Par 2)
Exemption to Exemption: Incompatibility
with the solidarity of the family (Art. 69,
Par. 2)
Observe mutual love, respect, and fidelity
Render mutual help and support (Art. 68)
Fix the family domicile.
In case of disagreement, the court shall
decide. (Art. 69, Par. 1)
Jointly support the family. (Art. 70)
From the conjugal property/income of
the fruits of their separate properties
In case of absence/insufficiency, from
their separate properties (liable in
proportion to their properties)
Manage the household. (Art. 71)
II. Rights of Spouses (Arts. 72-73, FC)
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)
Injury contemplated is physical, moral,
emotional, or psychological, not
financial.
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.
In case of disagreement, the Court shall
decide whether
o the objection is proper, and
o benefit has accrued to the family
before OR after the objection.
If BEFORE, enforce resulting obligation
against the community property.
obligation against the separate property
of the spouse who has not obtained
consent (Art. 73 [Omission corrected on
Nov. 8, 1968])
III. Use of Surname
Married Women: (Art. 370, CC)
A married woman may use:
a. Her maiden first name and surname and
add her husband's surname, or
b. Her maiden first name and her
husband's surname or
c. Her husband's full name, but prefixing a
word indicating that she is his wife, such
as Mrs.
Yasin v. Sharia District Court, (1995)
The woman only has an option and not
a duty to use the surname of her
husband, as provided for in Art. 370,
CC. Moreover, when her husband dies,
the woman can revert to her old name
without need for judicial declaration.
Widows
A widow may use the deceased husbands
surname as though he were still living. (Art.
373, CC)
Mistresses
The Supreme Court allowed the mistress to
use her live-in partners name, since
everyone already knew that she was a
mistress, so as to avoid confusion. (Legamia
v. IAC (1984))
Divorcees
The Supreme Court allowed the mistress to
use her live-in partners name, since
everyone already knew that she was a
mistress, so as to avoid confusion.
(Tolentino v. CA (1988))
CIVIL LAW REVIEWER Chapter VIII. PROPERTY RELATIONS BETWEEN SPOUSES
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Chapter VIII. Property Relations Between
Spouses
I. GENERAL PROVISIONS
II. DONATIONS BY REASON OF MARRIAGE
III. ACP
A. IN GENERAL
B. WHAT CONSTITUTES COMMUNITY
PROPERTY
C. CHARGES UPON THE ACP
D. ADMINISTRATION, OWNERSHIP AND
DISPOSITION OF THE ACP
E. DISSOLUTION OF THE ACP
F. LIQUIDATION OF ASSETS AND
LIABILITIES
IV. CPG
A. WHERE IT APPLIES
B. HUSBAND AND WIFE PLACE IN
COMMON FUND
C. EXCLUSIVE PROPERTIES OF THE
SPOUSES
D. WHAT CONSTITUTES THE CPG
E. RULES
F. CHARGES UPON CPG
G. ADMINISTRATION OF THE CPG
H. DISSOLUTION OF THE CPG
I. LIQUIDATION OF ASSETS AND
LIABILITIES
V. SEPARATION OF PROPERTIES DURING
MARRIAGE
VI. PROPERTY REGIME OF UNIONS WITHOUT
MARRIAGE
I. General Provisions
(asked in 76, 86, 91, 92, 94, 95, 96, 97 and
05 bar exams)
Order to be followed (Arts. 74, 75, FC)
1. Marriage settlements before marriage
spouses can agree to whatever regime they
want (ACP, CPG, complete separation or
any other property regime to be agreed
upon prior to the celebration of the
marriage).
2. Family Code If there are no marriage
settlements, or if the regime agreed upon is
void, the Absolute Community of Property
will be followed
3. Local Customs
General Rule (Art. 80, FC)
Property relations between Filipino spouses are
governed by Philippine laws, regardless of the
place of marriage and their residence
(Nationality Rule- Art 15, NCC).
Hence
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.
Exceptions
1. Where both spouses are aliens
2. As to the extrinsic validity of contracts
3. Contrary stipulation
Requirements for Marriage Settlements (Art.
77, FC) (WiSER)
1. Must be in writing (public or private)
2. Signed by the parties
3. Executed before the celebration of the
marriage
4. Must be registered in local civil registry to
affect third persons (If not registered, will not
prejudice third persons, ACP will apply)
5. If party needs parental consent (age 18-21),
parent/guardian must be a party to the
settlement (Art. 78)
6. If party is under civil interdiction or other
disability (not including insanity), court
appointed guardian must be a party (Art. 79)
General Rule: All modifications to the
marriage settlement must be made
before the marriage is celebrated. (Art.
76)
Exceptions:
Legal Separation (Art. 63 (2), FC)
o The property regime is
dissolved.
Revival of the former property
regime upon reconciliation if the
spouses agree (Art. 66 (2))
A spouse may petition the court for:
o Receivership
o Judicial separation of property,
or
o 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)
Judicial Dissolution (Arts. 135 and
136)
Furthermore: Marriage settlements are
considered ACCESSORY to the
marriage
Stipulations in consideration of
future marriage and donations will
be void if the marriage does NOT
take place. (Art. 81, FC)
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II. Donations by Reason of Marriage
Requisites of donations propter nuptias: (Art.
82, FC)
a) Made before the celebration of marriage.
b) Made in consideration of the marriage.
c) In favor of one or both spouses.
d) The donor must be one of the betrothed or
any third person
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 in 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
Moreover, in donations propter nuptias, the
marriage is really a consideration but not in
the sense of giving birth to the obligation.
There can be a valid donation even if the
marriage never took place. However, the
absence of marriage is a ground for the
revocation of the donation. (Solis v. Barroso,
(1928))
Donations propter nuptias are without
onerous consideration, marriage being
merely the occasion or motive for the
donation, not its cause. Being liberalities,
they remain subject to reduction for
inofficiousness upon the donors death, if
they should infringe the legitime of a forced
heir. (Mateo v. Lagua, (1969))
Rules to Follow in Donation Propter
Nuptias
1. Family Code provisions (Arts. 82-87)
2. Ordinary Donation provisions (Art. 83, FC;
Title III of Book III of the NCC)
3. Provisions on testamentary succession and
the formalities of wills for donations on future
property (Art. 84, par. 2)
Distinguished from Ordinary Donations
DONATIONS PROPTER
NUPTIAS
ORDINARY
DONATIONS
Does not require express
acceptance
Express acceptance
necessary
DONATIONS PROPTER
NUPTIAS
ORDINARY
DONATIONS
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 (Art. 84)
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
1. 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, FC)
Exception:
If they are governed by ACP
2. 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, FC)
Exception:
Moderate gifts on the occasion of any
family rejoicing.
Matabuena v Cervantes, (1971)
The donation between common-law
spouses falls within the provision prohibiting
donations between spouses during
marriage.
Harding v. Commercial Union, (1918)
The prohibition on donations can only be
assailed by persons who bear such relation
to the parties or the property itself, that their
rights are being interfered with. Here, the
insurance company of the donated car
cannot assail the validity of the donation. In
addition, the codal exception of moderate
gifts depends on the income class of the
spouses and a car could be considered a
moderate gift that does not infringe the
prohibition of donation between spouses.
Sumbad v. CA, (1999)
The donation made by a man to a woman
was held valid because no proof was shown
that they were still living in a common-law
relationship at the time of the donation.
Donation of Property Subject to
Encumbrances
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1. Are considered valid.
2. In case of foreclosure
a. if property value < obligation, donee
shall not be liable
b. if property value > obligation, donee
shall be entitled to the excess (Art. 85,
FC)
Grounds for Revocation of Donation Propter
Nuptias (Art. 86, FC) (CAVaLRI)
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: (Art. 765, CC) (PCS)
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 action for filing for revocation of donation
prescribes.
III. Absolute Community of Property
A. In General
(Asked in 98 and 07 bar exams)
When it commences
At the precise moment of the celebration of the
marriage (Art. 88, FC). 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 (Art. 89, FC)
General Rule: NOT ALLOWED
Exceptions
a. When there is judicial separation of
property
b. When there is legal separation
c. When the marriage is dissolved (by
death of one of the spouses)
d. When the marriage is annulled
Supplementary Rules to Follow
Co-ownership (Art. 90, FC)
B. What Constitutes Community Property
What it consists
All the property owned by the spouses at the
time of the celebration of the marriage or
acquired thereafter. (Art. 91, FC)
Under the ACP, spouses cannot exclude specific
properties from the regime.
What is Excluded (BGM) (Art. 92, FC)
1. Properties acquired by a gratuitous title, i.e.
donation, inheritance by testate and
intestate succession, including the fruits of
such properties
EXCEPT: When it was expressly provided
by the donor or testator that the property
shall form part of the ACP
2. Properties for personal use
EXCEPT: 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, FC)
C. Charges Upon the ACP (Art. 94, FC) (4
debts, 2 taxes, 2 expenses, support,
donation)
1. Support
Spouses
Even if not living together except
when a spouse leaves conjugal
home without just cause
Even during pendency of action for
legal separation or annulment of
marriage
Common children
Legitimate children of previous marriage
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Illegitimate children - follow the
provisions on Support and (9)
2. Debts and Obligations Contracted During
Marriage
Either by both spouses or one of them,
with the consent of the other.
