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Effect and Application of

Laws

The Civil Code took effect on August 30, 1950
WHEN LAWS TAKE EFFECT
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such
publication. (1a)
Tañada v. Tuvera (1986):
(a) The clause "unless it is otherwise provided" refers
to the date of effectivity and not to the
requirement of publication itself, which cannot in
any event be omitted.
(b) Publication is indispensable in every case, but the
legislature may in its discretion provide that the
usual fifteen-day period shall be shortened or
extended.
(c) EXCEPTION: interpretative regulations and those
internal in nature
IGNORANCE OF THE LAW
Art. 3. Ignorance of the law excuses no one from
compliance therewith. (2)
(a) Conclusive Presumption – That everyone knows
the law, even if they have no actual knowledge of
the law
(b) Mistake of Fact & Difficult Questions of Law These may excuse a party from the legal
consequences of his conduct; but not ignorance
of law.
(c) In specific instances provided by law, mistake as
to difficult legal questions has been given the
same effect as a mistake of fact. (Tolentino)
(d) The laws referred to by this article are those of
the Philippines. There is no conclusive
presumption of knowledge of foreign laws.
(Tolentino)
RETROACTIVITY OF LAWS
Art. 4. Laws shall have no retroactive effect, unless
the contrary is provided. (3)
General Rule: All statutes are to be construed as
having only prospective operation
Exceptions
(1) When the law itself expressly provides
Exceptions to Exception:
(a) Ex post facto law
(b) Impairment of contract
(2) In case of remedial statutes
(3) In case of curative statutes
(4) In case of laws interpreting others
(5) In case of laws creating new rights [Bona v.
Briones (1918)]
(6) Penal Laws favorable to the accused
ACTS CONTRARY TO LAW

Art. 5. Acts executed against the provisions of
mandatory or prohibitory laws shall be void, except
when the law itself authorizes their validity. (4a)
WAIVER OF RIGHTS
Art. 6. Rights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or
good customs, or prejudicial to a third person with a
right recognized by law. (4a)
Waiver – the relinquishment of a known right with
both knowledge of its existence and an intention to
relinquish it. [Portland v. Spillman]
Exceptions:
(1) If the waiver is contrary to law, public order,
public policy, morals or good customs
(2) If the waiver prejudices a third person
(3) If the alleged rights do not yet exist
(4) If the right is a natural right
REPEAL OF LAWS
Art. 7. Laws are repealed only by subsequent ones,
and their violation or non-observance shall not be
excused by disuse, or custom or practice to the
contrary.
When the courts declared a law to be inconsistent
with the Constitution, the former shall be void and
the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution. (5a)
TWO KINDS OF REPEAL OF LAW [Tolentino]
(1) Express or Declared – contained in a special
provision of a subsequent law
(2) Implied or Tacit – takes place when the provisions
of the subsequent law are incompatible or
inconsistent with those of an earlier law.
JUDICIAL DECISIONS
Art. 8. Judicial decisions applying or interpreting the
laws or the Constitution shall form a part of the legal
system of the Philippines. (n)
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(a) Jurisprudence cannot be considered as an
independent source of law; it cannot create law.
(1 Camus 38 as cited in Tolentino)
(b) But the Court’s interpretation of a statute
constitutes part of the law as of the date it was
originally passed since the Court’s construction
merely establishes contemporaneous legislative
intent that the interpreted law carried into effect.
[Senarillos v. Hermosisima (1956)]
DUTY TO RENDER JUDGMENT
Art. 9. No judge or court shall decline to render
judgment by reason of the silence, obscurity or
insufficiency of the laws. (6)
Exception:
This article does not apply to criminal prosecutions
because where there is no law punishing an act, the

case must be dismissed. [Tolentino]
PRESUMPTION AND APPLICABILITY OF CUSTOM
Art. 10. In case of doubt in the interpretation or
application of laws, it is presumed that the
lawmaking body intended right and justice to prevail.
(n)
Art. 11. Customs which are contrary to law, public
order or public policy shall not be countenanced. (n)
Art. 12. A custom must be proved as a fact, according
to the rules of evidence. (n)
LEGAL PERIODS
Art. 13. When the laws speak of years, months, days
or nights, it shall be understood that years are of
three hundred sixty-five days each; months, of thirty
days; days, of twenty-four hours; and nights from
sunset to sunrise.
If months are designated by their name, they shall be
computed by the number of days which they
respectively have.
In computing a period, the first day shall be
excluded, and the last day included. (7a)
POLICY ON LAST DAY BEING A LEGAL HOLIDAY/SUNDAY
(a) If the period arises by statute or orders by the
government, the last day will automatically be
considered the next working day
(b) If the period arises from a contractual
relationship, the act will still be due on that Legal
Holiday/Sunday
APPLICABILITY OF PENAL LAWS
Art. 14. Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in the Philippine territory, subject to the principles of
public international law and to treaty stipulations.
(8a)
EXEMPTIONS UNDER INTERNATIONAL LAW (THEORY OF
EXTRATERRITORIALITY):
(1) When the offense is committed by a foreign
sovereign while in Philippine territory
(2) When the offense is committed by diplomatic
representatives
(3) When the offense is committed in a public or
armed vessel of a foreign country.
CONFLICT OF LAWS
CONFLICT OF LAWS/ PRIVATE INTERNATIONAL LAW
(a) It is a branch or part of Philippine Law which
regulates the application of foreign law within
Philippine jurisdiction in the resolution of cases
involving foreign elements.
(b) It is that part of municipal law which governs
cases involving a foreign element.
(c) Private International Law is more commonly
known in other jurisdictions as conflict of laws
SOURCES

(1) Codes and statutes
(2) Treaties and international conventions

Laws relating to family rights and duties. (9a) Most civil law countries such as the Philippines follow the National Law Theory: It is the nationality or citizenship of the individual. 15 CC: Lex Patriae (2) Art. it is a conflict of laws theory by virtue of which jurisdiction over the particular subject matter affecting a person is determined by the latter’s nationality. 26 (par. [Ellis vs. commentaries.Rules on ordinary contracts (3) Intestate and Testamentary Succession: Intestate and testamentary successions shall be regulated by the national law of the decedent. and studies of learned societies (4) Judicial decisions EXAMPLES OF CONFLICT OF LAW RULES IN THE PHILIPPINES (1) Art. 1251 (par.(3) Treatises. 1) CC: Lex Loci Contractus (5) Art. condition and legal capacity of persons are binding upon citizens of the Philippines. or to the status. 17 (par. 15. which regulates the following: (a) Civil status (b) Capacity (c) Condition (d) Family rights and duties UP COLLEGE OF LAW INTRODUCTION BAR OPERATIONS COMMISSION PAGE 4 (e) Laws on Succession (f) Capacity to succeed According to the Supreme Court.Lex Situs (b) Loan Contract . even though living abroad. Republic (1963)] RULE ON PROPERTY Controlling Law — Lex Situs/Lex Rei Sitae General Rule: Real and Personal Property is subject to the law of the country where it is situated (Art. . 71 CC: Lex Loci Celebrationis (6) Art. 1) FC: Lex Loci Celebrationis (7) Art. 3) CC: Lex Domicili (3) Art. 16) Application of the Doctrine of Lex Situs/Lex Rei Sitae (1) The capacity to transfer or acquire property is governed by Lex Situs. 16 CC: Lex Situs/ Lex Rei Sitae (4) Art. 1306 CC: Lex Loci Intentionis Art. Note: Transfer of property to a foreigner who subsequently became a Filipino citizen shall be recognized [Llantino v Co Liong Chong] (2) The formalities of a contract to convey property are governed by Lex Situs Exceptions to Lex Situs (1) Transactions Not Affecting Transfer of Title or Ownership of Land: Lex Intentionis or Lex Voluntatis (2) Contracts where Real Property Offered as Security: The principal contract is the loan while the mortgage of the land is only an accessory (a) Mortgage .

17) (2) Law of the country in which he is a citizen or subject (lex nationali) [Art. 1039] (a) Order of succession (b) Amount of succession rights (c) Intrinsic validity of the testamentary provisions (d) Capacity to succeed (4) Under a Policy-centered Approach: Forum court is not bound to look to the law of the situs when the situs of the movable property is insignificant or accidental (a) Questions relating to the validity and effect of the transfer of the movable property are governed by the law of the place of principal use (b) Where the issue involves considerations other than the validity and effect of the transfer itself. (Art. 816. Art. governing law is the law of the state which has real interest RULE ON SUCCESSION Extrinsic Validity [Arts.with respect to the following [Art. 817] Foreign Country (Arts. 17. 815-817. 16(2). 818 executed by Filipinos in a foreign country shall not be valid in the Philippines even though authorized by the laws of the country where they were executed. 17) (1) Law of the place in which he resides (lex domicilii) (2) Law of his country (lex nationali) (3) Philippine law (4) Law of the place where they were executed (lex loci celebrationis) Note: Rule re: Joint Wills (1) Joint wills prohibited under Art. 819) . CC] Place of execution Applicable law Filipino Testator Philippines Philippine Law Foreign Country (1) Law of the place where he may be (lex loci celebrationis) [Art 815] (2) Philippine law [see III Tolentino 117] Alien Testator Philippines (1) Philippine Law (Art.

1) (2) Requisites for Reprobate [Vda de Perez v Tolete. and recorded in the proper Regional Trial Court in the Philippines (RULES OF COURT. with respect to the following (Art. 1039) (1) Order of succession (2) Amount of successional rights (3) Intrinsic validity of the testamentary provisions (4) Capacity to succeed Interpretation of Wills Governed by the National Law of the decedent. UP COLLEGE OF LAW INTRODUCTION BAR OPERATIONS COMMISSION PAGE 5 Revocation Testator Applicable Law Will is revoked in the Philippines Philippine Domiciliary Philippine Law Non-domiciliary [Art. 232 SCRA 722] The following must be proved by competent evidence: (a) due execution of the will in accordance with the . Art. It is suggested that it should not be probated if it would affect the heirs in the Philippines. 829] Will is revoked in a Foreign Country Philippine Domiciliary (1) Philippine Law (2) Law of the place of revocation (lex loci actus) Non-domiciliary [Art. Sec. Wills Proved and Allowed in a Foreign Country (1) A will proved and allowed in a foreign country in accordance with the laws of that country may be allowed. filed. Rule 77. Intrinsic Validity Intestate and testamentary successions shall be regulated by the national law of the decedent. the law of the forum (lex fori) governs.(2) Civil Code is silent as to the validity of a joint will executed by an alien in the Philippines. 16(2). 829] (1) law of the place where the will was made (2) law of the place in which the testator had his domicile at the time of the revocation Probate of wills Controlling Law: The probate of a will being essentially procedural in character.

Unjust results when place of making entirely incidental . and other public instruments shall be governed by the laws of the country in which they are executed. Prohibitive laws concerning persons. public order. and that is the law of the country from which the administrator derives his authority. 17 Art. [Art. (11a) RULE ON EXTRINSIC VALIDITY OF CONTRACTS General Rule: Lex Loci Celebrationis The forms and solemnities of contracts xxx shall be governed by the laws of the country in which they are executed [Art. 17(2). 02 BAR EXAMINATIONS) (a) Law of the place where the contract is made (b) Merits (i) Relative ease in establishing (ii) Certainty and stability (c) Demerit .: A contract accepted by letter or cablegram is presumed to have been entered into the place where the offer was made. or by determinations or conventions agreed upon in a foreign country. 17] Note: (1) Contracts Before Diplomatic/ Consular Officials: The solemnities established by Philippine laws shall be observed with respect to contracts executed before diplomatic or consular officials of the Republic of the Philippines in a foreign country [Art.foreign laws (b) the testator had his domicile in the foreign country and not in the Philippines (c) the will has been admitted to probate in such country (d) the laws of the foreign country on procedure and allowance of wills Administration of Estates Territorial: governed by the law of the place where the administration takes place. FC] (2) Contracts entered Into by Letter/ Cablegram. Trusts Extrinsic validity: Rule governing wills apply intrinsic validity: lex situs since a trust involves property cf Art. public policy and good customs shall not be rendered ineffective by laws or judgments promulgated. The forms and solemnities of contracts. and those which have. 17. the solemnities established by Philippine laws shall be observed in their execution. their acts or property. When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country. for their object. etc. 1319(2)] Three possible laws: (1) Lex Loci Contractus (Asked in 95. wills.

Note: To determine where the contract is made. 18. Extrinsic Validity of Marriage (1) Formal Requisites of Marriage under Philippine Law [Art. (2) Lex Loci Solutionis (a) Law of the place of performance governs (b) Merit . consequences. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. terms and conditions as they may deem convenient. such law will be recognized unless there are cogent reasons for not doing so. SPECIAL CONFLICT OF LAW RULES MARRIAGE Definition: Art. and incidents are governed by law and not subject to stipulation. their deficiency shall be supplied by the provisions of this Code.Always connected to the contract in a significant way UP COLLEGE OF LAW INTRODUCTION BAR OPERATIONS COMMISSION PAGE 6 (c) Demerit .when the parties stipulate that the contract be governed by a specific law.Not helpful when the contract is performed in 2 or more states with conflicting laws (3) Lex Loci Intentionis (a) Law intended by the parties (b) Basis: The contracting parties may establish such stipulations. good customs. In matters which are governed by the Code of Commerce and special laws. clauses. or public policy [Art. provided they are not contrary to law. we look to the place where the last act is done which is necessary to bring the binding agreement into being so far as the acts of the parties are concerned. (ii) Implied (a) Based on the contemporaneous and subsequent acts of the parties (b) Often upheld with reference to the rule of validity of contracts which presumes that the parties contemplate to enter into a valid contract Art. morals. FC] (a) Authority of the solemnizing officer (b) Valid marriage license except in the cases provided for in Chapter 2 of Title I (c) A marriage ceremony which takes place with . 1. It is the foundation of the family and an inviolable social institution whose nature. 3. FC. 1306] (c) May be express or implied (i) Express . except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. public order.

shall also be valid in this country. 26. FC [Art. FC) (i) Marriages between collateral blood relatives. 36. FC] (f) Incestuous marriages [Art. 35 (4). whether of the full or half-blood (g) Void marriages for reasons of public policy (Art. 37. FC] (c) Those contracted thru mistake of one contracting party as to the identity of the other [Art. Xxx Art. (iii) Marriages between the adopting parent and adopted child (iv) Marriages between the surviving spouse of the adopting parent and the adopted child (v) Marriages between the surviving spouse of the adopted child and the adopter (vi) Marriages between an adopted child and a legitimate child of the adopter (vii) Marriages between adopted children of the . FC] (d) Those subsequent marriage without recording in the civil registry the judgment of annulment or declaration of nullity. was psychologically incapacitated to comply with the essential marital obligations of marriage. whether legitimate or illegitimate. (2) Determination of Extrinsic Validity Art. 41. whether legitimate or illegitimate. even if such incapacity becomes manifest only after solemnization [Art. up to the 4th civil degree (ii) Marriages between step-parents and stepchildren. 35(5). Hague Convention. FC] (b) Bigamous or polygamous marriages not falling under Art. 2. partition and distribution of properties and the delivery of the children’s presumptive legitimes [Art.the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. FC]: (a) Those contracted by any party below 18 years of age even with the consent of parents or guardians [Art. 35(6). General Rule: Lex Loci Celebrationis Exceptions: The following marriages are void even if valid in the country where celebrated [Art. at the time of the celebration. and (ii) Marriages between brothers and sisters. 35(1). FC. FC] (i) Marriages between ascendants and ascendants of any degree. and valid there as such. FC] (e) A marriage contracted by any party who. 38. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized. Formal requirements for marriage are governed by the law of the state of celebration.

Status. at least insofar as formal validity is concerned (b) Internal Philippine law. (2) Intrinsic requirements of marriage under Philippine Law [Art. which may be their domiciliary or national law. or his or her own spouse. however. it shall be necessary for them before a marriage license can be obtained to submit a certificate of legal capacity to contract marriage. even though living abroad [Art. with the intention to marry the other. 15] (b) When either or both of the contracting parties are citizens of a foreign country. 2. issued by their respective diplomatic or consular officials [Art. nor acquired the necessary dispensation Note: (1) Rule on Proxy Marriages: (a) Proxy marriages. Cases (CR-M3): (a) One of the parties did not freely Consent (b) Spouses were Related. by blood or adoption (c) One of the parties did not have the Mental capacity to consent (d) One of the spouses was already Married (e) One of the parties has not attained the Minimum age. 21. FC] (3) The Hague Convention on Validity of Marriages allows a contracting state to refuse recognition of the marriage in the ff.same adopter UP COLLEGE OF LAW INTRODUCTION BAR OPERATIONS COMMISSION PAGE 7 (viii) Marriages between parties where one. where permitted by the law of the place where the proxy participates in the marriage ceremony. Condition or Legal capacity of persons are binding on citizens of the Philippines. (2) Consular Marriages Marriages between Filipino citizens abroad may . does not sanction proxy marriages. killed that other person's spouse. FC] (c) Marriages enumerated under Art. are entitled to recognition in countries adhering to the lex loci celebrationis rule. Note: (a) Laws relating to Family rights and duties. FC are void even if valid in the country where celebrated. Note: These exceptions put into issue the capacity of the parties to enter into the marriage and therefore relate to the substantive requirement for marriage and is governed by lex nationalii. Intrinsic Validity of Marriage (refers to capacity of a person to marry) (1) Intrinsic validity is determined by the parties’ personal law. 26(2).

the internal law of the state in which the spouses fix their habitual residence (b) Rule under Philippine law [Art.be solemnized by a consul-general. 10. the property regime . personal relations between the spouses include [Arts. Effects of Marriage (1) Personal relations between the spouses (a) Governed by the national law of the parties NOTE: If the spouses have different nationalities. regardless of the place of the celebration of the marriage and their residence. FC] (i) In the absence of a contrary stipulation in the marriage settlements. (ii) Rule is inapplicable: (1) If both spouses are aliens (2) With respect to the extrinsic validity of the contracts affecting property not situated in the Philippines and executed in the country where the property is located (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. FC] (i) mutual fidelity (ii) respect (iii) cohabitation (iv) support (v) right of the wife to use the husband’s family name (2) Property relations (a) The Hague Convention declares that the governing law on matrimonial property is: (i) The internal law designated by the spouses before the marriage (ii) In the absence thereof. UP COLLEGE OF LAW INTRODUCTION BAR OPERATIONS COMMISSION PAGE 8 (c) Doctrine of Immutability of Matrimonial Property Regime: The change of nationality on the part of the husband or wife does not affect the original property regime EXCEPT when the law of the original nationality itself changes the marital regime. hence. 70-71. generally the national law of the husband may prevail as long as it is not contrary to law. 80. consul or vice consul of the Republic of the Philippines [Art. (b) Under Philippine law. customs and good morals of the forum. 68. the property relations of the spouses shall be governed by Philippine laws. FC].

CC] Exception: Art. the same being considered contrary to our concept of public policy and morality. FC 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. only Philippine nationals are covered by the policy against absolute divorces. 15. . provided they are valid according to their national law. shall not be rendered ineffective by laws or judgments.has to change accordingly. the Filipino spouse shall have capacity to remarry under Philippine law Van Dorn v. The reckoning point is not the citizenship of the parties at the time of the celebration of the marriage. [Art. or by determinations or conventions agreed upon in a foreign country. Note: Statutory Bases (a) Laws relating to Family rights and duties. (1985): Owing to the Nationality Principle. Llorente v. but their citizenship at the time a valid divorce is obtained abroad by the alien spouse capacitating the latter to remarry. after he was admitted to US citizenship. Divorce Decrees Obtained by Filipinos General Rule: Decrees of absolute divorce obtained by Filipinos abroad have no validity and are not recognized in Philippine Jurisdiction. Romillo. Jr. is valid and recognized in our jurisdiction as a matter of comity. 26(2). However. Condition and Legal capacity of persons are binding upon citizens of the Philippines. CC] (b) Prohibitive laws concerning persons. their acts or property. 17(3). but later on. public policy and good customs. Court of Appeals (2000): Divorce obtained by Petitioner from his first wife. at the time of the celebration of the marriage were Filipino citizens. DIVORCE AND SEPARATION Rule under the Hague Convention The granting of divorce or separation must comply with the national law of the spouses and lex fori (law of the place where the application for divorce is made). even though living abroad [Art. or to the Status. aliens may obtain divorces abroad. The Filipino spouse should likewise be allowed to remarry as if the other party were a foreigner at the time of the solemnization of the marriage. Orbecido (2005): Paragraph 2 of Article 26 should be interpreted to include cases involving parties who. one of them becomes naturalized as a foreign citizen and obtains a divorce decree. Republic v. and those which have for their object public order.

wilfully or negligently causes damage to another. Human Relations ABUSE OF RIGHT Art. national law is determinative. give everyone his due. Breach of promise to marry is not an actionable wrong.. shall indemnify the latter for the same. provided that it does not violate a strongly held policy of the Philippines.Validity of Foreign Divorce Between Foreigners (1) A foreign divorce will be recognized in all contracting states if. But to formally set a wedding and go through all the above-described preparation and publicity. ACTS CONTRA BONUS MORES Art. 20. and observe honesty and good faith. ANNULMENT AND DECLARATION OF NULLITY Jurisdiction to Annul (1) Vested in the court of the domicile of the parties (2) Jurisdiction over the non-resident defendant is not essential Governing Law (1) Lex loci celebrationis —determines the consequences of any defect as to form (2) In general. (b) both spouses were nationals of that state. contrary to law. Every person who. [De Jesus vs. act with justice. is quite different. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals. in the exercise of his rights and in the performance of his duties. Velez (1964): Mere breach of promise to marry is not an actionable wrong. This is palpably and unjustifiably contrary to good customs for which defendant must be held . good customs or public policy shall compensate the latter for the damage. UP COLLEGE OF LAW INTRODUCTION BAR OPERATIONS COMMISSION PAGE 9 ACTS CONTRARY TO LAW Art. Every person must. 19. or (c) if only the petitioner was a national. 21. he should have his habitual residence there (2) While there is no provision of law requiring Philippine courts to recognize a foreign divorce decree between non-Filipinos such will be recognized under the principle of international comity. 58 Phil. 866] BUT damages may be recoverable Wassmer v. Syquia. at the date of the institution of the proceedings (Hague Convention on the Recognition of Divorce and Legal Separation): (a) either spouse had his habitual residence there. the same applies with reference to substantive or intrinsic validity. only to walk out of it when the matrimony is about to be solemnized. But with regard to capacity of the parties to marry.

acquires or comes into possession of something at the expense of the latter without just or legal ground. maintaining intimate sexual relations with appellant. 22. Juridical Capacity Capacity to Act Fitness of man to be the subject of legal relations Power to do acts with legal effect Passive Active Aptitude for the Holding and Enjoyment of rights Aptitude for the Exercise of rights Inherent in every natural person Must be acquired Lost upon death Lost through death and other causes Can exist without . Every person who through an act of performance by another. or any other means. Court of Appeals (1993): Article 21 may also be applied in a breach of promise to marry where the woman is a victim of moral seduction. Art. shall return the same to him. is inherent in every natural person and is lost only through death. which is the power to do acts with legal effect. Juridical capacity. 37. with repeated acts of intercourse is incompatible with the idea of seduction. 2154 (Solutio Indebiti) Not necessarily a mistake in payment Payment should be made by mistake UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 10 Persons and Personality CAPACITY TO ACT CIVIL PERSONALITY Art. is acquired and may be lost.answerable in damages in accordance with Article 21 aforesaid. PRINCIPLE OF UNJUST ENRICHMENT Art. Baksh vs. Capacity to act. Court of Appeals (1966): The conduct of a woman of adult age. Award of damages pursuant to Article 21 is justified not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her honor and reputation which followed thereafter. 22 (Accion in Rem Verso) Art. Tanjanco v. which is the fitness to be the subject of legal relations.

prodigality. Capacity to act is not limited on account of religious belief or political opinion. 1426] (7) Minor has no right to recover voluntarily paid sum or delivered thing. 39. Effects on Contracts (1) They cannot give consent to a contract [Art. 1390(1)] (3) A contract is unenforceable when both of the parties are minors (incapable of giving consent) [Art. prodigality and civil interdiction are mere restrictions on capacity to act. The following circumstances. other codes. twenty-one years of age or over. A married woman. Art. Minority. (1918): . alienage. 1399] (6) Minor has no right to demand the thing/price voluntarily returned by him [Art. RESTRICTIONS ON CAPACITY TO ACT Art. penalty. 1403(3)] (4) Minority cannot be asserted by the other party in an action for annulment [Art. Espiritu. as when the latter arise from his acts or from property relations. modify or limit capacity to act: age. and in special laws. among others. 1489] Mercado v. insolvency and trusteeship. 1327 (1)] (2) A contract where one of the parties is a minor is voidable [Art. family relations. the Rules of Court. the state of being a deaf-mute. the existence of the latter implies that of the former. if consumed in good faith [Art. insanity or imbecility. Minority RA 6809 (1989): An act lowering the age of majority from twenty-one to eighteen years. such as easements. 38. and do not exempt the incapacitated person from certain obligations.capacity to act Must exist with juridical capacity Cannot be limited or restricted May be restricted or limited Note: Juridical capacity can exist even without capacity to act. 1397] (5) Not obliged to make restitution except insofar as he has been benefited [Art. General rule: Incapacitated persons are not exempt from certain obligations arising from his acts or property relations. imbecility. absence. except in cases specified by law. is qualified for all acts of civil life. insanity. 1427] (8) Must pay reasonable amount for necessaries delivered to him [Art. The consequences of these circumstances are governed in this Code. the state of being a deaf-mute.