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
ACP liable only to the extent that the
debt benefited the family.
4. Tax, Liens, Repairs on Community Property
Includes both major and minor repairs
5. Taxes and Expenses for Mere preservation
of Separate properties
Applies only to separate properties by
either spouse being used by the family,
not those that do not benefit the family.
Expenses limited to minor repairs.
6. Expenses for professional, Vocational, or
Self-Improvement Course of Spouses
7. Ante-nuptial Debts that Benefited the Family
If the ante-nuptial debt did not benefit
the family, applicable rule is (9).
8. Donations by Both Spouses to Common
Legitimate Children
Purpose: professional, vocational
courses or activities for self-
improvement
9. Ante-Nuptial Debts not under (7), Support of
Illegitimate Children, Liabilities of Either
Spouse Arising from Crime or Quasi-Delict
Only ff the debtor-spouse has no
exclusive property or his or her property
is insufficient.
The payments by the ACP are deemed
advances to be deducted from the share
of the guilty spouse upon the liquidation
of the absolute community.
10. Expenses of Litigation between Spouses
Except when suit is groundless
If community property is insufficient except in
(9), spouses are solidarily liable for the unpaid
balance from their separate properties.
Gambling losses shall be borne by the losing
spouses separate property, winnings shall
accrue to the community property. (Art. 95, FC)
D. Administration, Ownership and
Disposition of ACP
Administration of property
Belongs to both spouses jointly. If they disagree
the husbands 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 husbands
decision. (Art. 96, FC)
Except
When the other spouse is incapacitated, or
unable to participate in the administration (e.g.
when abroad). The powers refer solely to
administration; disposition or encumbrance
requires consent of the absent or incapacitated
spouse.
Homeowners Savings & Loan Bank v. Dailo
(2005)
In the absence of (court) authority or written
consent of the other spouse, any disposition
or encumbrance of the conjugal property
shall be void.
Disposition of Property
Either spouse may, through a will, dispose
his/her interest in the community property. (Art.
97, FC) However, the will should refer only to
his/her own share in the community property
Donation of Property
General Rule
Donation of one spouse without the consent
of the other is not allowed (Art. 98, FC)
Exceptions
a. Moderate donations to charity due to
family rejoicing or distress;
b. Moderate gifts by each spouse to the
other due to family rejoicing. (Note:
Whats moderate depends on the socio-
economic status of the family)
E. Dissolution of ACP
ACP terminates upon (Art. 99, FC)
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,
FC)
De facto separation does not affect the ACP;
EXCEPT that:
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,
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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.
Abandonment (Art. 101, FC)
Present spouse may petition the court for:
1. receivership;
2. judicial separation of property; or
3. 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:
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.
F. Liquidation of Assets and Liabilities
(asked in 89 and 99)
Process of liquidation of ACP (Art. 102, FC)
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.
a. 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.
3. Delivery of whatever remains in their
exclusive property.
4. Balance, or net remainder is divided equally
between the spouses, irrespective of how
much each brought into the community.
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, FC)
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.
a. If no liquidation is made within the
period, any disposition or encumbrance
involving community property of the
terminated marriage shall be void.
b. Non-compliance with liquidation
procedures would mean that a
subsequently contracted marriage will
follow a regime of complete separation
of property.
Procedure for Liquidation of Community
Properties of Two Marriages (Art. 104, FC)
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.
Onas v. Javillo, (1934)
Javillo contracted 2 marriages. SC ruled that
each absolute community should be
considered owner of the parcels of land
acquired during its existence. Death
discontinues ACP.
Vda. De Delizo v. Delizo, (1976
In case of doubt as to which community the
existing properties belong, the same shall be
divided between the different communities in
proportion to the capital and duration of
each.
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IV. Conjugal Partnership of Gains
(Asked in 79 bar exam)
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
husbands decision shall prevail, wife
has recourse to courts
Same as individual partners, except
when one or more partners designated
as managers.
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 community property
3. Upon dissolution
of marriage
Separate properties are returned; net
profits divided 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.
A. Where It Applies (Art. 105)
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.
Note: CPG begins at the precise moment the
marriage celebrated (Art 107)
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B. Husband and Wife Place in Common
Fund (PIPF-EC) (Art. 106)
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
C. Exclusive Properties of the Spouses
1. Art 109 (OGRE)
Directly
acquired or
originally
exclusive
(1) Property brought into marriage by
each spouse as his/her own
(2) Property acquired by either spouse
during the marriage by gratuitous title
Property
by
substitution
(3) Property acquired by right of
redemption, by barter, or by exchange
with property belonging to either spouse
(4) Property purchased with exclusive
money of either spouse
2. Other Separate Property: (CSI)
a. Collection of credits belonging to one
spouse exclusively but the interests
shall belong to the CPG (Art 119)
b. Sale of separate property of a spouse
c. Indemnity paid in case of expropriation
of separate property or under an
insurance policy covering separate
property.
Spouses retain the ownership,
possession, administration and
enjoyment of their exclusive properties
(Art 110, par 1.)
Possession by one spouse of the
separate property the other spouse does
not affect ownership
Transfer of administration of a spouses
exclusive property to the other spouse
must be made in a public instrument
recorded in the registry of property of
the place where the property is located
(Art 110, FC) but ownership is not
conferred to the administrator spouse
(Rodriguez v. de la Cruz, 1907).
D. What Constitutes the CPG (Art. 117)
(asked 75, 76, 78, 85, and 87 bar exams)
(OLF-N-HOLC)
1. Acquired by Onerous Title during the
Marriage at Expense of Common Fund
2. Acquired through the Labor, Industry, Work,
Profession of Either or both Spouses
3. Fruits from common property and net
fruits of exclusive property of each spouse
4. Share of either spouse in hidden treasure,
whether as finder or owner of property
where treasure is found
5. Acquired through occupation such as
fishing or hunting
6. Livestock existing at dissolution of
partnership in excess of what is brought by
either spouse to the marriage
7. Acquired by chance, such as winnings
from gambling or betting
Moral damages arising from a contract paid
from CPG are also awarded to the CPG
(Zulueta v. Pan-Am, 1973).
Loans contracted during the marriage are
conjugal, and so is any property acquired
therefrom (Mendoza v. Reyes, 1983).
E. Rules
1. presumption that property is conjugal: all
property acquired during the marriage,
whether made, contracted, or registered in
the name of one spouse, are presumed
conjugal unless the contrary is proven (Art.
116, FC).
As a condition sine qua non for the
operation of the presumption in favor of
the conjugal partnership the party who
invokes the presumption must first prove
that the property was acquired during
the marriage. (Acabal v. Acabal, 2005)
"X married to Y" as it appears in land
titles is not conclusive of the conjugal
status of the property (Jocson v. CA,
1989).
Exclusive property brought into a
second marriage remains exclusive
property of that spouse under CPG
regime; ACP is not retroactive for
marriages celebrated under the Civil
Code (Francisco v. CA, 1998).
2. property purchased by installment (paid
partly with conjugal funds and partly with
exclusive funds) Art. 118:
conjugal property if full ownership was
vested during the marriage CPG shall
reimburse the owner-spouse
exclusive property if full ownership was
vested before the marriage owner-
spouse shall reimburse the CPG
Exclusive property brought into a second
marriage remains exclusive property under
CPG regime. ACP is not retroactive for
marriages celebrated under the Civil Code
(Castillo v. Pasco, 1964).
Even if the installment is completed after the
marriage, the property is exclusive if
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ownership was vested in one spouse before
the marriage (Lorenzo v. Nicolas, 1952).
3. rules on improvement on exclusive
property: (Art. 120)
accession - if original value is greater
than new value (value of land + value of
improvements + net change in value),
then land remains exclusive property of
the owner-spouse; subject to
reimbursement of the cost of
improvement
reverse accession - if original value is
less than new value, then land becomes
conjugal property; subject to the
reimbursement of the value of the
property of the owner-spouse at the
dissolution of the CPG.
Change of ownership takes place at the time
when the improvements are made
(Calimlim-Canullas v. Fortun, 1984).
4. If winning ticket is bought by conjugal
funds, prize is conjugal; otherwise, it is
exclusive property of spouse who owns the
ticket.
5. Property belonging to one spouse
converted into another kind totally different
in nature from its original form during
marriage becomes conjugal in the absence
of proof that the expenses of conversion
were exclusively for the account of the
original owner-spouse, subject to
reimbursement of the value of the original
property from the conjugal partnership
6. 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.
7. 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.
8. Business property (e.g. trade-marks, trade
names, service marks, business goodwill)
are 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; 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).
F. Charges upon CPG
(asked in 87 and 04 bar exams)
Art. 121, Family Code. The conjugal partnership
shall be liable for:
(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; *
(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.
* Same as the rule governing ACP
Categorization of CPG Charges
(Pangalangan notes)
Debts &
Obligations
Taxes &
Expenses
Support
(2) Debts incurred:
(a) by
administrator-
spouse for the
benefit of the
family;
(b) by both
spouses;
(c) by one spouse
with the consent of
the other
(4)
maintenance
of CPG
properties
(1) support of
spouses and
common
children
(3) by one spouse
without the consent
of
the other for the
(5) mere
preservation
of all
exclusive
(6) education
of spouses,
absolute
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benefit of the
family
Properties
(7) antenuptial
debts for the
benefit of the
Family
(9) litigation
expenses,
unless the
suit is
groundless
(8) education
of common
children, only
for
value of
donation
Debts incurred in the exercise of a spouses
profession are charged on the CPG (Javier
v. Osmea, 34 PHIL 336).
Debts incurred during the marriage are
presumed to be conjugal and thus are
charged on the CPG (Cobb-Perez v. Lantin,
23 SCRA 637)
Loan contracts signed by both spouses are
conjugal, and they are jointly liable for
payment, even if only one spouse signs a
subsequent promissory note (DBP v. Adil,
161 SCRA 307).
Debts incurred for the benefit of third
persons are not charged on the CPG
(Luzon Surety Co. v. De Garcia, 30 SCRA
111).
G. Administration of the CPG
(asked in 75, 77, 02 and 06 bar exams)
1. The administration and enjoyment of the
conjugal partnership shall belong to both
spouses jointly. In case of disagreement,
the husband's decision shall prevail,
subject to recourse to the court by the wife
for proper remedy, which must be availed of
within 5 years from the date of the contract
implementing such decision (Art. 124,
par.1).
Sale by the husband of property
belonging to the conjugal partnership
without the consent of the wife when
there is no showing that the latter is
incapacitated is void ab initio. (Abalos v.
Macatangay, Jr, 2004)
2. Disposition or encumbrance of conjugal
property requires: (Art. 124, par. 2)
a. The consent or approval by both
spouses; OR
b. Judicial authority secured in court
Donation of CPG must be with the
consent of the other spouse except
moderate donations for charity, on
occasions of family rejoicing, or family
distress (Art 125, cf. Art 98)
Mere awareness of a transaction is NOT
consent (Jader-Manalo v. Camaisa,
2002)
Homeowners Savings & Loan Bank v.
Dailo (2005)
In the absence of (court) authority or
written consent of the other spouse,
any disposition or encumbrance of
the conjugal property shall be void.
H. Dissolution of the CPG
1. Termination of CPG Art. 126 (cf. Art. 99)
(DLAJ)
a. Death
b. Legal Separation
c. Annulment or declaration of nullity
d. Judicial separation of property
2. CPG not affected by de facto Separation Art.
128 (cf. Art. 100)
3. Abandonment and Absence (cf. Art. 101)
Ayala Investment v. Ching, (1998)
The Supreme Court ruled that indirect
benefits that might accrue to a husband
in signing as a surety or guarantee
agreement not in favor of the family but
in favor of his employer corporation are
not benefits that can be considered as
giving a direct advantage accruing to the
family. Hence, the creditors cannot go
against the conjugal partnership
property of the husband in satisfying the
obligation subject of the surety
agreement. A contrary view would put in
peril the conjugal partnership by
allowing it to be given gratuitously as in
cases of donation of conjugal
partnership property, which is prohibited.
I. Liquidation of Assets and Liabilities
(asked in 87 and 89 bar exams)
1. Procedure (Art. 129) IAR-DRIN-PC
a. Prepare an inventory of all properties
b. Amounts advanced by CPG in payment
of personal debts and obligations shall
be credited to CPG
c. Reimburse each spouse for the use of
his/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.
d. Debts and obligations of CPG shall be
paid out of the conjugal assets,
otherwise both spouses are solidarily
liable with their exclusive property.
e. Remains of the exclusive properties
shall be delivered to respective owner-
spouses
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f. Indemnify loss or deterioration of
movables belonging to either spouse,
even due to fortuitous event, used for
the benefit of the family
g. Net remainder of CPG shall the
constitute the profits which shall be
divided equally between husband and
wife except when:
o A different proportion or division was
agreed upon in the marriage
settlements
o There has been a voluntary waiver
or forfeiture of such share as
provided in the FC
h. Presumptive legitimes delivered to
common children per Art. 51
i. Conjugal dwelling goes to:
o Spouse with whom majority of
common children choose to remain
(below 7yrs deemed to have chosen
the mother)
o Whoever the court chooses in case
of lack of majority
2. Rules
Property must be recorded in the
registry of property in order to affect
third persons dealing with registered
property.
Spouses are not co-owners of CPG
during the marriage and cannot alienate
the supposed interest of each in the
said properties. The interest of the
spouses in the CPG 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.
(De Ansaldo v. Sheriff of Manila, 1937)
Rules on liquidation upon death and
liquidation of CPG of 2 or more
marriages same as in ACP (Art. 103 &
104)
Support to surviving spouse & children
during liquidation is charged against the
fruits or income of their shares in the
properties. (Art. 133)
Personal debt acquired during marriage
of either spouse is not chargeable
against community property (Go v.
Yamane, 2006)
V. Separation of Properties During
Marriage
Art. 134, Family Code. In the absence of an express
declaration in the marriage settlements, the
separation of property between spouses during the
marriage shall not take place except by judicial order.
Such judicial separation of property may either be
voluntary or for sufficient cause.
Judicial separation of property may either be
(1) voluntary or (2) for sufficient cause.
A. Sufficient Causes and Grounds for
Return to Previous Regime
Sufficient Causes for
Judicial Separation of
Property (Art. 135)
(CALASA)
Grounds for Return to
Previous Regime
(Art. 141)
(1) Spouse of petitioner
has been sentenced
to a penalty which
carries with it civil
interdiction
(1) Termination of the civil
interdiction
is judicially declared
an absentee
(2) Reappearance of
absentee spouse
(3) Loss of parental
authority of the
spouse of petitioner
has been decreed by
the court
(5) Restoration of parental
authority to the spouse
previously deprived of
it
has abandoned the
latter or failed to
comply with his or
her obligations to the
family
(4) When the spouse who
left the conjugal home
without legal
separation resumes
common life with the
other
(5) The spouse granted
the power of
administration in the
marriage settlements
has abused that
power
(3) When the court, being
satisfied that the
spouse granted the
power of
administration in will
not again abuse that
power, authorizes the
resumption of said
administration
(6) At the time of the
petition, the spouses
have been separated
in fact for at least 1
year and
reconciliation is
highly improbable.
(6) Reconciliation and
resumption of common
life of the spouse who
have separated in
facts for at least 1 year
(7) When after voluntary
dissolution of the ACP
or CPG has been
judicially decreed upon
the joint petition of the
spouses, they agree to
the revival of the
former property
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regime. No voluntary
separation of property
may thereafter be
granted.
B. Rules
1. 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 par. 1)
2. Liability of spouses to the creditors of the
family shall be SOLIDARY. (Art. 146, par. 2)
Abandonment is defined as the lack of
intention to return to the conjugal home,
without justifiable cause (Dela Cruz v. Dela
Cruz)
C. Effects of separation of property
between spouses
1. ACP or CPG is dissolved and liquidated (Art.
137)
2. Provisions on complete separation of
property applies after dissolution of
ACP/CPG (Art. 138)
a. Liability spouses to creditors shall be
solidary with their separate properties
b. mutual obligation to support each
continues except when there is legal
separation
3. Petition and final judgment of separation of
property must be filed in the appropriate
registries (Art. 139)
4. rights previously acquired by creditors are
not prejudiced (Art. 140)
D. Transfer of Administration to the Other
Spouse (Art. 142) (GACA)
When one spouse.
1. Becomes the guardian of the other.
2. Is judicially declared an absentee.
3. Is sentenced to a penalty which carries with
it civil interdiction.
4. 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.
In Re: voluntary dissolution of CPG of spouses
Bernas, 14 SCRA 237
A voluntary separation of properties is not
perfected by mere consent but upon the
decree of the court approving the same. The
petition for voluntary separation of property
was denied because the children of the 1
st
and 2
nd
marriages were not informed; the
separation of property may prejudice the
rights and shares of the children.
Maquilan v. Maquilan, (2007)
A compromise agreement with judicial
recognition is valid, pending petition for
declaration of nullity of marriage.
VI. Property regime of unions without marriage
(asked in 79, 87, 98, 00 and 09 bar exams)
Art. 147 Art. 148
When a man and a woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be
owned by them in equal shares and the property acquired by both of
them through their work or industry shall be governed by the rules on co-
ownership.
In the absence of proof to the contrary, properties acquired while they
lived together shall be presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by them in equal shares. For
purposes of this Article, a 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 former's efforts consisted in the care
and maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or her
share in the property acquired during cohabitation and owned in common,
without the consent of the other, until after the termination of their
cohabitation.