Braganza v. FC] (2) Action for annulment of marriage must be filed by the sane spouse who had no knowledge of the other’s insanity. or by any relative/guardian of the insane before the death of either party. (active misrepresentation done by minors). feeble-mindedness). Maramba. FC] State of Being Deaf-Mute (1) Cannot give consent to a contract if he/she also does not know how to write (Art. CC) . 1399). Effects on Marriage (1) May not yet contract marriage [Art. 45(2). (2) Marriages. 1403) as to the minor. FC] Insanity Insanity includes many forms of mental disease. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 11 Effect on Contracts (1) Incapacity to give consent to a contract [Art. 1399] (4) Voidable if one of the parties is insane [Art. provided: he must personally read the will. 5. 1327(2)] (2) Contracts entered into during lucid intervals are valid [Art. either inherited or acquired. freely cohabited with the other [Art. 807. A person may not be insane but only mentally deficient (idiocy. even with the consent of parents/guardians.Estoppel works against minors who misrepresent their ages in a contract and are compelled to comply with its terms. the contract is voidable (Art. imbecility. 1390] (5) Unenforceable if both of the parties are insane (Art. or by the insane spouse during a lucid interval or after regaining sanity [Art. CC) (3) Cannot be a witness to the execution of a will (Art. 47(2). 820. (1928): When a minor made no active misrepresentation as to his minority and such minority is known to the other party. FC]. 1328] (3) Restitution of benefits [Art. 1403 (3)) Effect on Crimes (1) General rule: EXEMPTED from criminal liability (2) Exception: Acted during lucid interval Effect on Marriage (1) May be annulled if either party was of unsound mind unless the such party after coming to reason. CC) (2) Can make a valid WILL. Villa Abrille. The contents of the same have either been read personally by him or otherwise communicated to him by 2 persons (Art. (1959): Minors are obliged to make restitution insofar as they have been benefited (Art. Bambalan v. 35. are VOID [Art. 1327(2). where one of the parties is below 18.

41. brothers/sisters. who. 1490] Absence . RPC] (2) Mitigating circumstance if acted in the immediate vindication of a grave offense/felony committed against his spouse. ascendants. the participation of the guardian shall be indispensable (Art. idleness or debauchery of any kind shall so spend. by excessive drinking. RPC] (3) Incestuous and void marriages: (a) Between ascendants and descendants of any degree. Note: It is not the circumstance of prodigality. whether full or half-blood. (b) Between brothers and sisters. [Art. of the right to manage his property and of the right to dispose of such (Art. FC] (4) Donations/grants of gratuitous advantage between spouses during the marriage shall be VOID. 34. FC] (6) Spouses cannot sell property to each other. gambling. against his parents and grandparents (a) UNLESS: crime was against the descendant OR by one parent against the other [Art. (1902): A spendthrift or a prodigal is “a person. FC] (5) Descendants cannot be compelled to testify in a criminal case. of marital authority. and other relatives up to the 4th civil degree [Art. 11(2). 37. Civil interdiction (1) It is an accessory penalty imposed upon persons who are sentenced to a principal penalty not lower than reclusion temporal (Art. except: (a) Absolute separation is agreed upon in the marriage settlements (b) Judicial separation of property [Art. 215.(4) Voidable if one of the parties is deaf-mute and does not know how to write (5) Unenforceable if both of the parties are deafmutes and does not know how to write Prodigality Martinez v. waste or lessen his estate as to expose himself or his family to want or suffering. 13(5). RPC) (3) For the validity of marriage settlements. Martinez. 87. RPC). or guardianship. but the fact of being under guardianship that restricts capacity to act. except moderate gifts during family occasions [Art. ascendants or relatives of the same civil degree [Art.” The acts of prodigality must show a morbid state of mind. descendants. 123) Family relations (1) Justifying circumstance if acted in defense of person/rights of spouse. (2) Offender is deprived of rights of parental authority.

sole powers of administration may be assumed by the other spouse. 3. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. The following shall be presumed dead for all purposes. an absence of five years shall be sufficient in order that his succession may be opened. After an absence of seven years. and has been missing for four years. 40]. it being unknown whether or not the absentee still lives. 2nd clause] with the following circumstances: Intra-Uterine Life When Considered Born 7 months or more Alive upon delivery Less than 7 months Alive only after completion of 24 hours from delivery Birth = complete removal of the fetus from the mother’s womb. husband’s decision shall prevail. FC: (1) Administration and enjoyment of the CPG shall belong to both spouses jointly. subject to recourse to the court by the wife for proper remedy (within 5 years from date of contract implementing such decision) (3) If one spouse is incapacitated/unable to administer. A person in the armed forces who has taken part in war. he shall be presumed dead for all purposes. provided it be born later” [Art. Death extinguishes civil personality [Art.Art. (4) General Rule: This power does not include disposition/encumbrance. Birth General Rule: Birth determines personality [Art. 2. 40. A person who has been in danger of death under other circumstances and his existence has not been known for four years. a fetus is merely part of the mother’s internal organs. (n) UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 12 Art. . 42]. or an aeroplane which is missing. If he disappeared after the age of seventy-five years. who has not been heard of for four years since the loss of the vessel or aeroplane. 390. except for those of succession. Article 124. Exception: A “conceived child shall be considered born for all purposes that are FAVORABLE to it. including the division of the estate among the heirs: 1. 391. Exception: Judicial authority or written consent of other spouse. before birth. (2) In case of disagreement. A person on board a vessel lost during a sea voyage. Personality of Conceived Child (1) Limited = only for purposes FAVORABLE to it.

the other . The effect of death upon the rights and obligations of the deceased is determined by law. 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). 43 with Rule 131. Period of Conception = the first 120 days of the 300 days preceding the birth of the child. whoever alleges the death of one prior to the other. Civil personality is extinguished by death. by contract and by will Criminal liability ends with death BUT civil liability may be charged against the estate [People v. 3 (jj). Art. The statutory presumption of Article 43 was not applied due to the presence of a credible eyewitness as to who died first [Joaquin v. 42. Sec. wreck. Art. (1981)].(2) Conditional = it depends upon the child being born alive later. If there is a doubt. It can inherit by will or by intestacy. shall prove the same. (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 mother’s womb. 3 (jj) Only use the presumptions when there are no facts to get inferences from Only use for succession purposes Cannot be used for succession purposes In any circumstance Only during death in calamities. Tirol. A conceived child can acquire rights while still in the mother’s womb. Complete respiration = test/sign of independent life Death Art. (1948)] Compare Art. in the absence of proof. as to which of them died first. 43.) Age Presumed Survivor Both under 15 Older Both above 60 Younger One under 15. presumption of Survivorship. Sec. battle or conflagration UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 13 Presumption of Survivorship in the Rules of Court (Rule 131. No damages can be claimed in behalf of the unborn child. 3. sec. as between two or more persons who are called to succeed each other. 43 Rule 131. Navarro. it is presumed that they died at the same time and there shall be no transmission of rights from one to the other. Geluz v CA. (jj.

residence is temporary and may be changed anytime (there is no necessary intent to remain). consequences. 50] FOR JURIDICAL PERSONS: The place where their legal representation is established. (3) Domicile by Operation of Law (i. the other between those ages One between 15 and 60 DOMICILE AND RESIDENCE OF PERSON FOR NATURAL PERSONS: The place of their habitual residence [Art. 1988. unless there is a law or other provision that fixes the domicile [Art.. (b) A 3rd requisite is necessary – intention not to return to one’s domicile as his permanent place. Article 69. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. (Romualdez-Marcos vs. RESIDENCE While domicile is permanent (there is intent to remain). 1 Art. Marriage REQUISITES NATURE OF MARRIAGE.domicile of parents of a person at the time he was born. Comelec (1995)) Family Code The Family Code took effect on August 3. except that marriage settlements may fix the property relations . REQUISITES OF DOMICILE [Callejo v.above 60 One under 15 Both over 15 and under 60. It is the foundation of the family and an inviolable social institution whose nature. same sex Older One under 15 or over 60.e. FC. changing his domicile of origin. ART. 51] DOMICILE VS. 1. (2) Domicile of Choice (a) Domicile chosen by a person. Vera] (1) Physical Presence in a fixed place (2) Intent to remain permanently (animus manendi) KINDS OF DOMICILE (1) Domicile of Origin . domicile of minor) (a) A married woman does not lose her domicile to her husband. and incidents are governed by law and not subject to stipulation. different sexes Male Both over 15 and under 60. or where they exercise their primary functions.

(2) Formal Requisites (Art. Silverio v Republic. Note: The best source for citing the requirement (of male/female) is still statutory. (1973): Application for marriage license was denied since marriage is defined by law as a contract entered into between a man and a woman. (1927): A marriage entered into by a person whose real intent is to avoid prosecution for rape is void for total lack of consent. who must be a male and a female (b) Consent (of the parties) freely given in the presence of a solemnizing officer. KINDS OF REQUISITES (1) Essential Requisites (Art. Dept. Guerra (1964): There was no reasonable and well-grounded fear of an imminent and grave evil . 3) (a) Authority of solemnizing officer (b) A valid marriage license (c) Except: Marriages in articulo mortis or when one or both parties are at the point of death (d) Marriage Ceremony: (i) Appearance of contracting parties in the presence of a solemnizing officer (ii) Personal declaration that they take each other as husband and wife in the presence of not less than 2 witnesses EFFECT OF ABSENCE OF REQUISITES Absence Defect or Irregularity Effect Void Voidable ESSENTIAL REQUISITES Age Legal Capacity [Art.during the marriage within the limits provided by this Code. Eigenmann v. as provided explicitly in the Family Code. He merely used such marriage to escape criminal liability. (2007): Changing of gender in one’s birth certificate was denied. 38 (marriage against public policy). otherwise. Consent freely given People v. the right to marry includes the right to choose who to marry. may contract marriage. (2003): Same-sex couples should not be denied the same benefits as heterosexual couples. Santiago. The accused did not intend to be married. 5] Male or female 18 years old and above. not under any impediments mentioned in Art. 37 (incestuous marriage) & Art. of Public Health. 2) (a) Legal Capacity of the contracting parties. 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. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 14 Must be male and female Jones v Hallahan. Goodridge v.

(Art. [Martinez v Tan. Rabbi. 3] (3) Presence of at least two witnesses of legal age. chapel. 7] (2) Priest. 6] Note: In a marriage in articulo mortis. [Art. 6. consul. it shall be sufficient for one of the witnesses to write the name of said party. . Ceremony Marriage Ceremony No prescribed form or religious rite for the solemnization of marriage is required. when one or both parties are unable to sign the marriage certificate. 3] (2) Personal declaration that they take each other as husband and wife. still counts as a valid ceremony. (1909)] Minimum requirements prescribed by law: (AP-PMS) (1) Appearance of contracting parties personally before the solemnizing officer [Art. Who may solemnize marriages Who may solemnize marriage: (JC-SPAMM) (1) Incumbent member of the Judiciary within his jurisdiction. [Art. par. Non-compliance with this requirement does not invalidate the marriage (premise: more witnesses = more people can notify officer of impediments to marriage). Imam or Minister of any Church or Religious Sect. father-in-law’s words were merely an admonition typical of concerned parents. signed by them before a judge and two capable witnesses. or temple (3) Office of the consul-general. which shall be attested by the solemnizing officer. [Art. even though it was independently made by them. 3] (4) The declaration shall be contained in the Marriage certificate.upon him or his property. Must be: (a) Duly authorized by his church or religious sect (b) Registered with the civil registrar general (c) Acting within the limits of the written authority granted to him by his church or religious sect. 2) Places where marriage SHALL be publicly solemnized: (CCO) (1) Chambers of the judge or in open court (2) Church. [Art. 29] (2) Where both parties request in writing that marriage be solemnized at a place designated by them. or viceconsul [Art. [Art. [Art. 6) The couple's written agreement where they declare themselves as husband and wife. 8] Exceptions: (1) Marriages performed in articulo mortis or in remote places. (Art. 6] (5) Marriage certificate shall be Signed by the contracting parties and their witnesses and attested by the solemnizing officer.