When only one of the parties to a void marriage is in good faith, the share
of the party in bad faith in the co-ownership shall be forfeited in favor of
their common children. 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. In the absence of descendants,
such share shall belong to the innocent party. In all cases, the forfeiture
shall take place upon termination of the cohabitation. (144a)
In cases of cohabitation not falling under the preceding
Article, only the properties acquired by both of the parties
through their actual joint contribution of money, property,
or industry shall be owned by them in common in
proportion to their respective contributions. In the
absence of proof to the contrary, their contributions and
corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits
of money and evidences of credit.
If one of the parties is validly married to another, his or
her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in
such valid marriage. If the party who acted in bad faith is
not validly married to another, his or her shall be forfeited
in the manner provided in the last paragraph of the
preceding Article.
The foregoing rules on forfeiture shall likewise apply
even if both parties are in bad faith.
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Art.147 Art.148
Applicability
1. man and woman
2. living together as husband and wife
3. with capacity to marry (Art.5 without any
legal impediment)
a. at least 18 years old
b. not Art. 37 (incestuous void
marriage)
c. not Art. 38 (void marriage by reason
of public policy)
d. not bigamous
4. other void marriages due to absence of
formal requisite
1. man and woman
2. living together as husband and wife
3. NOT capacitated to marry (Art.35(1)
under 18 years old)
4. adulterous relationship (e.g.
concubinage)
5. bigamous/polygamous marriage
(Art.35(4))
6. incestuous marriages under Art.37
7. Void marriages by reason of public
policy under Art.38
Salaries and wages Owned in equal shares Separately owned by parties
Properties acquired
through exclusive
funds
Remains exclusive provided there is proof Remains exclusive
Properties acquired
by both through
work or industry
Governed by rules on co-ownership
Owned in common in proportion to
respective contribution
Properties acquired
while living
together
Owned in equal shares since it is
presumed to have been acquired through
joint efforts
if one party did not participate in
acquisition, presumed to have contributed
through care and maintenance of family
and household
No presumption of joint acquisition. When
there is evidence of joint acquisition but
none as to the extent of actual
contribution, there is a presumption of
equal sharing
Forfeiture
When only one of the parties is in good faith,
the share of the party 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
If one party is validly married to another
his/her share in the co-owned properties
will accrue to the ACP/CPG of his/her
existing valid marriage
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
Yaptinchay v. Torres, (1969)
Application of Article 148; there was no
proof of actual contribution, while there was
a subsisting marriage apart from the union
without marriage, therefore, the N. Forbes
house goes to the CPG of subsisting
marriage
Juaniza v. Jose, (1979)
Property acquired by a married party during
cohabitation with another not his spouse
belongs to the CPG of the marriage, and the
other party cannot be held jointly/severally
liable for it
Villanueva v. CA, (2004)
Transfer of certificate and tax declarations
are not sufficient proof of joint contribution.
Joaquino v. Reyes (2004)
Prohibitions against donations between
spouses must likewise apply to donations
between persons living together in illicit
relations;
CIVIL LAW REVIEWER Chapter IX. The FAMILY and the FAMILY HOME
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Chapter IX. The Family and the Family
Home
I. FAMILY
A. FAMILY RELATIONS
B. GENERAL RULE
C. EXCEPTIONS
II. FAMILY HOME
A. GENERAL RULE
B. EXCEPTIONS
C. BENEFICIARIES OF THE FAMILY HOME
D. REQUISITES FOR CREDITOR TO AVAIL
OF THE RIGHT UNDER ARTICLE 160
I. Family
Basic social institution which public policy
cherishes and protects hence, no suit between
members of the family shall prosper unless
compromise between parties has failed.
A. Family relations include:
1. Between husband and wife
2. Between parents and children
3. Among other ascendants and descendants
4. Among brothers and sisters, full or half
blood.
B. General Rule
For a suit between members of the same family
to 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
Note: The case will be dismissed if it is shown
that no such efforts were made.
C. Exceptions to the general rule
(VJLAFF)
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
Hontiveros v. RTC, (1999)
Whenever a stranger is a party in a case
involving family members, the requisite
showing of earnest efforts to compromise is
no longer mandatory, as such inclusion of a
stranger takes the case out of the ambit of
FC 151.
II. Family Home
(asked in 94 and 07 bar exam)
Dwelling place of a person and his family
Guidelines
1. It is deemed constituted from time of actual
occupation as a family residence
2. It must be owned by person constituting it
3. It must be permanent
4. Rule applies to valid and voidable and even
to common-law marriages under Arts.147
and 148
5. It continues despite death of one or more
spouses or unmarried head of family for 10
years or as long as there is a minor
beneficiary (Art.159)
6. Can only constitute one family home
A. General Rule
The family home is exempt from (EFA):
1. Execution
2. Forced sale
3. Attachment
B. 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.
C. Beneficiaries of the family home (Art.
154)
1. Husband and wife, or an unmarried person
who is the head of the family
2. Parents (may include parent-in-laws),
ascendants, descendants, brothers and
sisters (legitimate/illegitimate), who are living
in the family home and who depend on the
head of the family for support
Requisites to be a beneficiary (RLD)
1. The relationship is within those
enumerated
2. They live in the family home
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3. They are dependent for legal support on the
head of the family
Requirements for the sale, alienation,
donation, assignment, or encumbrance of
the family home
1. the written consent of the person
constituting it,
2. his/her spouse, and
3. majority of the beneficiaries of legal age
Note: If there is a conflict, the Court will decide.
In case of death (ART. 159)
- The 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.
D. Requisites for creditor to avail of the
right under Article 160
Requisites
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
Versola v. Mandolaria, (2006)
The proof that the house is the family home
must be alleged against creditors; Applied
the rule in Art. 160, FC.
Patricio v. Dario III, (2006)
WON the grandson of the deceased is a
beneficiary according to Art. 154 FC. The
beneficiary should satisfy all requisites; he
must be dependent on the head of the
family.
Arriola v. Arriola, (2008)
This case involves half brothers and a
second wife; the family home includes the
land it is built on. The rule in Art. 159 of the
FC regarding the 10 year period is applied,
the parties involved must wait.
CIVIL LAW REVIEWER Chapter X. PATERNITY and FILIATION
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Chapter X. Paternity and Filiation
I. KINDS OF FILIATION
II. IMPUGNING LEGITIMACY
III. PROOF OF FILIATION
IV. LEGITIMATION
V. RIGHTS OF LEGITIMATE OR ILLEGITIMATE
CHILDREN
I. Kinds of Filiation
(Arts. 163, 164, 165 FC)
1. Natural
a. Legitimate
b. Illegitimate
2. Legal Fiction (Adoption)
Legitimate Children
(asked in 79, 82, 84, 85, 99 and 03 bar
exams)
Conceived or born during the marriage of
parents
May be thru natural means or by artificial
insemination.
1. Natural/Biological
Liyao v. Liyao, (2002): A child conceived or
born during a valid marriage is presumed to
belong to that marriage, regardless of the
existence of extramarital relationships.
2. Artificial Insemination (Art. 164)
Requisites for children conceived through
artificial insemination to be considered
legitimate:
a. Artificial insemination made on wife
b. Sperm comes any of the following:
Husband
Donor
husband and donor
c. In case of donor sperm, husband and
wife must authorize/ratify insemination in
a written instrument
Executed & signed by husband and
wife before the birth of the child.
Recorded in the civil registry
together with the birth certificate of
the child.
Illegitimate Children
(asked in 80, 82, 83, 84, 90, 93, 99, 00, 07,
08 and 09 bar exams)
General Rule: Those conceived and born
outside of a valid marriage.
Exceptions:
a. Children of marriages void under Art.36
(psychological incapacity).
b. And under Art. 53 (the second marriage
of a widow or widower who has not
delivered to his or her children by his or
her first marriage the legitime of said
children). (SEMPIO-DIY)
De Castro v. Assidao-De Castro, (2008)
Common children born before the
annulment are legitimate, and therefore
entitled to support from each of the spouses.
II. Impugning Legitimacy (Art. 166)
A. Grounds
Thus the grounds for impugning the legitimacy of
a child are:
1. Physical impossibility for sexual
intercourse within the first 120 days of the
300 days which immediately preceded the
child's birth due to:
2. Other biological or scientific reasons,
except Artificial Insemination.
3. And in case of Artificial Insemination, the
consent of either parent was vitiated
through fraud, violence, mistake,
intimidation, or undue influence.
Macadangdang v. CA, (1980)
Only a proximate separation between the
spouses is not sufficient physical separation
as grounds for impugning legitimacy.
Andal v. Macaraig, (1951)
Serious illness of the husband which
absolutely prevented him from having sexual
intercourse with his wife, like if the husband
was already in comatose or a vegetable, or
sick with syphilis in the tertiary stage so that
copulation was not possible. But
tuberculosis, even in its most crucial stage,
does not preclude copulation between the
sick husband and his wife.
Jao v. CA, (1987)
Blood-type matching is an acceptable
means of impugning legitimacy, covered by
Art. 166(2), under "biological or other
scientific reasons." But this is only
conclusive of the fact of non-paternity.
B. Action for Impugning Legitimacy (Arts.
170 and 171)
The action for impugning the legitimacy of a
child may be brought within 1, 2, or 3 years from
the knowledge of the birth, or the knowledge
of registration of birth.
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1. Within 1 year if husband or any heirs
reside in the same city or municipality where
the child was born or his birth was recorded.
2. Within 2 years if the husband or all heirs
live in the Philippines but do not reside in the
same city or municipality where the child's
birth took place or was recorded
3. Within 3 years if the husband or all heirs
live outside the Philippines when the child's
birth took place or was recorded in the
Philippines
If the birth of the child has been concealed or
was unknown to the husband, the above periods
shall be counted:
1. from the discovery or knowledge of the
birth of the child, or
2. from the discovery or knowledge of its
registration,
3. whichever is earlier.
Sayson v. CA
Legitimacy can only be attacked directly
General Rule: Only the husband can
impugn the legitimacy of a child. If he does
not bring action within the prescribed
periods, he cannot file such action anymore
thereafter, and this is also true with his heirs.
Exception: That the heirs of the husband
may file the action or continue the same if it
has already been filed
a. If the husband died before the
expiration of the period fixed for bringing
his action
b. If he should die after the filing of the
complaint without having desisted
c. If the child was born after the death of
the husband.
III. Proof of Filiation (Arts. 172 and 175
(1))
(asked in 85, 95, 05 and 06 bar exams)
A. Rules
Legitimate or illegitimate children may prove
their filiation in the same way and on the same
evidence.
General Rule: They may only prove their status
using the following pieces of evidence:
1. Their record of birth appearing in the civil registry.
2. An admission of his filiation (legitimate or
illegitimate) by his parent or parents in a public
document or a private handwritten instrument and
signed by said parent or parents. (SEMPIO-DIY)
3. Proof of open and continuous possession of
status as legitimate or illegitimate child
4. Any other means stated by the rules of court or
special laws
Mendoza v. Melia, 17 SCRA 788
Baptismal certificates are given probative
value only for births before 1930. Birth
certificates must be signed by the parents
and sworn for it to be admitted as evidence.
Baluyut v. Baluyut, (1990)
Unsigned birth certificates are not evidence
of recognized filiation.
Acebedo v. Arquero, (2003)
Baptismal certificates are only conclusive of
the sacrament administered, and cannot be
used as proof of filiation.
Lim v. CA, (1975)
Marriage certificates cannot be used as
proof of filiation.
Jison v. CA, (1998)
Rule 130, Sec. 40 is limited to objects
commonly known as family possessions
reflective of a family's reputation or tradition
regarding pedigree like inscriptions on
tombstones, monuments, or coffin plates.
Eceta v. Eceta (2004)
Signature of the father on the birth certificate
is considered as an acknowledgement of
paternity and mere presentation of a duly
authenticated copy of such certificate will
successfully establish filiations.
Heirs of Rodolfo Baas v. Heirs of Bibiano
Baas, (1985)
"Su padre [Your father]" ending in a letter is
only proof of paternal solicitude and not of
actual paternity. Signature on a report card
under the entry of "Parent/Guardian" is
likewise inconclusive of open admission.
De Jesus v. Syquia, (1933)
By "open and continuous possession of the
status of a legitimate child" is meant the
enjoyment by the child of the position and
privileges usually attached to the status of a
legitimate child, like bearing the paternal
surname, treatment by the parents and
family of the child as legitimate, constant
attendance to the child's support and
education, and giving the child the
reputation of being a child of his parents.
Agustin v. CA, (2005)
DNA evidence can be used as proof of
paternity.
De Jesus v. Estate of Decedent Juan Gamboa
Dizon (2001)
The due recognition of an illegitimate child in
a record of birth, a will, a statement before a
court of record, or in any authentic writing, is
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in itself a consummated act of
acknowledgement of the child, and no
further court action is required.
Gono-Javier vs. Court of Appeals, (1994)
Mere possession of status as an illegitimate
child does not make a recognized
illegitimate child but is only a ground for
bringing an action to compel judicial
recognition by the assumed parent.
Herrera v. Alba, (2005)
In assessing the probative value of DNA
evidence, therefore, courts should consider,
among other things, the following data:
a. How the samples were collected,
b. How they were handled,
c. The possibility of contamination of the
samples,
d. The procedure followed in analyzing the
samples,
e. Whether the proper standards and
procedures were followed in conducting the
tests,
f. and the qualification of the analyst who
conducted the tests.
Estate of Rogelio Ong v. Diaz, (2007)
DNA evidence can still be used even after
the death of the parent.
B. Action for Claiming Filiation (Arts. 173
and 175 (2))
The child can bring the action during his or
her lifetime and even after the death of the
parents. The action does not prescribe as
long as he lives.
If the child is a minor, or is incapacitated or
insane, his guardian can bring the action in
his behalf.
IV. Legitimation (Arts. 177 and 182)
(asked in 82, 90, 92, 04 08 and 09 bar
exams)
"Legitimated" children are illegitimate children
who because of the subsequent marriage of
their parents are, by legal fiction, considered
legitimate.
Requisites for legitimation
1. The child was conceived and born outside of
wedlock.
2. General rule: The parents, at the time of the
child's conception, were not disqualified by any
impediment to marry each other.
Exception: RA 9858 - Children born to
parents who were so disqualified only
because either or both of them were below
eighteen (18) years of age at the time of
childs conception may be legitimated.
Grounds for impugning legitimation
1. The subsequent marriage of the child's parents is
void.
2. The child allegedly legitimated is not natural.
3. The child is not really the child of the alleged
parents. (SEMPIO-DIY)
V. Rights of Legitimate and Illegitimate
Children (SSS)
1. Surname
a. Legitimate and legitimated: Surname of
father and mother
b. Illegitimate: uses surname of mother but the
fathers surname may be used if father has
explicitly recognized the child as his (RA
9255, Revilla Law)
2. Succession (asked in 09 bar exams)
a. Legitimate and legitimated: those granted in
Civil Code
b. Illegitimate: the share of a legitimate child
3. Support
a. Legitimate and legitimated: in accordance to
provisions in the family code
b. Illegitimate: entitle to support but support will
come from separate properties of parent.
Republic v. Vicencio, (1998)
A legitimate child's use of the father's
surname is mandatory.
De Asis v. CA, (1999)
Obligation to support a legitimate child
cannot be waived or compromised.
David v. CA, (1995)
Parental authority over an illegitimate child
belongs to the mother.
Tonog v. CA, (2002)
However, this may be temporarily denied to
the mother by reason of her incapacity.
Mossesgeld v. CA, (1998)
The father cannot force the use of his
surname without first establishing legitimacy.
Under RA 9255, only an acknowledgment
by the father is necessary for the use of the
father's surname.
Capote v. CA, (2007)
An illegitimate child already given the
father's surname without the latter's
acknowledgment, must revert to using the
mother's surname.
CIVIL LAW REVIEWER Chapter XI. ADOPTION
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Chapter XI. Adoption
I. R.A. 8552
A. WHO MAY ADOPT
B. WHO MAY BE ADOPTED
II. ADOPTION PROCEDURE UNDER RA 8552
IRR
A. PRE-ADOPTION SERVICES
B. EFFECTS OF ADOPTION
C. RESCISSION OF ADOPTION
D. EFFECTS OF RESCISSION
E. RECTIFICATION OF SIMULATED BIRTHS
III. R.A. 8043: INTER-COUNTRY ADOPTION ACT
OF 1995
A. WHO MAY ADOPT
B. WHO MAY BE ADOPTED
C. WHERE TO FILE APPLICATION
D. DOCUMENTS TO SUPPORT
APPLICATION
E. INTER-COUNTRY ADOPTION BOARD
F. TRIAL CUSTODY
ADOPTION
(Asked in 76, 77, 85, 94, 95, 96, 00, 01, 03,
04, 05, 07, 08 bar exams)
LEGITIMATION ADOPTION
The law merely
makes legal what
exists by nature
The law merely
creates by
fiction a
relation which
did not in fact
exist
Persons
affected
Only natural
children
Generally
applies to
strangers
Procedure Extrajudicial acts of
parents
Always by
judicial decree
Who
applies
Only by both
parents
Husband and
wife adopt
jointly with
exceptions
(RA8552)
Effect Same status and
rights with that of a
legitimate child not
only in relation to
the legitimizing
parents but also to
other relatives
Creates a rel.
only between
the child and
the adopting
parents
I. RA 8552: Domestic Adoption Act of
1998
A. Who May Adopt (Sec.7)
1. Filipino Citizens
a. Of legal age
b. In possession of full civil capacity and
legal rights
c. Of good moral character
d. Has not been convicted of any crime
involving moral turpitude
e. Emotionally and psychologically capable
of caring for children
f. At least sixteen (16) years older than
adoptee, except when adopter is
biological parent of the adoptee or is the
spouse of the adoptees parent
g. In a position to support and care for
his/her children in keeping with the
means of the family
2. Aliens
a. Possession of the same as the
qualifications for Filipinos
b. His/her country has diplomatic relations
with the Philippines
c. Has been living continuously for 3 years
(provided that absences not exceeding
60 days per 1 year for professional,
business, or emergency reasons are
allowed) in RP prior to the filing of
application and maintains such
residence until the decree is entered
d. Has been certified by his/her diplomatic
or consular office or any appropriate
government agency that he/she has the
legal capacity to adopt in his/her country
e. His/her government allows the adoptee
to enter his/her country as his/her
adoptee
f. Has submitted all the necessary
clearances and such certifications as
may be required
**Items numbers c, d and e may be
waived under the following
circumstances:
a. Adopter is a former Filipino Citizen who
seeks to adopt a relative within the 4
th
degree of consanguinity or affinity
b. One who seeks to adopt the legitimate
or illegitimate child of his/her Filipino
spouse
c. One who is married to a Filipino Citizen
and seeks to adopt jointly with his/her
spouse a relative within the 4
th
degree of
consanguinity or affinity of the Filipino
spouse
3. Guardians
With respect to theirs ward after the
termination of the guardianship and
clearance of his/her accountabilities.