Also. 21] Exceptions (1) Marriage in articulo mortis [Art. [Art. automatically cancelled at the expiration of such period. instead of cert. 21] Stateless persons or refugees from other countries: affidavit stating circumstances showing capacity to contract marriage. Domagtoy (1996)] Respondent judge was faulted for solemnizing a marriage outside his territorial jurisdiction. 31] (4) A Military commander of a unit may solemnize marriages in articulo mortis between persons within the zone of military operation. 7] (3) Ship Captain or Airplane Chief may solemnize a marriage in articulo mortis between passengers or crew members [Art. (Art. consul or vice-consul may solemnize marriages between Filipino citizens abroad. 32) (5) Consul-general.License valid in any part of the Philippines for 120 days from date of issue.Each contracting party should file separately. 7. of legal capacity [Art. 7.Issued by local registrar of city or municipality where either contracting party habitually resides Article 11 . 10) (6) Municipal and City Mayors (LGC sec.(d) At least one of the contracting parties belongs to the solemnizing officer’s church or religious sect. 35 (1) 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. 7. Foreign National When either or both parties are foreign nationals: Certificate of legal capacity to contract marriage. 444 and 455) Exceptions – Art. 35 (2)] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 15 (2) Absence & Irregularity of Authority of a solemnizing officer Lack of valid notification of both parties desiring a ceremony in a remote place was held to be only a mere IRREGULARITY [Navarro vs. [Arañes v. shall be submitted before a marriage license can be obtained [Art. 27] (a) The marriage may be solemnized without the . (Art. [Art. Occiano (2002)] License required General Rule: License required Article 9 . Article 20 . presentation of the marriage license subsequent to the solemnization of marriage will not cure the defect. issued by a diplomatic or consular official.

Things to do at the local civil registrar: (1) File an application of marriage license at the proper local civil registrar. 33] (6) Marriage by parties who have Cohabited for at least 5 years without any legal impediment to marry each other. present parental consent. a valid marriage license must be presented first. Borromeo (1984): Non-existence of a marriage contract does not invalidate the marriage as long as all the requisites for its validity are properly complied with. rites or practices. (3) The fact of absence of legal impediment between the parties must be present at the time of marriage. (2) The parties must have no legal impediment to marry each other. 31] (3) Persons within a military zone [Art. (b) It remains valid even if ailing party survives. Badayog (2000)] Requisites for the 5-year cohabitation to be valid for the exemption from acquiring a marriage license (1) The man and woman must have been living together as husband and wife for at least five years before the marriage. 12] (3) If aged 18-21 years. Ninal vs. People v. otherwise. and (5) The solemnizing officer must execute a sworn statement that he had ascertained the qualifications of the parties and that he had found no legal impediment to their marriage. [Borja-Manzano vs. (2) Between passengers or crew members in a ship or airplane [Art. (4) The parties must execute an affidavit stating that they have lived together for at least five years [and are without legal impediment to marry each other]. Judge Sanchez (2001)] Marriage certificate Absence and irregularity of marriage license and contract Republic v. [Art. CA and Castro (1994): Issuance of the Civil Registrar of a Certificate of Due Search and Inability to Find the application of a marriage license certifies the license’s inexistence.necessity of a marriage license. 11] (2) Present birth or baptismal certificate for proof of age. Bernabe (1995): Before a marriage can be solemnized. the marriage is VOID. [Art. 28] (5) Marriages by Muslims and Ethnic cultural minorities provided they are solemnized in accordance with their customs. Moreno v. thus rendering the marriage VOID. 32] (4) Marriage in Remote and inaccessible places [Art. . [Art. [Art. 34.

37] (7) Marriage void for reasons of public policy [Art. (Art. 35 (6)] (5) Psychological incapacity [Art.[Art. 21) Marriage Certificate Where parties declare that they take each other as husband and wife. contains the ff: (1) Full name. 22] Note: Not an essential or formal requisite without which the marriage will be void [Madridejo v. de Leon (1930)] Best evidence that a marriage does exist. [Tenebro v. 14] (4) If aged 21-25. if any [Art. CA (2004)] EFFECT OF MARRIAGES CELEBRATED ABROAD AND FOREIGN DIVORCE MARRIAGES CELEBRATED ABROAD General Rule: Marriages solemnized abroad in accordance with the laws in force in that country shall be valid in the Philippines. religion. present certificate of legal capacity issued by diplomat or consular officials. sex. [Art. 38] Essential requisites Formal requisites Inherent in the parties. 36] (6) Incestuous marriages [Art. 15] (5) If aged 18-25. [Art. 35(1)] (2) Bigamous or polygamous marriage [Art. [Art 26] Exceptions: (1) Marriage between persons below 18 years old [Art. present certificate of marriage counseling from your priest. 35 (5)] (4) Marriages void under Article 53 [Art. 16] (6) (PD 965) Attend family planning seminar or get a brochure regarding family planning (7) Pay the required fees. carried everywhere Requirements independent of the parties Lex Nationalii – Laws relating to family rights and duties. habitual residence (3) Date and precise time of celebration of marriage (4) That marriage license was properly issued (except in marriages exempt from ML req’t) (5) That parental consent was secured. 35(4)] (3) Mistake in identity [Art. age of party (2) Citizenship. [Art 19] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 16 (8) If foreigner. when required (6) That requirement as to parental advice was complied with. when required (7) That parties have entered into marriage settlements. present parental advice. or to the .

will not be recognized Foreign marriages may be void under Phil law due to absence of a formal requisite under foreign laws. Quita v. forms of contracting marriage are to be regulated by the law where it is celebrated. Since H was no longer a Filipino citizen when he divorced W. the nationality principle did not apply to him anymore and the divorce is valid. (Art. 26. Since the divorce and the naturalization of W occurred within the same year.status. Garcia v. Essential requisites Formal requisites abroad (Art 15. Romillo (1985): A divorce obtained by the foreign spouse in accordance with the said spouse’s national law is recognized in the Philippines and releases Filipino spouse from their marriage. (2) If the foreign spouse obtains a valid foreign divorce. 26) Van Dorn v.if valid where celebrated. CA (2000): Citizenship at the time the divorce is obtained determines its validity. the case was remanded to determine which occurred first. Dandan (1998): The citizenship of the spouses at the time of the divorce determines their capacity to obtain a valid divorce. condition. even if valid under foreign laws. PROOF OF FOREIGN MARRIAGE in order that it may be upheld: (1) Provisions of the foreign law (2) Celebration of the marriage in accordance with said provisions FOREIGN DIVORCES (1) Those obtained by Filipino citizens are void under Philippine law. then valid everywhere. Recio (2001): A divorce decree obtained by the foreign spouse is . and legal capacity of persons are binding upon Phil citizens even though living Lex loci celebrationis. CC) (Art. Llorente v. the Filipino spouse shall have capacity to remarry under Philippine law. CC) Foreign marriages void under Phil law due to lack of an essential requisite.

Art. 5: Any male or female of the age of eighteen years or upwards not under any of the impediments mentioned in Articles 37 and 38. even in the TOTAL ABSENCE of a marriage license. – (1) Marriage where any party is below eighteen years of age even with the consent of parents or guardians (2) Marriage 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. and (3) birth and baptismal certificates of children born during the union. De Jacob v CA (1999)] (4) If a marriage certificate is missing. [Sec. the following would constitute competent evidence: (1) the testimony of witnesses to matrimony. the existence of the marriage is presumed. and all means HAVE NOT YET BEEN EXHAUSTED to find it. 3 (aa). then the marriage is presumed to exist [Sevilla v Cardenas (2006)] Absence of a marriage certificate is not proof of absence of marriage. To prove the fact of marriage. CC] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 17 (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. except as stated in Article 35 (a).recognized under Phil law if it is executed in accordance with the foreigner’s national law. . The party must prove divorce as a fact and that said divorce is obtained in conformity with the law allowing it. [Vda. 35]. (2) the couple’s public cohabitation. before the Philippine courts can take judicial notice. Void from the Beginning [Art. 4(1): The absence of any essential or formal requisites shall render the marriage void ab initio. may contract marriage. [Trinidad v CA (1998)] VOID MARRIAGES Type of Void Marriages (1) Absence of any formal/essential requisites (2) Psychologically Incapacitated spouse (3) Incestuous Marriages (4) Marriages contrary to public policy (5) Void subsequent marriages Absence of Requisites Art. VOID AND VOIDABLE MARRIAGES PRESUMPTION OF MARRIAGE (1) Presumption in favor of a valid marriage [Art 220. Rule 131. ROC] (3) In marriages of exceptional character.

(1997): (1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. while not controlling/decisive. and 225 of the same Code in regard to parents and their children. should be given great respect by our courts. 52) Psychological incapacity Contracted by any party who. (b) alleged in the complaint. and not of law. (8) The trial court must order the prosecuting attorney or fiscal and the Solicitor General to appear as counsel for the state. Tsoi v. (3) Marriage solemnized without a valid marriage license. 221. (5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. at the time of the celebration. Molina.Note: One’s belief in good faith that the solemnizing officer has the required authority is a mistake of fact. (4) Such incapacity must also be shown to be medically or clinically permanent or incurable. and incurability. (2) The root cause of the psychological incapacity must be: (a) medically or clinically identified. even if such incapacity becomes manifest only after its solemnization [Art. (1995): Laid down 3 characteristics for determining psychological incapacity: gravity. No decision shall be handed down unless the Solicitor General issues a certification. (d) clearly explained in the decision. (7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines. 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 (Non-compliance with Art. CA. 36] Republic v. (c) sufficiently proven by the experts. Santos v. (3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage. was psychologically incapacitated to comply with the essential marital obligations of marriage. (1997): Refusal of husband to have sex was interpreted to be . Bedia-Santos. (6) 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. antecedent. except in marriages under exceptional circumstances (4) Bigamous or polygamous marriages not falling under Article 41 (Art.

adopted with illegitimate child of the adopter. (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. San Jose (2007): There is no requirement that the respondent be medically examined first. legitimate or illegitimate. Incestuous marriages Article 37 (Incestuous): (1) Between ascendants and descendants of any degree. Reyes. “A man who can but won’t is PI” UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 18 Marcos vs. (8) Between adopted children of the same adopter. with the intention to marry the other. Note: Stepbrothers and stepsisters can marry because marriages between them are not among those enumerated in Article 38. stepbrother with stepsister. Personal medical examination could be dispensed with. Molina guidelines met. (2) Between step-parents and step-children. (7) Between an adopted child and a legitimate child of the adopter. Marcos (2000): Psychological incapacity maybe established by the totality of the evidence presented. legitimate or illegitimate Against Public Policy Article 38 (Against Public Policy): (1) Between collateral blood relatives. (4) Between adopting parent and adopted child. parties who have been convicted of adultery Void subsequent marriages Article 40 (No Judicial Declaration of Nullity) A person entered into a subsequent marriage without first getting a judicial declaration of nullity of the first void marriage Article 41 (Presumptive Death) Failure of the present spouse to obtain a judicial declaration of presumptive death before entering a subsequent marriage Article 44 (Bad Faith of both spouses) . up to the fourth civil degree.PI. Republic vs. (3) Between parents-in-law and children-in-law. adopted son of the husband with adopted daughter of the wife. guardian with ward. Antonio v. whether of the full or half blood. 37 and 38 which are not impediments to marriage: brother-in-law with sisterinlaw. legitimate or illegitimate (2) Between brothers and sisters. (9) Between parties where one. Relationships outside of Art. (2006): “Pathological liar” considered as psychological incapacity. killed that other person's spouse. or his or her own spouse.

Article 40 was interpreted as being a requirement for purposes of remarriage but not limited for that purpose. Atienza v. 40. Mendoza (1954)] Terre v. 40 referred to validating . the same shall not affect third persons. otherwise. Cantero. the requirement of Art. Brillantes (1995)) (2) Must comply with the requirements of Art. If there is no Judicial Declaration of Nullity. Previous marriage declared void ab initio or annulled Art.Both spouses entering a subsequent marriage after presumptive death. In order to have a subsequent marriage: (1) The previous marriage should be judicially declared void or annulled (final judgment) (Terre v. there was no need for a judicial declaration of nullity of a previous marriage for a subsequent marriage to be valid [People v. the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property. 40 still applies for his subsequent marriage contracted in 1991. the requirement for a judicial declaration of nullity in Art. Domingo v. who acted in bad faith Article 53 (Non-Recording): Subsequent marriage of spouses. 52 have not have been complied with. Terre. (1993): The judicial declaration of nullity can be invoked for purposes other than remarriage. Art. CA. Brillantes. (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. Terre (1992). Separation of property is also a valid purpose for filing for a judicial declaration of nullity. 40 does not apply to the second marriage where a right is already vested and which the FC cannot have retroactive effect. where the requirements of recording under Art. The word “solely” in Art. (1995): Even if the judge’s first marriage contracted in 1965 was void for not having a marriage license. 52. shall be null and void. (1997): Where both marriages were contracted prior to the effectivity of the FC. 52 Under the Civil Code (superseded by the Family Code). The judgment of annulment or of absolute nullity of the marriage. subsequent marriage void for being bigamous. Atienza v. 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. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 19 Apiag v.