Husband and wife shall adopt jointly;
Except
1. if one spouse seeks to adopt the legitimate
child of the other
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2. if one of the spouse seeks to adopt his/her
illegitimate child provided that other spouse
has signified his/her consent
3. if spouses are legally separated from each
other
** if spouses jointly adopt, parental authority
shall be exercised jointly
B. Who May Be Adopted (Sec. 8)
1. Any person below 18 years old who has
been administratively or judicially declared
available for adoption
2. The legitimate child of one spouse by the
other spouse
3. An illegitimate child by a qualified adopter to
improve the childs status to that of
legitimacy
4. 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 child since minority
5. A child whose previous adoption has been
rescinded
6. A child whose biological or adoptive
parent(s) has died, provided that no
proceedings shall be initiated within 6
months from the time of death of said
parent(s)
Consent Necessary for Adoption (Sec. 9)
1. The prospective adoptee if 10 years or older
2. The prospective adoptees biological
parents, legal guardian or the government
instrumentality or institution that has custody
of the child
3. The prospective adopters legitimate and
adopted children who are ten years or over
and, if any, illegitimate children living with
them
4. The spouse, if any, of the person adopting
or to be adopted.
Note: A decree of adoption shall be effective
as of the date the original petition was filed.
It also applies in case the petitioner dies
before the issuance of the decree of
adoption to protect the interest of the
adoptee.
Child to be Adopted Adopter
Biological parent signs a
Deed of Voluntary
Commitment (Rescissible
within 6 months)
Inquiry at DSWD
Voluntary Commitment:
Declaration of Availability
for Adoption
Attendance of DSWD
Adoption Fora and
Seminars (include
counseling) Involuntary Commitment:
(1) Announcement of
Missing Child in
Tri-Media
(2) Declaration of
Abandonment
(3) Declaration of
Availability for
Adoption
Case Study Report Application for Adoption
Case Study Report
Matching
Placement
Supervised Trial Custody
Home Study Report
Recommendation and
Consent
Petition for Adoption
Adoption Decree
II. Adoption Procedure under RA 8552
IRR (Secs. 10-32)
(as discussed in Prof. Elizabeth Pangalangans
class)
A. Pre-Adoption Services
The DSWD shall provide for the following
services:
1. Counseling services for the biological
parents, prospective parents, and
prospective adoptee
2. Exhaust all efforts to locate the biological
parents, if unknown
B. Effects of Adoption (Secs. 16-18)
1. Parental Authority
All legal ties between biological parents and
adoptee are severed, and the same shall be
vested on the adopter, except if the
biological parent is the spouse of the
adopter.
2. Legitimacy
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents
and purposes and shall be entitled to all the
rights and obligations provided by law to
legitimate children born to them without
discrimination of any kind.
3. Succession
Adopter and adoptee shall have reciprocal
rights of succession without distinction from
legitimate filiation, in legal and intestate
succession. If adoptee and his/her biological
parents had left a will, the law on
testamentary succession shall govern.
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C. Rescission of Adoption (Sec. 19)
Adoption, being in the best interest of the child,
shall not be subject to rescission by the
adopter(s).
Adopted may request for rescission, with the
assistance of DSWD, if a minor, or over 18 but
incapacitated, based on the ff grounds:
1. repeated physical and verbal maltreatment
despite having undergone counseling
2. attempt on life of adoptee
3. sexual assault or violence
4. abandonment or failure to comply with
parental obligations
However, the adopter(s) may disinherit the
adopted based on causes as enumerated in Art.
919 of the NCC.
D. Effects of Rescission (Sec. 20)
1. The parental authority of the adoptee's
biological parents, if known, OR the legal
custody of the DSWD shall be restored if the
adoptee is still a minor or incapacitated.
2. The reciprocal rights and obligations of the
adopters and the adoptee to each other
shall be extinguished.
3. The court shall order the Civil Registrar to
cancel the amended certificate of birth of the
adoptee and restore his/her original birth
certificate.
4. Successional rights shall revert to its status
prior to adoption, but only as of the date of
judgment of judicial rescission. Vested rights
acquired prior to judicial rescission shall be
respected.
E. Rectification of Simulated Births (Sec.
22)
A person who has, prior to the effectivity of this
Act, simulated the birth of a child shall not be
punished for such act: Provided,
1. That the simulation of birth was made for the
best interest of the child and that he/she has
been consistently considered and treated by
that person as his/her own son/daughter:
2. That the application for correction of the
birth registration and petition for adoption
shall be filed within five (5) years from the
effectivity of this Act and completed
thereafter:
3. That such person complies with the
procedure for Legal Adoption as specified in
this Act, which includes the Child and Home
Study Report of DSWD to determine if
alleged conditions in the application for
rectification exist, and other requirements as
determined by the Department.
Tamargo v. CA (1992)
Where the petition for adoption was granted
after the child had shot and killed a girl, the
Supreme Court did not consider that
retroactive effect may be given to the decree
of adoption so as to impose a liability upon
the adopting parents accruing at a time
when adopting parents had no actual or
physically custody over the adopted child.
Retroactive effect may perhaps be given to
the granting of the petition for adoption
where such is essential to permit the accrual
of some benefit or advantage in favor of the
adopted child. In the instant case, however,
to hold that parental authority had been
retroactively lodged in the adopting parents
so as to burden them with liability for a
tortuous act that they could not have
foreseen and which they could not have
prevented would be unfair and
unconscionable.
Lazatin v. Campos, (1979)
Adoption is a juridical Act, proceeding in
rem. Because it is artificial, the statutory
requirements in order to prove it must be
strictly carried out. Petition must be
announced in publications and only those
proclaimed by the court are valid. Adoption
is never presumed.
Santos v. Aranzanso, (1966)
Validity of facts behind a final adoption
decree cannot be collaterally attacked
without impinging on that courts jurisdiction.
DSWD v. Belen, (1997)
Participation of the appropriate government
instrumentality in performing the necessary
studies and precautions is important and is
indispensable to assure the childs welfare.
Landingin v. Republic, (2006)
Consents for adoption must be written and
notarized.
Sayson v. CA. (1992)
Adopted children have a right to represent
their adopters in successional interests. (I
dont know the basis for this doctrine but
according to SCRA and my notes, the
decision in this case was: Although an
adopted child shall be deemed to be a
legitimate child and have the same rights as
the latter, these rights do not include the
right of representation. The relationship
created by the adoption is between only the
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adopting parents and the adopted child. It
does not extend to the blood relatives of
either party.)
III. RA 8043: Inter-Country Adoption Act
of 1995
INTER-COUNTRY ADOPTION refers to the
socio-legal process of adopting a Filipino child
by a foreigner or a Filipino citizen permanently
residing abroad where the petition is filed, the
supervised trial custody is undertaken, and the
decree of adoption is issued outside the
Philippines.
A. Who May Adopt (Sec. 9)
Any foreign national or a Filipino citizen
permanently residing abroad who has the
qualifications and none of the disqualifications
under the Act may file an application if he/she:
1. Is at least 27 years of age and at least 16
years older than the child to be adopted, at
the time of application unless the adopter is
the parent by nature of the child to be
adopted or the spouse of such parent
2. If married, his/her spouse must jointly file for
the adoption
3. Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and has
undergone the appropriate counseling from
an accredited counselor in his/her country
4. Has not been convicted of a crime involving
moral turpitude
5. Is eligible to adopt under his/her national law
6. Is in a position to provide the proper care
and support and to give the necessary moral
values and example to all his children,
including the child to be adopted
7. Agrees to uphold the basic rights of the child
as embodied under Philippine laws, the U.N.
Convention on the Rights of the Child, and
to abide by the rules and regulations issued
to implement the provisions of this Act
8. Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed under his/her national
laws
B. Who May Be Adopted (Sec. 8)
1. Only a legally-free child may be the subject
of inter-country adoption.
2. A legally-free child is one who has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with
the Child and Youth Welfare Code.
3. No child shall be matched to a foreign
adoptive family unless it is satisfactorily
shown that the child cannot be adopted
locally.
4. In order that such child may be considered
for placement, the following documents must
be submitted to the Board:
a. Child study
b. Birth Certificate / Foundling Certificate
c. Deed of Voluntary Commitment/ Decree
of Abandonment/ Death Certificate of
parents
d. Medical Evaluation / History
e. Psychological Evaluation, as necessary
f. Recent photo of the child
C. Where to File Application (Sec.10)
Application shall be filed with the Philippine
Regional Trial Court having jurisdiction over the
child, or with the Inter-Country Adoption Board,
through an intermediate agency, whether
governmental or an authorized and accredited
agency, in the country of the prospective
adoptive parents.
D. Application Should Be Supported By
The Following Documents Written And
Officially Translated In English (Sec.
10)
1. Birth Certificate of applicants
2. Marriage Contract and Divorce decree, if
applicable
3. Written consent of their biological or
adoptive children above 10 years of age in
the form of sworn statement,
4. Physical, medical and psychological
evaluation by a duly licensed physician and
psychologist
5. Income Tax Returns or any document
showing the financial capability of the
applicant
6. Police Clearance
7. Character reference from the local
church/minister, applicants employer and a
member of the immediate community who
have known the applicant for at least 5 years
8. Recent postcard-sized pictures of the
applicant and his immediate family
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E. Inter-Country Adoption Board
1. as the central authority in matters relating to
inter-country adoption
2. Ensures that all possibilities for adoption of
the child under the Family Code have been
exhausted and that inter-country adoption is
in the best interest of the child
F. Trial Custody (Sec. 14)
1. The governmental agency or the authorized
and accredited agency in the country of the
adoptive parents shall be responsible for the
trial custody and the care of the child. It shall
also provide for counseling and other related
services.
2. The trial custody shall be for a period of 6
months from the time of placement.
3. It starts upon actual physical transfer of the
child to the applicant who, as actual
custodian, shall exercise substitute parental
authority over the person of the child
4. The adopting parents shall submit to the
governmental agency or the authorized and
accredited agency, which shall in turn
transmit a copy to the Board, a progress
report of the child's adjustment. The
progress report shall be taken into
consideration in deciding whether or not to
issue the decree of adoption.
CIVIL LAW REVIEWER Chapter XII. SUPPORT
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Chapter XII. Support
(asked in 84, 85, 05, 08 bar exams)
I. GENERAL PROVISIONS
A. KINDS
B. CHARACTERISTICS
C. HOW SUPPORT IS GIVEN
II. WHO ARE OBLIGED TO SUPPORT EACH
OTHER
III. PROPERTIES ANSWERABLE FOR SUPPORT
IV. ORDER OF SUPPORT
A. IF THERE ARE MULTIPLE OBLIGORS
B. IF THERE ARE MULTIPLE RECIPIENTS
I. Support
Consists of everything indispensable for
sustenance, dwelling, clothing, medical
attendance, education and transportation, in
keeping with the financial capacity of the
family (Art. 194).
The right and duty to support, especially the
right to education, subsists even beyond the
age of majority (Art. 194).
The amount of support is in proportion to the
means of the provider and the needs of the
receiver, and can be reduced or increased if
such circumstances change (Arts. 201 -
202).
The obligation to give support shall be
DEMANDABLE from the time the person
who has a right to receive the same needs it
for maintenance, but it shall not be
PAYABLE except from the date of judicial or
extra-judicial demand (Art. 203).
When, WITHOUT THE KNOWLEDGE of the
person obliged to give support, it is given by
a stranger, the stranger has the right to
claim the same from the person obliged,
unless it appears that he gave it without
intention of being reimbursed (Art. 206).
When the person obliged to give support
UNJUSTLY REFUSES OR FAILS to give
support when urgently needed, any third
person may furnish support to the needy
individual, with right of reimbursement from
the person obliged to give support. This
particularly applies when the father or
mother of a minor child unjustly refuses to
support or fails to give support to the child
when urgently needed (Art. 207).
Future support cannot be the subject matter
of a compromise; such are void (Art. 2035,
CC).
Refusal to support children or descendants
without justifiable cause is a sufficient
condition for the disinheritance of parents or
ascendants, whether legitimate or
illegitimate (Art. 920, CC).
Unjustified refusal to support ones children
or spouse is a sufficient cause for
disinheriting a spouse (Art. 921, CC).
Spouses are jointly responsible for the
family's support. Support expenses shall be
paid from the CP, or in absence thereof, the
income/fruits of their separate properties, or
in insufficiency/absence of such, from the
separate properties (Art. 70).
___________
A. 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
B. Characteristics of Support (PREVIEW)
1. Personal
2. Intransmissible
3. Not subject to waiver or compensation with
regard to future support
4. Exempt from attachment or execution,
except if support is contractual or given by
will. In such cases, any excess legal support
can be subject to levy on attachment or
execution.
5. Reciprocal on the part of those who are by
law bound to support each other
6. Variable
C. How Support is Given (Art. 204)
1. Payment of the amount;
2. Accepting the recipient in the home of the
provider, unless there is a legal or moral
obstacle from doing so.
II. Who are Obliged to Support Each
Other (Art. 195)
1. Spouses;
2. Legitimate ascendants and descendants;
3. Parents and their children (legitimate and
illegitimate) and the children of the latter
(legitimate and illegitimate);
CIVIL LAW REVIEWER Chapter XII. SUPPORT
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4. Legitimate brothers and sisters, whether of
full or half-blood;
5. Illegitimate brothers and sisters, EXCEPT
when the need for support of one (of age) is
due to a cause imputable to his/her fault or
negligence (Art. 196).
[NOTE: Both legitimate and illegitimate children
are entitled to support.]
III. Properties Answerable for Support
(Art. 197-198)
1. From the separate property of the obligor. If
no separate property, the ACP/CPG (if
financially capable) shall advance the
support, to be deducted from the obligors
share upon liquidation of such regime.
2. Pending legal separation or annulment,
support (pendente lite) for spouses and
children will come from the ACP/CPG. After
final judgment granting the petition, mutual
support obligation between spouses ceases.
(But in legal separation court may order
guilty spouse to give support to innocent
spouse.)
[NOTE: De facto separation does not affect the
ACP, except that the spouse who leaves the
conjugal home without just cause shall not be
entitled to support (Art. 100).]
IV. Order of Support (SDAB)
A. Order of support if there are multiple
obligors (2 or more; Art. 199)
1. Spouses
2. Descendants, nearest in degree
3. Ascendants, nearest in degree
4. Brothers and Sisters
When two or more are obliged to give
support, the payment shall be divided
between them IN PROPORTION to their
resources;
Also, in case of URGENT NEED and by
special circumstances, judge may order only
one obligor to furnish support without
prejudice to reimbursement from other
obligors of the share due from them (Art.
200).
B. Order of priority if there are multiple
recipients (Sempio-Diy)
1. Observe order in Article 199 (SDAB);
2. But if the concurrent obligees are the
spouse and a child subject to parental
authority, the child shall be preferred.
[NOTE: Tolentino says that the above
preference given to a child under parental
authority over the spouse should prevail only if
the person obliged to support pays it out of his
own separate property. So if the support comes
from ACP or CPG, the above rule of preference
for the child does not apply.]
Pelayo v. Lauron, (1909)
Even if the parents-in-law were the ones
who called for the physicians services for
the childbirth of their daughter-in-law, it is
the womans husband who is bound to pay
the fees due to the physician.
Lacson v. Lacson, (1968)
Man is still liable for support in arrears since
the mother advanced it from a stranger (the
uncle of the daughters).
Lacson v. Lacson, (2006)
Acknowledgment of and commitment to
comply with support obligation through a
note in his own handwriting is proof that a
demand was made.
CIVIL LAW REVIEWER Chapter XIII. PARENTAL AUTHORITY
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Chapter XIII. Parental Authority
I. PARENTAL AUTHORITY GENERAL
PROVISIONS
A. CUSTODY
B. OTHER RIGHTS AND DUTIES IN
EXERCISE OF PARENTAL AUTHORITY
II. SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY
III. SUSPENSION OR TERMINATION OF
PARENTAL AUTHORITY
IV. RIGHTS AND DUTIES OF CHILDREN
I. Parental Authority
(asked in 94, 03 and 05 bar exams)
(patria potestas):
Its 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 includes (Art. 209 FC):
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
Rules as to the exercise of parental
authority:
1. The father and the mother shall jointly
exercise parental authority over the persons
of their common children. In case of
disagreement, the father's decision shall
prevail, unless there is a judicial order to the
contrary (Art. 211 FC)
2. If the child is illegitimate, parental authority
is with the mother (Art.176 FC; see also
Chapter 10).