CC]: (a) ON BOARD VESSEL lost at sea voyage. There must also be a summary judgment. (c) The spouse present had a well-founded belief that the missing person is dead. existence not known Notes: (1) Institution of a summary proceeding is not sufficient. These diligent efforts correspond to the requirement of the law for a well-founded belief. (b) There is danger of death under the circumstances set forth in the provisions of Art. Sanchez. (b) The spouse present had a well-founded belief that absent spouse is dead. 391 CC attendant to the disappearance. 34 merely exempts the spouses from obtaining a marriage license. Effect of Reappearance of Absent Spouse General Rule: The subsequent marriage remains valid. (Bienvenido case) (3) There must have been diligent efforts on the part of the deserted spouse to locate the absent spouse. and (d) 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) Absent spouse had been missing for 2 consecutive years. (2001): Legal separation does not severe marital bonds. Cohabitation under Art. and is not met when there exists legal impediment to marry during the period of cohabitation. 41]: (1) Subsequent marriage due to ordinary absence where: (a) Absent spouse had been absent for 4 consecutive years. Subsequent Marriage when one spouse is absent Requirements for Subsequent Marriage to be Valid When Prior Spouse is Absent [Art. Exception: It is automatically terminated by the recording of the affidavit of reappearance of the . 391.subsequent marriages but NOT to limiting the purposes for which a judicial declaration of nullity can be invoked. (b) ARMED FORCES in war. airplane. Borja-Manzano v. Extraordinary circumstances [Art. or (c) DANGER OF DEATH under other circumstances. and (c) Judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). (Balane) (2) Only the deserted/present spouse can file or institute a summary proceeding for the declaration of presumptive death of the absentee.

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.absent spouse at the instance of any interested person. 2 years under extraordinary Absent for at least 7 years. 4 years under extraordinary UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 20 Family Code Civil Code circumstances circumstances As to remarriage In order to remarry. if absentee spouse reappears without recording affidavit of reappearance. [Art. Meanwhile. presumption of validity on 2nd marriage and burden on party ATTACKING VALIDITY OF 2ND MARRIAGE. 42] 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. with due notice to the spouses of the subsequent marriage. absentee spouse cannot remarry. any interested party. 42] Note: It is the recording of the affidavit of reappearance that automatically terminates the subsequent marriage. Difference between Absence in the Civil Code and Family Code Family Code Civil Code As to period 4 years under normal circumstances. Burden of Proof: Two successive marriages. and the subsequent spouse The spouses themselves As to effect on subsequent marriage Subsequent marriage is automatically terminated by the recording of an affidavit of reappearance . then there is no legal effect. Hence. (Tolentino) Exception to the exception: If there is a judgment annulling the previous marriage or declaring it void ab initio. [Art. PRESUMPTION in favor of INNOCENCE prevails over PRESUMPTION of CONTINUANCE OF LIFE OF 1ST SPOUSE & MARITAL RELATIONS.

custody and support decided by court in a proper proceeding (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. Article 43 and 44 (Effects of Termination of Bigamous Marriage under Art. donations will be revoked) (4) Insurance benefits – innocent spouse may revoke designation of guilty party as beneficiary. (but if the donee contracted marriage in bad faith. and has been missing for four years. even if such designation is stipulated as irrevocable . 42) Art. who has not been heard of for four years since the loss of the vessel or aeroplane. 43: (1) Children of subsequent marriage – conceived prior to its termination considered legitimate. Civil Code. 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 Connected Provisions Art. Civil Code. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of 10 years. After an absence of 7 years. except for those of succession. (2) A person in the armed forces who has taken part in war. he shall be presumed dead for all purposes. If he disappeared after the age of 75 years. or an aeroplane which is missing. 390. The following shall be presumed dead for all purposes. Art. it being unknown whether or not the absentee still lives. including the division of the estate among the heirs: (SAAD) (1) A person on board a vessel lost during a sea voyage. to the innocent spouse) (3) Donation propter nuptias – remains valid. an absence of 5 years shall be sufficient in order that his succession may be opened. 391. Art. 41 of the Family Code makes an exception for the purpose of remarriage by limiting such requirement to 4 years. Notes: Although 7 years is required for the presumption of death of an absentee in the Civil Code. and in case there are none. children of the guilty spouse by a previous marriage.of the absent spouse Upon reappearance. (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.

02-11-10-SC. Sandoval (2008)) How to attack a void marriage? General Rule: Void Marriages may be attacked collaterally or directly. not having been emancipated by a previous marriage. (Enrico v. Tolentino makes no mention of any such difference. The action or defense for the declaration of absolute nullity of a marriage shall not prescribe. hence. No. Heirs of Sps. whether testate or intestate Article 44: Donations: If both parties of subsequent marriage acted in bad faith.(5) Succession Rights – Party in bad faith disqualified to inherit from innocent spouse.) Art. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor. nullity of the marriage can still be collaterally attacked. effective March 15. are between the ages of eighteen and twenty-one.M. (as amended by RA 8533) 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. Medinaceli (2007)). 14: In case either or both of the contracting parties. Exception: A person in a void marriage must first file for a declaration of nullity in order to subsequently marry ANNULLABLE MARRIAGE (Note: Although the Supreme Court in its syllabus seems to make a distinction between annullable and voidable marriages by the fact that they made two separate categories for the two. In addition to the requirements of the preceding articles: (a) Exhibit to the local civil registrar the consent to their marriage of their father. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. and. also reiterated in (Carlos vs. Who may file the petition for nullity? As to the parties allowed to file the action: Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. any donations and testamentary dispositions made by one party to the other by reason of marriage will be revoked ACTION OR DEFENSE OF NULLITY Prescription Art. surviving . 39. can only question the validity of the marriage of the spouses upon the death of a UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 21 spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. 2003. The Committee is of the belief that they do not have a legal right to file the petition. mother.

intimidation. and there is no parental consent. (c) TOLENTINO: parents whose consents were wanting may ratify before 21. even if not concealed. (5) Either party is physically incapable of consummating the marriage (impotence. habitual alcoholism or homosexuality/lesbianism.” Article 45. (d) Through concealment of drug addiction. (2) Either party was of unsound mind (insanity). if one is executed instead. this right can be . jurisdiction depends on nationality or domicile not the place of celebration. Grounds for Annulment explained: (1) Lack of parental consent (a) 18 ≤ x < 21 without parental consent (b) Ratified by party 18 or above but below 21 upon free cohabitation upon reaching 21. res is relation between parties or marriage tie. (Art. and the affidavit.parent or guardian. which is the inability to produce offspring). (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. (6) Either party has a serious and incurable sexuallytransmissible disease. or persons having legal charge of them. who personally appears before the proper local civil registrar. regardless of its nature. existing at the time of marriage. concerns status of parties. or undue influence. Grounds for Annulment Article 4 states that “xxx A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45. or (c) In the form of an affidavit made in the presence of two witnesses and attested before any official authorized by law to administer oaths (d) The personal manifestation shall be recorded in both applications for marriage license. (c) Through concealment of a sexuallytransmitted disease. (b) Through concealment by the wife of the fact that at the time of the marriage she was pregnant by another man. in the order mentioned (b) Manifested in writing by the interested party. Marriage may be annulled on the following grounds existing at time of marriage: (PIFFIS) (1) One of the parties is 18 or above but below 21 years old. this is different from sterility. shall be attached to said applications.* Action to Annul: Action in rem.46) (4) The consent of either party was obtained through force.

that she was pregnant by another man (3) Concealment of STD regardless of nature existing at time of marriage (4) Concealment of drug addiction. 46: UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 22 (1) Non-disclosure of previous CONVICTION by final judgment of a crime involving MORAL TURPITUDE (2) Concealment by wife at the time of marriage. (2) curable being an illness. FORTUNE OR CHASTITY shall constitute FRAUD. insanity (1) of varying degrees. (d) Intoxication. importance of procreation of children. however. (f) Law presumes SANITY. (c) Conviction of Crime: requisites are (1) Moral turpitude (2) Conviction (d) Concealment of Pregnancy (1) Fraud against very essence of marriage. the Code Commission believes that no such ratification can be made by the parent. RANK. capable of ratification or convalidation. 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. (4) ground only for annulment in many countries (b) Can be ratified by cohabitation after insanity is cured or during a lucid interval (c) Mere mental weakness is not a ground for annulment. (3) has lucid intervals. habitual alcoholism. Logan (1896)) (f) Maybe ratified upon free cohabitation after . an assault to the integrity of the union by introducing ALIEN BLOOD (2) If husband knew of pregnancy. but if found grave enough may amount to psychological incapacity. (Shrady v. HEALTH. burden of proof on party alleging insanity (3) Fraud (a) Only those enumerated in Art.waived. the marriage cannot be annulled on the ground of concealment (e) Marriage cannot be annulled on the ground that wife concealed the fact that she had been lewd & corrupt and had illegitimate child. homosexuality. (2) Insanity (a) Mental incapacity or insanity is a vice of consent. lesbianism existing at time of marriage (b) NO other misrepresentation or deceit of CHARACTER.

Mangonon de Buccat. It argued that since Delizo was “naturally plump. will destroyed by fear/compulsion .knowledge of fraud. Ground: Concealment of non-virginity. 46: Recovery or rehabilitation from STD. Art. 45 STD Art. Denied. Delizo. (1941): Wife gave birth 3 months after marriage celebration. (2004): In a legal separation or annulment case. Court held that it was unbelievable that husband could not have noticed when wife had been at least 6 months pregnant prior to marriage. Buccat v. drug addiction. 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.” Aquino could hardly be expected to know. (1960): The Supreme Court granted annulment because the wife concealed the fact that she was 4 months pregnant during the time of the marriage. the prosecuting attorney must first rule out collusion as a condition sine qua non for further proceedings. (4) Force. Such concealment presupposes bad faith and intent to defraud the other party in giving consent to the marriage. Ochoterena. that vitiates the consent of the innocent party. Almelor v. 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. Corpuz v. by mere looking. but the FRAUD which VITIATED CONSENT. intimidation. and not homosexuality per se. The defect is not the disease. Husband filed for annulment. whether or not she was pregnant at the time of the marriage. (2008): It is the concealment of homosexuality. undue influence (a) FORCE must be one as to prevent party from acting as a free agent. and habitual alcoholism will NOT BAR ACTION for annulment. RTC. Aquino v.

or undue influence has ceased or disappeared. husband presumed impotent & has burden to prove otherwise (Tompkins v Tompkins) (g) REFUSAL of wife to be examined DOES NOT PRESUME impotency because Filipino women are inherently shy & bashful. intimidation. condition of person borne in mind (d) Threat or intimidation as not to act as FREE AGENT. there is a doctrine in England called TRIENNIAL COHABITATION that if wife remains virgin after 3 yrs. fear of causing distress to parents. (g) May be ratified upon cohabitation after force.(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. to order her to undergo physical exam does not infringe constitutional rights against selfincrimination (Jimenez v Canizares) (h) Villanueva vs. TC must order physical examination because w/o proof of impotency. marries her to conceal the rape & has no intention to live with the girl. sex.g. party who alleges impotency has burden of proof (Jimenez v Canizares (1960)) (f) Although potency is presumed. she is presumed potent.. marriage cannot be annulled because neither spouse is aggrieved (e) POTENCY PRESUMED. must be continuous. maybe compelled to enter out of REVERENTIAL FEAR e. she can be held for CONTEMPT & ordered to be confined in jail . (i) NOTE: if wife continues to refuse to undergo physical exam. CA (2006): Absence of cohabitation is not a ground for annulment. etc. threatened of armed demonstrations by brother is ANNULLABLE (Tiongco v Matiga) (e) Man rapes a girl. grandparents. not mere sterility (d) When both spouses are impotent. must be incurable. (5) Impotency (a) Must exist at time of marriage. NOT ANNULLABLE (Sarao v Guevarra(1940)) (b) Should be unknown to the other party (c) Physical condition: sexual intercourse with a person of the opposite sex is impossible. thus if incapacity can be remedied or is removable by UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 23 operation. marriage is annullable (People v Santiago (1927)) (f) Committee added “undue influence”.