Cases when parental authority and
responsibility may be transferred or
renounced:
Adoption;
Guardianship; or
Commitment of the child in an entity or
institution engaged in child care or in a
childrens home
Characteristics of parental authority:
1. It is a natural right and duty of the parents
(Art. 209 FC)
2. It cannot be renounced, transferred or
waived, except in cases authorized by law
(Art 210 FC)
3. It is jointly exercised by the father and the
mother (Art. 211 FC)
4. It is purely personal and cannot be
exercised through agents
5. It is temporary
________________
A. Custody
Parental Preference Rule
The natural parents, who are of good character
and who can reasonably provide for the child,
are ordinarily entitled to custody as against all
persons (Santos v CA, 1995).
Who exercises authority in cases of death,
absence, remarriage, or separation of
parents
In case one parent is absent or already
dead, the present or surviving parent (Art.
212 FC)
Remarriage shall not affect the parental
authority over the children (Art. 212 FC)
In case of a void/annulled marriage, and
there is no agreement bet. spouses, the
parent designated by the court (Art. 43 FC
par 1; Art. 49 FC).
Innocent spouse gets custody of minor
children in legal separation (Art. 63 FC par
3).
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 (Art. 213 FC par 1).
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.
(Art. 213 FC par 2; Gamboa v. CA, 2007)
Examples of compelling reasons are:
When the mother is insane;
with a communicable disease that might
endanger the life or health of the child;
is maltreating the child; or
has another child by another man who lives
with her. (Cervantes v. Fajardo, 1989)
[NOTE: Prostitution or infidelity to husband does
not make a mother unfit as parent.]
B. Other Rights and Duties in Exercise of
Parental Authority
Rights of Parents upon their children
To have them in their custody (Art. 220 FC
par 1)
To represent them in all matters affecting
their interests (Art. 200 FC par 6)
Demand respect and obedience and impose
discipline on them (Art. 200 FC par 7&8; see
also People v Silvano, 1999)
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Administer the property of a child for her/his
support and education, unless title/transfer
provides otherwise (Art. 226 FC par 1)
Administer the fruits and income (ONLY) of
the childrens property primarily to support
the child and secondarily to use for the daily
needs of the family (Art. 226 FC par 2)
To give or withhold consent on marriage,
pre-nuptial, donation propter nuptias,
adoption, and employment
To disinherit them for just cause
Duties of Parents upon their children
Support and upbringing in accordance to
their means (Art. 220 par 1)
Educate, instruct, and provide them with
moral and spiritual guidance, and love and
understanding (Art. 220 par 3
Defend them against unlawful aggression
Answer for damages caused by their fault or
negligence, and for civil liability for crimes
committed by them (Art. 221 FC)
Give their lawful inheritance
Liability of parents for torts committed by
their minor children (Art. 221 FC; Art. 2180
CC)
Parents and other persons exercising
parental authority are civilly liable for the
torts of their unemancipated children:
Provided they are living in their
company, and
Subject to the appropriate defenses
provided by law, like observing the
diligence of a good father of a family to
prevent the damage (Libi v. IAC, 1992)
If the minor child is, therefore, not living with
the parents but has been entrusted to the
care of other persons, or is an intern in
school, the liability does not apply.
This liability of the parents and those
exercising parental authority over the child is
solidary and primary and direct, not
subsidiary
II. Substitute and Special Parental
Authority
(Asked in 2003 bar exam)
Substitute parental authority exercised by (in
order):
1. The surviving grandparent (Art. 214 FC)
2. Oldest brother or sister, over 21 years old,
unless unfit or unqualified (Art. 216 FC par
2).
3. Childs actual custodian, over 21 years old,
unless unfit or unqualified (Art. 216 FC par
3)
[NOTE: The same order applies to the
appointment of judicial guardian]
Special parental authority exercised by (Art.
218 FC)
1. School, its administrators and teachers, or
2. The individual, entity or institution engaged
in child care.
Substitute
Parental
Authority
Special Parental Authority
It is exercised in
case of death,
absence, or in
case of
unsuitability of
parents.
It is exercised concurrently with the
parental authority of the parents
and rests 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.
St. Marys Academy v. Carpitanos, (2002)
The special parental authority and
responsibility applies to all authorized
activities, whether inside or outside the
premises of the school, entity or institution.
Liability of those exercising special parental
authority over the child (Art. 219 FC)
1. They are principally and solidarily liable
for damages caused by the acts or missions
of the minor child while under their
supervision, instruction or custody.
HOWEVER, this liability is subject to the
defense that the person exercising parental
authority exercised proper diligence.
2. The parents and judicial guardians of the
minor or those exercising substitute parental
authority over the minor are subsidiarily
liable for said acts and omissions of the
minor.
Effects of Parental Authority Upon the
Property of the Child (Art. 225 FC)
The Father and Mother shall jointly exercise
legal guardianship over the property of the
minor child without court appointment
In case of disagreement, the fathers
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
childs property or income
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III. Suspension or Termination of
Parental Authority
Grounds for Suspension of Parental
Authority (CLEBC; Art. 230-31 FC)
1. Conviction of parent for crime punished w/
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
Parental Authority Permanently Terminates
(Art. 228 FC)
1. Upon death of parents
2. Upon death of child
3. Upon emancipation of child
4. If the parents exercising parental authority
has subjected the child or allowed him to be
subjected to sexual abuse (Art. 232 FC)
Termination of parental authority which can
be revived by final judgment (Art. 229 FC)
1. Upon adoption of the child;
2. Upon the appointment of a general guardian
for the child;
3. Upon judicial declaration
IV. Rights and Duties of Children
Art. 356, NCC
parental care
receive at least elementary education
be given moral and civil training by parents
or guardian
live in an atmosphere conducive to his
physical, moral, and intellectual
development
Art. 3, PD603
to be born well
right to a wholesome family life
right to a well-rounded development
right to a balanced diet, adequate clothing,
shelter, proper medical attention, and all
basic physical requirements of a healthy life
raised in an atmosphere of morality and
rectitude
education commensurate to his abilities
full opportunities for a safe and wholesome
recreation
protection against exploitation and other bad
influences
right to the care, assistance and protection
of the State
right to an efficient and honest government
right to grow up as a free individual
Duties of Children:
Art. 357, NCC
obey and honor his parents or guardian
respect old relatives and persons holding
substitute parental authority
exert his utmost for his education and
training
cooperate with the family in matters for his
own good
Art. 4, PD603
strive to live an upright and virtuous life
love, obey, respect his parents and
cooperate with them in strengthening the
family
extend his love to his brothers and sisters
exert his utmost to develop his potentials
CIVIL LAW REVIEWER Chapter XIV. FUNERALS
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Chapter XIV. Funerals
I. General Guidelines
Art. 305, Civil Code. The duty and the right to make
arrangements for the funeral of a relative shall be in
accordance with the order established for support,
under Article 294. In case of descendants of the same
degree, or of brothers and sisters, the oldest shall be
preferred. In case of ascendants, the paternal shall
have a better right.
Art. 306, Civil Code. Every funeral shall be in
keeping with the social position of the deceased.
Art. 307, Civil Code. The funeral shall be in
accordance with the expressed wishes of the
deceased. In the absence of such expression, his
religious beliefs or affiliation shall determine the
funeral rites. In case of doubt, the form of the funeral
shall be decided upon by the person obliged to make
arrangements for the same, after consulting the other
members of the family.
Art. 308, Civil Code. No human remains shall be
retained, interred, disposed of or exhumed without the
consent of the persons mentioned in articles 294 and
305.
Art. 309, Civil Code. Any person who shows
disrespect to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the deceased for
damages, material and moral.
Art. 310, Civil Code. The construction of a tombstone
or mausoleum shall be deemed a part of the funeral
expenses, and shall be chargeable to the conjugal
partnership property, if the deceased is one of the
spouses.
Duty and Right to make funeral
arrangements (in relation to Art. 199 FC)
1. Spouse
2. Descendants in nearest degree
3. Ascendants in nearest degree
4. Brothers and sisters
5. Municipal authorities if there are no
persons who are bound to support or if such
persons are without means
Guidelines in making funeral arrangements
The persons who preferred in the right to
make funeral arrangements may waive the
right expressly or impliedly in which case the
right and duty immediately descend to the
person next in the order
It must be in keeping with the social position
of the deceased.
Law shall prevail over the will of the persons
who have the right to control the burial of
deceased exhumation, evidential purpose,
disposition of corpse by deceased,
mutilation of corpses and autopsies.
Corpses which are to be buried at public
expenses may also be used for scientific
purposes under certain conditions.
Expressed wishes of the deceased is given
priority provided that it is not contrary to law
and must not violate the legal and
reglamentary provisions concerning funerals
and disposition of the remains (time,
manner, place or ceremony)
In the absence of expressed wishes, his
religious beliefs or affiliation shall determine
the funeral rights.
In case of doubt, the persons in Art. 199
shall decide.
Any person who disrespects the dead or
interferes with the funeral shall be liable for
material and moral damages.
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CIVIL LAW REVIEWER Chapter I.

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