Insanity Sane spouse with no knowledge of the other’s . (Balane) (h) 2 & 3 above prescribe w/in 5 yrs by Art. 47(5) Who may file.until she does so (j) 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. would result in anomalous relationship (b) Vitiated by impotency remains as long as afflicted (c) Vitiated by affliction of STD remains as long as afflicted (d) Affliction of STD is unknown to the other spouse (Balane) (e) The other spouse must also be free from a similar STD. 45) Who can file (Art. Free cohabitation after attaining age of 21. (k) EXAMPLE: penile erection to other women possible. unusually large penis cannot fit with abnormally small 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) Not subject to ratification cannot be ratified or convalidated by prescription or cohabitation: (a) Prior subsisting marriage. 47) Ratification (Art. 45) Lack of parental consent Under-aged party (18 or above but below 21) Within 5 years after attaining 21. 47) Prescription (Art. Parent or guardian without consent Before party below 21 reaches 21. Prescription. Ratification Ground (Art.

47 – prescription: 5 years) (2) One spouse has an incurable STD (Art.insanity Legal guardian of insane party Any time before the death of either party Free cohabitation of insane party after insane party comes to reason Insane party During lucid interval or after regaining sanity. undue influence. 45) prescribes Marriages Not Subject to Ratification/ Convalidation by cohabitation (1) One spouse is incurably impotent (Art. 48: To prevent collusion between the parties. the prosecuting attorney or fiscal shall appear on behalf of the State. 49: During the pendency of the action and in the absence of adequate provisions in a written agreement between the spouses. 47) Ratification (Art. or intimidation Free cohabitation after the force or intimidation or undue influence has ceased or disappeared Impotence Potent spouse Within 5 years after marriage Cannot be ratified but action prescribes STD Healthy party Within 5 years after marriage Cannot be ratified but action UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 24 Ground (Art. intimidation. undue influence Injured party Within 5 years after disappearance of force. 47 – prescription: 5 years) (3) Sane spouse marries an insane spouse w/o knowledge of insanity Presence of Prosecutor Art. and before death Fraud Injured party (defrauded party) Within 5 years after discovery of fraud Free cohabitation after having full knowledge of fraud Force. fabrication or suppression of evidence. the Court shall provide for the support of the spouses and the custody and support of . EFFECT OF PENDING ACTIONS/DECREE Art. 47) Prescription (Art. 45) Who can file (Art.

50(1)). (1) The court shall provide for the support of the spouses. computed as of the date of the final judgment. 51(1)) (2) The children/guardian/trustee of property may ask for the enforcement of the judgment (Art. no judgment shall be based upon a stipulation of facts or confession of judgment. (3). Decisions on the nullification of the marriage Art. partition. shall be delivered in cash. (3) The court shall also provide for visitation rights of other parent. their choice of parent with whom they wish to remain. 51(2)) (3) The delivery of the presumptive legitimes shall . had already provided for such (Art. giving paramount consideration to their moral and material welfare. 102 and 129) (Art. by mutual agreement judicially approved. the conjugal dwelling and lot shall be adjudicated to the spouse with whom majority of the common children remain (Art. 48 (2): In the cases referred to in the preceding paragraph. It shall also provide for appropriate visitation rights of the other parent. (2) The custody and support of the common children. 50(2 and 3)) In the partition. 50(2)) (b) All creditors (of the spouses/property regime) shall be notified of the proceedings for liquidation (Art. 50(4) Presumptive legitimes. Final judgment in such cases shall provide for the liquidation. property or sound securities: (1) Unless the parties.their common children. The Court shall give paramount consideration to the moral and material welfare of said children and their choice of the parent with whom they wish to remain as provided for in Title IX. (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. Stipulation of Facts: An admission by both parties after agreeing to the existence of any of the grounds or facts that would constitute a void/voidable marriage Confession of judgment: The admission by one party admitting his/her fault to cause the invalidity of the marriage. EFFECTS OF NULLITY The effects provided for by paragraphs (2). and distribution of the: (1) Properties of the spouses (2) Custody and support of the common children (3) Delivery of their presumptive legitimes (a) Unless such matters had been adjudicated in previous judicial proceedings (Art.

there is no need for prior conviction for concubinage. 54) (b) Children conceived or born of subsequent marriages under Article 53 (Art. (4) Final judgment sentencing the respondent to imprisonment of more than six years. as opposed to proof . (8) Sexual infidelity or perversion. (6) Lesbianism or Homosexuality of the respondent. but is consummated and exhausted at the moment of carnal union. (7) Contracting by the respondent of a subsequent Bigamous marriage. or connivance in such corruption or inducement. or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year.not prejudice the ultimate successional rights. (3) Attempt of respondent to Corrupt or induce the petitioner. even if pardoned. As such. a common child. but the value of the properties already received shall be considered as advances on their legitime (Art. or a child of the petitioner. People v. (5) Drug addiction or habitual alcoholism of the respondent. or a child of the petitioner. whether in the Philippines or abroad. Gandioco v. (2) Physical violence or moral Pressure to compel the petitioner to change religious or political affiliation. Peñaranda (1989): In sexual infidelity as a ground for legal separation. (9) Attempt by the respondent Against the life of the petitioner. 51(3)) Generally. Exceptions: (a) Children conceived or born before the judgment under Article 36 has become final and executor (Art. Zapata and Bondoc (1951): Adultery is not a continuing crime. to engage in prostitution. because legal separation only requires a preponderance of evidence. (Article 55) (RPC Final DH BSAA) UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 25 These must be filed within 5 years after occurrence of cause (Article 57) (1) Repeated physical violence or grossly abusive conduct directed against the petitioner. Each sexual act constitutes one act of adultery. a common child. every sexual act is a ground for legal separation. children born or conceived within void marriages are illegitimate. 54) Legal Separation GROUNDS FOR LEGAL SEPARATION Note: The grounds for legal separation are exclusive.

Eufemio (1972): The death of one party in a legal separation case abates the action. Dela Cruz. Dela Cruz (1968): Abandonment is not mere physical estrangement but also financial and moral desertion. or deliberately providing the woman's children insufficient financial support. This is because the death of either spouse automatically dissolves the marriage. duties. or attempting to restrict or restricting the woman's or her child's freedom of movement or conduct by force or threat of force. (b) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family. (3) Attempting to cause the woman or her child physical harm. occupation. v. (2) Threatening to cause the woman or her child physical harm. This shall include. or solely controlling the conjugal or common money. by force or threat of force. the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's movement or conduct: (a) Threatening to deprive or actually depriving the woman or her child of custody to her/his family. (7) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape. or intimidation directed against the woman or child.beyond reasonable doubt required in concubinage. physical or other harm or threat of physical or other harm. business or activity or controlling the victim's own money or properties. and rights with the intention of perpetual separation. (4) Placing the woman or her child in fear of imminent physical harm. physical harm. (6) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions. (5) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or desist from conduct which the woman or her child has the right to engage in. (c) Depriving or threatening to deprive the woman or her child of a legal right. ACTS OF VIOLENCE ACCORDING TO RA 9262 (1) Causing physical harm to the woman or her child. or properties. Lapuz Sy v. An action for legal separation is also purely personal between the spouses. There must be an absolute cessation of marital relations. but not limited to. or through intimidation directed . (d) Preventing the woman in engaging in any legitimate profession.

DEFENSES GROUNDS FOR DENYING LEGAL SEPARATION (ARTICLE 56) (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.against the woman or her child or her/his immediate family. (8) Engaging in purposeful. and (e) Engaging in any form of harassment or violence. and denial of financial support or custody of minor children of access to the woman's child/children. 57: 5 years from occurrence of the cause of action) (7) Reconciliation of parties during pendency of action (Art. 58). but not limited to. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 26 (d) Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child. personally or through another. (9) Causing mental or emotional anguish. knowing. or reckless conduct. and determined that despite such efforts. including. Eufemio) COOLING-OFF PERIOD AND RECONCILIATION EFFORTS Action cannot be tried before six months have elapsed from the filing of the petition (Art. This shall include. repeated verbal and emotional abuse. 59) Note: This is without prejudice to judicial . (b) Peering in the window or lingering outside the residence of the woman or her child. Action cannot be tried unless the court has attempted to reconcile the spouses. public ridicule or humiliation to the woman or her child. reconciliation is highly improbable (Art.1) (8) Death of either party during pendency of action (Lapuz-Sy vs. but not be limited to. that alarms or causes substantial emotional or psychological distress to the woman or her child. (c) Entering or remaining in the dwelling or on the property of the woman or her child against her/his will. 66 par. the following acts: (a) Stalking or following the woman or her child in public or private places.

Araneta vs. alimony. (c) Visitation rights of the other spouse EFFECTS OF LEGAL SEPARATION (1) The spouses can live separately (Art. 2) EFFECTS OF PENDENCY The Court shall provide for: (Art. The point of this provision is that the Court should still admit evidence. Thus. as much as possible. Art. 60 par. as used in RA 9262 (Anti-Violence Against Women and their Children). and the share of the guilty spouse shall be forfeited in favor the common children. if there is no written agreement between the spouses. par. par. CONFESSION OF JUDGMENT No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment (Art. 1 applies only if the judgment was based solely on the stipulation of facts or solely on the confession of judgment. (Art. previous . (1956): Courts can still resolve other issues. Note: This provision of the Family Code dictating a mandatory 6-month cooling-off period does not apply in cases where violence. the court shall designate one of them or a third person to administer the ACP or CPG. EFFECTS OF FILING PETITION (1) The spouses are entitled to Live separately. Note: Art. not decide just based on an admission of guilt. try not to touch. In resolving issues. 60 par. 60. 1. 61.determination of custody of children. FC). but the marital bond is not severed. 61 (1) (2) Administration of Community or Conjugal Property – If there is no written agreement between the parties. Because what is prohibited is handing down a decree of legal separation based solely on a confession of judgment. adultery if that is the ground used). and support pendente lite. is alleged. 49.e. It shall also provide for visitation rights of the other spouse. 62. 1 is not applicable. (Balane) Ocampo v Florenciano (1960): The prohibition on confession of judgment does not mean that the Court will not grant petition if one party admits to being guilty of the charges of adultery. However. on the main issue (i. Court must still receive evidence if just to settle incidental issues of support and custody. (Art. The case should be heard as soon as possible by the court. (2) The ACP or CPG shall be dissolved and liquidated. Concepcion. cf. Art. 63) but the marriage bonds are not severed. FC) (a) Support of spouses (b) Custody of children The court shall give custody of children to one of them. if other grounds were used. pending the waiting period or cooling off period.

(Art. 63) (5) Donations in favor of the guilty spouse may be revoked (Art. 66) (2) If there is a final decree of legal separation. FC. 2). 372. or innocent spouse. (3) Custody of the minor children shall be awarded to the innocent spouse (Art. cf. (Art. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 27 The provisions in favor of the guilty party in the will of the innocent spouse shall also be revoked by operation of law. cf. (Art. in that order (Art. 66 cf. The right to testamentary succession depends on the will of the innocent spouse. but the court may order the guilty spouse to support the innocent spouse. PD 612. par. Art 213) (4) Guilty spouse shall be disqualified from Inheriting from innocent spouse by intestate succession. they should file a corresponding joint manifestation under oath of such reconciliation. (Art. unless the spouses agree to revive their former property regime or to institute another property regime. 198) (8) The wife shall continue to use the Surname of the husband even after the decree for legal separation. (Art. cf. sec.children. Intimidation or Undue Influence . ANNEX TO VOID AND VOIDABLE MARRIAGES AND LEGAL SEPARATION GROUNDS Void Marriages Voidable Marriages Legal Separation One is a minor Lack of parental consent Repeated Physical Violence No authority to marry Insanity Pressure to compel to change religious/political affiliations No valid marriage license Fraud Corruption / Inducement to engage in prostitution Bigamous and polygamous marriages Force. 67) (4) Joint custody of children is restored. 11) (7) Obligation for Mutual support ceases. 64) but this action prescribes after 5 years from the decree of legal separation. 63. (Art. (Art. CC) RECONCILIATION HOW DONE Should the spouses reconcile. (6) Innocent spouse may also revoke designation of guilty spouse as beneficiary in an Insurance policy. it shall be set aside. even if such stipulations are irrevocable. (Art. (5) The right to intestate succession by guilty spouse from innocent spouse is restored. 66) (3) The separation of property and forfeiture of share of guilty spouse shall subsist. 43. 63. 64. Art. 65) EFFECTS OF RECONCILIATION (1) Proceedings for legal separation shall be terminated at whatever stage. Art.

ANNULMENT AND LEGAL SEPARATION Void Marriages Terminated Marriage (Art. 36 and 35 conceived and born before judgement (legitimate) Legitimate Legitimate Legitimate Custody of Children Court Proceeding Court Proceeding Court Proceeding Innocent Spouse Property Relations (1) Dissolution and Liquidation of properties (a) Guilty/Bad Faith spouse will forfeit his/her share from the Net Profits to the (in order): (i) Common children (ii) Children of the guilty spouse (iii) Children of the innocent spouse (2) Notification of creditors with the proceedings for liquidation (3) Conjugal dwelling to be adjudicated to the spouse who has majority custody of common children (4) Insurance policy may be revoked only by the innocent spouse (Legal Separation: Only within 5 years) (5) Spouse in bad faith/guilty shall be disqualified to inherit (testate and intestate) Donation Propter Nuptias . 41) Voidable Marriages Legal Separation Status of Marital ties Severed Severed Severed Not Severed Status of Marriage Void ab initio Subsequent marriage is terminated (not invalidated) Void Valid Status of Children born and conceived before termination Illegitimate EXCEPT: Art. JUDICIAL DECLARATION OF NULLITY.Final judgement with sentence of more than 6 yrs. Mistake of identity Impotence Drug Addiction / Habitual Alcoholism Void subsequent marriage Serious and Incurable STD Homosexuality / Lesbianism Psychological incapacity Bigamous marriage (engaging in) Incestuous Marriages Sexual Infidelity Marriages against public policy Attempts against the life Abandonment without just cause for more than 1 year EFFECTS OF FILING / PENDING DECREE Void/Voidable Marriages Legal Separation Support for the spouses Custody and support for the children Visitation rights to the other spouse No right to live separately Spouses to live separately Properties are still managed by both parties Designation of an administrator of the properties UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 28 EFFECTS OF AFFIDAVIT OF REAPPEARANCE.

(Art. Campos Rueda (1916): The husband demanded the wife perform ‘unchaste and lewd’ sexual acts. 68) Ilusorio v. (Art. in this case. 68) Exemption: One spouse living abroad or there are valid and compelling reasons (Art. Husband is compelled. emotional or psychological. Bildner (2000): A person has a purely personal right to consortium (Constitutional right to liberty). SC: Court cannot compel the woman to go back to the husband. FAMILY DOMICILE The husband and wife shall fix the family domicile. Court cannot order a man to go back to the conjugal dwelling. MANAGEMENT OF HOUSEHOLD This is the right and duty of both spouses. if none. 72) Injury contemplated is physical. The duty of the husband to support the wife is also not terminated because she left the house. Goitia v. EXERCISE OF PROFESSION . If none. not financial. to give support for separate maintenance (outside family home). The wife left the family home.Valid. 69 (1)) UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 29 SUPPORT From the conjugal property. (Shows that what is in Family Code is not the former spousal unity doctrine (Old England)). the aggrieved party may apply to the court for relief. respect. but if donee contracted marriage in bad faith. dishonor or injury to the family. 69 (2)) Exemption To Exemption: Incompatibility with the solidarity of the family (Art. and fidelity (3) Render mutual help and support (Art. when it is the husband’s fault she left in the first place. the court shall decide. Vasquez de Arroyo (1921): A court cannot compel a married woman to go back to her husband. 69) In case of disagreement. (Art. from their separate properties (liable in proportion to their properties). Wife petitioned for support/ separate maintenance. moral. 69 (2)) (2) Observe mutual love. revoked by operation of law May be revoked within 5 years Rights and Obligations between Husband and Wife ESSENTIAL OBLIGATIONS (1) Live together (cohabitation – Art. Arroyo v. The wife refused but the husband kept insisting. income or the fruits of their separate properties. EFFECT OF NEGLECT OF DUTY In case the other spouse neglects his or her duties or commits acts which tend to bring danger.

serious. mother. valid only when persons required to give consent to the marriage (father. respectively) are made parties to the agreement [Art. (3) Authority to be the sole administrator of the conjugal partnership. 128 . If BEFORE the objection. However. enforce resulting obligation against the separate property of the spouse who has not obtained consent.. 75. other regimes).Reconciliation in case of legal separation Art. (2) Judicial separation of property. 135 . in the marriage settlement. in the absence of a marriage settlement. or guardian. complete separation of property.Sufficient cause for judicial separation of property Art. 78] . and moral grounds. without need for consent of the other. 81. MARRIAGE SETTLEMENT RULES When modifications can be made General rule: Before marriage is celebrated [Art. 136 .Voluntary dissolution of ACP or CPG by the spouses If a spouse petitions the court for: (1) Receivership. the system of absolute community of property as established by this Code shall govern.When spouse leaves family without just cause Art. or when the regime agreed upon is void. 63(2) – Property regime is dissolved Arts. or. which property regime will govern their marriage (ACP. Future spouses may agree upon. (a) The other spouse may only object on valid. 66 and 67 .Either spouse may exercise any legitimate profession. Property Relations of the Spouses MARRIAGE SETTLEMENTS Art. Marriage settlements are considered accessory to the marriage. the Court shall decide whether: (1) The objection is proper. (b) In case of disagreement.o. 76] Art. stipulations in consideration of future marriage and donations will be void if the marriage does not take place. therefore as per Art. 77] Made in writing Signed by the parties Executed before the marriage celebration Registered in the local civil registry where the marriage is recorded and in registries of property in order to prejudice third persons If executed by a person below 21 y. CPG. if he or she is abandoned by the other without just cause or fails to comply with his or her obligations to the family [Art. and (2) Benefit has accrued to the family before OR after the objection. 128] Requirements of marriage settlements and any modification thereof [Art.

if they should infringe the legitime of a forced heir. 84] Exception: If they are governed by ACP Donations of property subject to encumbrances (1) Are considered valid. 82-87] Ordinary donation provisions [Art. the marriage is really a consideration. 84. except donations made in settlements. as . not its cause. valid only when his guardian is made party to the agreement [Art. 86] (1) If the marriage is not celebrated or judicially declared void ab initio. (2) In case of foreclosure: (a) if property value < obligation. Title III of Book III. donee shall not be liable for the deficiency (b) if property value > obligation.If executed by a person upon whom civil interdiction has been pronounced or who is subject to any other disability. but not in the sense of giving birth to the obligation. (2) When the marriage takes place without the consent of the parents or guardians. Being liberalities. they remain subject to reduction for inofficiousness upon the donor’s death. NCC] Provisions on testamentary succession and the formalities of wills for donations on future property [Art. but the absence of marriage is a ground for the revocation fo the donation. Requisites of donations propter nuptias Made before the celebration of marriage Made in consideration of marriage In favor of one or both of the future spouses Donor must be one of the betrothed or any third person Donations excluded Ordinary wedding gifts given after the celebration of the marriage Donations in favor of future spouses made before marriage but not in consideration thereof Donations made in favor of persons other than the spouses even if founded on the intended marriage Who may donate Spouses to each other Parents of one or both spouses Third persons to either or both spouses Sources of rules governing donations propter nuptias Family code provisions [Arts. 79] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 30 DONATIONS BY REASON OF MARRIAGE Solis v. donee shall be entitled to the excess (Art. 83. [Art. Lagua (1969): Donations propter nuptias are without onerous consideration. par. 2] Rules for donations before marriage General rule: Future spouses cannot donate to each other more than 1/5 of their present property (excess shall be considered void). 85) Grounds for revocation of donation propter nuptias [Art. Mateo v. There can be a valid donation even if the marriage never took place. marriage being merely the occasion or motive for the donation. Barroso (1928): In donations propter nuptias.

84) No limit to donation of present property provided legitimes are not impaired Grounds for revocation . Rules for donations between common-law spouses Matabuena v Cervantes. and the donee acted in bad faith. (1971): The donation between common-law spouses falls within the provision prohibiting donations between spouses during marriage. 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. Effects of judicial declaration of nullity Donations by reason of marriage shall remain valid except that if the donee contracted marriage in bad faith. [Art. An offense against person or property of donor. (5) If there is a resolutory condition. Sumbad v. 80. (3) When the marriage is annulled. and (5) and by Art. (1918): The prohibition on donations can only be assailed by persons who bear such relation to the parties or the property itself. Effects provided for by Art. or his wife or children under parental authority.in donation laws ABSOLUTE COMMUNITY OF PROPERTY AND CONJUGAL PARTNERSHIP OF GAINS Art. [Art. if the donee is the guilty spouse.Thus. his wife or children under his authority. the insurance company of the donated car cannot assail the validity of the donation. 86 Grounds for revocation . Harding v. CC] a. (3).In Art. directly or indirectly (donations made by spouses to each other during the marriage are void). Refusing to support the donor. 1. Here. 87] Exception: Moderate gifts on the occasion of any family rejoicing. Property relations between Filipino spouses are governed by Philippine laws. 43 (3)] Revocation by operation of law . In addition. (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. that their rights are being interfered with. When donee has committed an act of ingratitude: [Art. [Art. unless the crime is committed against the donee. 43(2). 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. 765. such donations made to said donee are revoked by operation of law. limited to 1/5 (Art.required by law. 44 shall also apply to marriages that are declared void ab initio or annulled by final judgment under Article 40 (Judicial declaration of nullity) and 45 (Voidable marriages). and it is not complied with. An imputation to the donor of any criminal offense. 50] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 31 Rules for donations during marriage General rule: Spouses cannot donate to each other. even if proven. if he/she is legally required to do so. Commercial Union. c. CA. . the donation propter nuptias is still forfeited. (4). even if spouse in good faith condones the donee. b. regardless of the place of marriage and their residence. or any act involving moral turpitude. (4) Upon legal separation. DISTINGUISHED FROM ORDINARY DONATIONS Donations Propter Nuptias Ordinary Donations Does not require express acceptance Express acceptance necessary May be made by minors (Art.

88] Default property regime for marriages celebrated before the Family Code took effect (1988) For marriages after the Family Code. However. Art. if agreed to by the parties through a marriage settlement. or profession of either or both spouses Fruits from common property and net fruits of the exclusive property of each spouse Share of either spouse in hidden treasure. Everything acquired by them by chance Acquired by onerous title during the marriage at the expense of the common fund Winnings from gambling shall accrue to the community property [Art. industry. the rule that Absolute Community Property (ACP) is the default mode of property relations absent any marriage settlement applies to all Filipinos. 89. spouses cannot exclude specific properties from the regime. work. except in the following cases: (1) When there is judicial separation of property (2) When there is legal separation (3) When the marriage is dissolved by death of one of the spouses (4) When the marriage is annulled Art. 95] Acquired through the labor. Everything stipulated in marriage settlements in consideration of a future marriage are void if marriage does not take place. Co-ownership rules shall apply to ACP in matters not provided by the Family Code.: recognition of paternity of illegitimate child) remain valid. As a general rule. COMPARISON OF ACP AND CPG Absolute Community Property Conjugal Partnership Of Gains When it commences At the precise moment of the celebration of the marriage [Art. 81. regardless of the place of the marriage and their residence. products. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 32 Absolute Community Property Conjugal Partnership Of Gains What it consists of All the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter [Art. a waiver of rights is not allowed. such as winnings from gambling or betting . 15]. stipulations that do not depend upon the celebration of marriage (e. Exceptions: (1) Where both spouses are aliens (2) As to the extrinsic validity of contracts (3) Contrary stipulation Art.By the Nationality Rule [Art. 91] Proceeds.g. whether as finder or owner of property where treasure was found Acquired through occupation such as fishing or hunting Livestock existing at dissolution of partnership in excess of what is brought by either spouse to the marriage Acquired by chance. and income of their separate properties Everything acquired by them within marriage through their own efforts Under the ACP. fruits. 90.

including the fruits of such properties Except: When expressly provided by the donor or testator that the property shall form part of the ACP Property acquired by either spouse during the marriage by gratuitous title Properties for personal use Except: Jewelry Property acquired by right of redemption. Pan Am (1973)] Loans contracted during the marriage are conjugal. i. A writ of execution on the property was carried out but Plata refused to leave the premises.Moral damages arising from a contract paid from the CPG [Zulueta v. Property is not conjugal. Reyes (1983)] Property purchased by installment. paid partly with conjugal funds and partly with exclusive funds. SC ruled that Plata cannot be held in contempt. subject to the reimbursement of the value of the property of the ownerspouse at the dissolution of the CPG 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 the conversion were exclusively for the account of the original ownerspouse. paid partly with conjugal funds and partly with exclusive funds. Yatco: Plata purchased property when she was single. donation. When married. 118] . the prize is conjugal (otherwise. 118] If a winning ticket is bought by conjugal funds. Bergosa was UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 33 Absolute Community Property Conjugal Partnership Of Gains sued for illegal detainer.e. and so is any property acquired therefrom [Mendoza v. the prize is exclusive property of the spouse who owns the ticket) Improvement on exclusive property: if original value < new value (where new value = value of land + value of improvements + net change in value). she and her husband Bergosa co-signed a mortgage on the property. if full ownership was vested before the marriage [Art. or by exchange with property belonging to either spouse Plata v. the CPG shall reimburse the owner-spouse [Art. Upon foreclosure. if full ownership was vested during the marriage. inheritance by testate and intestate succession. She could ignore execution because the decision was for her husband alone. then land becomes conjugal property. for those with legitimate descendants with a former marriage (to protect rights of children by a former marriage) Property brought into a marriage by each spouse as his/her own Properties acquired by a gratuitous title. subject to reimbursement of the value of the original property from the conjugal partnership What remains exclusive property Properties acquired before the marriage. by barter. Her husband signing as co-mortgagor does not convert it to CPG. Property purchased with exclusive money of either spouse Property purchased by installment.

SSA governs. contracted. unless it be proven that they are excluded.g. should. Intellectual property. 93] All property acquired during the marriage. 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 (2) Parag. then all the business property is separate property.Even if the installment is completed after the marriage. like copyright or patent. the property is exclusive if ownership was vested in one spouse before the marriage [Lorenzo v. then land remains exclusive property of the owner-spouse. or registered in the name of one spouse. subject to the reimbursement of the cost of improvement Money received under the Social Security Act is not conjugal. be considered separate property Business property (e. trademarks. Nicolas (1952)] Improvement on exclusive property: if original value > new value (where new value = value of land + value of improvements + net change in value). although the employee-spouse contributes to the SS with his salaries. except when a spouse leaves conjugal home without just cause (b) Even during pendency of action for legal separation/annulment of Debts and obligations (1) Parag. 3: By one spouse without the consent of the other for the benefit of the family UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 34 . according to Tolentino. [Art. [Art 116] As a condition sine qua non in favor of the conjugal partnership. so that if such establishment or product is separate property of one spouse. not FC. 94 Arts. service marks. but belongs to the designated beneficiary under the Social Security Law. whether made. the party who invokes the presumption must first prove that the property was acquired during the marriage [Acabal v. Acabal (2005)] Charges and obligations Art. 119] Sale of separate property of a spouse Indemnity paid in case of expropriation of separate property or under an insurance policy covering separate property Presumption All properties acquired during the marriage form part of the ACP. trade names. business goodwill) are merely accessories to some commercial establishment or product. are presumed conjugal unless the contrary is prove. 121-123 Support of the following: (1) Spouses (a) Even if not living together. but all benefits or earnings derived from these during the marriage should belong to the conjugal property (Tolentino) Collection of credits belonging to one spouse exclusively but the interests shall belong to the CPG [Art.

with the consent of the other (2) In parags.Absolute Community Property Conjugal Partnership Of Gains marriage (2) Common children (3) Legitimate children of previous marriage (4) Illegitimate children – follow the provisions on Support and parag. absolute (3) Parag. Adil (1988)] Expenses for professional. not those that do not benefit the family . only for value of donation Support to surviving spouse & children during liquidation is charged against the fruits or income of their shares in the properties. 9: Litigation expenses. or self-improvement courses of spouses Debts incurred during the marriage are presumed to be conjugal and thus are charged to the CPG [Cobb-Perez v. the applicable rule is parag. Latin (1968)] Ante-nuptial debts that benefited the family – if the ante-nuptial debt did not benefit the family. for purposes of professional/vocational courses or . 9 (3) Parag. 2 and 3. [Art. liens.Expenses limited to minor repairs only Loan contracts signed by both spouses are conjugal. 6: Education of spouses. repairs (both major and minor) on community property Debts incurred in the exercise of a spouse’s profession [Javier v. unless the suit is groundless Debts contracted by one spouse without consent of the other – ACP is liable only to the extent that the debt benefited the family Support (1) Parag. 9 Donations by both spouses to common legitimate children.Applies only to separate properties by either spouse being used by the family. Osmeña (1916)] Taxes and expenses for mere preservation of separate properties . 4: Maintenance of the CPG properties (2) Parag. vocational. 7: Ante-nuptial debts for the benefit of the family Debts and obligations contracted during the marriage (1) Either by both spouses or one of them. 1: Support of spouses and common children (2) Parag. 5: Mere preservation of all exclusive properties (3) Parag. 8: Education of common children. 133] Tax. even if only one spouse signs a subsequent promissory note [DPB v. and they are jointly liable for payment. creditors need not prove that the debts benefited the family Taxes and expenses (1) Parag.

when abroad. jointly. 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. par. the husband’s decision shall prevail. and liabilities of either spouse arising from crime/quasi-delict . and disposition Art.activities for self-improvement Ante-nuptial debts not under parag. 124. is void ab initio [Abalos v. which is prohibited Expenses of litigation between spouses. 96: Administration of property belongs to both spouses. which must be availed of within 5 years from the date of the contract implementing such decision Sale by the husband of property belonging to the conjugal partnership without the consent of the wife. the spouses are solidarily liable for the unpaid balance UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 35 Absolute Community Property Conjugal Partnership Of Gains from their separate properties Gambling losses shall be borne by the losing spouse’s separate property [Art. Capacitated spouse may assume sole powers of administration. or unable to participate in the administration. If they disagree. 1: Administration of property belongs to both spouses. However. 9. the husband’s decision prevails. jointly. In case of disagreement. power is limited to administration. 7.g. Hence. the wife has 5 years to seek recourse from the court. it is presumed she agreed to his decision. support of illegitimate children. Art. administration. 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.Only if the debtor-spouse has no exclusive property or his/her property is insufficient . Otherwise. when there is no showing that the latter is incapacitated. However. subject to recourse by the wife for proper remedy. except when suit is groundless If community property is insufficient except in parag. 95] Ownership. Exception: When the other spouse is incapacitated.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 Ayala Investment v. e. enjoyment. the creditors cannot go against the conjugal partnership property of the husband in satisfying the obligation subject of the surety agreement. .

or separated in fact or has abandoned the other or consent is withheld or cannot be obtained. 125. Even assuming that the rules on summary proceedings apply. cf. 98] Mere awareness of a transaction is NOT consent [Jader-Manalo v. any disposition or encumbrance of the conjugal property shall be void. IAC (1991): . CA (2000): FC124 contemplates a situation where one spouse is absent. [Art. par. 124. Art.Macatangay (2004)] Uy v. 98] Exceptions: (1) Moderate donations to charity due to family rejoicing or distress (2) Moderate gifts by each spouse to the other due to family rejoicing Moderation depends on the family’s socio-economic status. in coma. Sheriff of Manila (1937): Spouses are not co-owners of CPG during the marriage and cannot alienate the supposed ½ interest of each in the said properties. 2: Disposition or encumbrance of conjugal property requires the following: (1) Consent or approval by both spouses. [Art. dispose of his or her interest in the community property. The proper remedy is to file for guardianship under the ROC. or family distress [Art. ACP allows donations in excess of onefifth of present property of future spouses because the donation would form part of the community property once the marriage is celebrated. 97] However. Dallo (2005): UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 36 Absolute Community Property Conjugal Partnership Of Gains In the absence of (court) authority or written consent of the other spouse. Camaisa (2002)] Homeowner’s Savings & Loan Bank v. the will should refer only to his or her share in the community property. [Art. De Ansaldo v. through a will. the power of the administrator is the same as a guardian. on occasions of family rejoicing. or (2) Judicial authority secured in court Donation of one spouse without the consent of the other is not allowed. Art. [ Either spouse may. Such rules do not apply to cases where the non-consenting spouse is incapacitated or incompetent to give consent ie. Cheeseman v. So a spouse who desires to sell conjugal property as administrator must still observe the procedure for the sale of the ward’s estate required of judicial guardians under ROC not the summary judicial proceedings under FC. 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. 84] Donation of CPG must be with the consent of the other spouse except moderate donations for charity.

according to provisions on support Not affected by de facto separation [Art. cf. he/she is still required to support the other spouse and the family (2) If consent is necessary for transaction but is withheld or otherwise unobtainable. spouse present may ask for judicial authority to do this (6) If ACP is not enough and one spouse has no separate property. 100] Abandonment [Art. 100] De facto separation does not affect the ACP. authorization may be obtained from the court (3) Support for family will be taken from the ACP (4) If ACP is insufficient. spouse who has property is liable for support. cf. 99]: (1) Death of either spouse – follow rules in Art. subject to precautionary conditions that the court may impose . except that: (1) Spouse who leaves the conjugal home without just cause shall not be entitled to support.If however. 103 (2) Legal separation – follow rules in Arts. Art. 128. 63 and 64 (3) Annulment or judicial declaration of nullity – follow rules in Arts. 126. The property is presumed to be owned exclusively by the Filipino spouse. spouses shall be solidarily liable (5) If it is necessary to administer or encumber separate property of spouse who left. the Filipino spouse may encumber or dispose of the property w/o the consent of the former. however. 50 and 52 (4) Judicial separation of property during marriage – follow rules in Arts. 134 to 138 Terminates upon [Art. 101] Present/aggrieved spouse may petition the court for: (1) Receivership (2) Judicial separation of property (3) Authority to be the sole administrator of the absolute community. Dissolution of the regime Terminates upon [Art. one of the spouses is an alien. 99]: (1) Death (2) Legal separation (3) Annulment or judicial declaration of nullity (4) Judicial separation of property Rules on de facto separation [Art. Art.

Creditors can go after the separate properties of the spouses. without prejudice to the provisions of law on forfeitures and delivery of presumptive legitimes . Spouse is prima facie considered to have Abandonment and absence [cf. and they will also divide into two equal shares whatever is left of the community assets. or net remainder is divided equally between the spouses. with market values (b) Obligations are paid with community property.A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. 102] (a) Inventory of assets of ACP and of spouses. Art. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 37 Absolute Community Property Conjugal Partnership Of Gains abandoned the other spouse and the family if he or she has: (1) Left for a period of 3 months (2) Failed to inform the other spouse of his or her whereabouts for a period of 3 months Liquidation of assets and liabilities Procedure [Art. CA (1992): Physical separation of the spouses. 101] Partosa-Jo v. irrespective of how much each brought into the community (e) If personal obligations of a spouse exceed his/her separate property. which are solidarily liable for the deficiency (c) Delivery of whatever remains in their exclusive property (d) Balance. coupled with the husband’s refusal to give support to the wife. 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 (f) After covering all community obligations and obligations of spouses. sufficed to constitute abandonment as a ground for an action for the judicial separation of their conjugal property. and separate obligations not charged to ACP paid by respective assets of spouses If obligations exceed the assets of the ACP. balance of separate properties shall be delivered to respective spouses or their heirs. nothing is divided.

(b) Non-compliance with liquidation procedures would mean that a subsequently contracted marriage will follow a regime of complete separation of property. used for the benefit of the family (7) Net remainder of CPG shall constitute the profits which shall be divided equally between husband and wife except when: (a) A different proportion or division was agreed upon in the marriage settlements (b) There has been a voluntary waiver or forfeiture of such share as provided in the FC (8) Presumptive legitimes are delivered to common children (9) Conjugal dwelling goes to: (a) Spouse with whom majority of common children choose to remain (below 7 y. fruits. Procedure for liquidation of properties of two marriages [Art. the ownership of which has been vested by law in the conjugal partnership (4) Debts and obligations of CPG shall be paid out of the conjugal assets. any disposition or encumbrance involving community property of the terminated marriage shall be void. 134.Procedure [Art. even due to fortuitous event. they shall be divided between two communities in proportion to the capital and duration of each. surviving spouse shall liquidate the community property either judicially or extra-judicially within one year from the death of the deceased spouse.o. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 38 SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING THE MARRIAGE Art. = deemed to have chosen the mother) (b) Whoever the court chooses in case of lack of majority Rules in case of termination of marriage by death of one of the spouses [Art. 104]: (1) The community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased spouse. and income of each community upon such proof as may be considered according to the rules of evidence. In the absence of an express declaration in the marriage settlements. 104]: (1) Determine the capital. the separation of property between . 129] (1) Prepare an inventory of all properties (2) Amounts advanced by CPG in payment of personal debts and obligations shall be credited to the CPG (3) Reimburse each spouse for the use if his/her exclusive funds in the acquisition of property or for the value of his or her exclusive property. (2) If no such judicial settlement proceeding is instituted. (2) In case of doubt as to which community the existing properties belong. (a) If no liquidation is made within the period. otherwise both spouses are solidarily liable with their exclusive property (5) Remains of the exclusive properties shall be delivered to respective owner-spouses (6) Indemnify loss/deterioration of movables belonging to either spouse.

135) (CALASA) Grounds for Return to Previous Regime (Art.spouses during the marriage shall not take place except by judicial order. (a) Sufficient Causes and Grounds for Return to Previous Regime Sufficient Causes for Judicial Separation of Property (Art. Such judicial separation of property may either be voluntary or for sufficient cause. being satisfied that the spouse granted the power of administration in will not again abuse that power. Separation of Property When it applies Agreed upon in the marriage settlements by the spouses Mandatory under Arts. business. No voluntary separation of property may thereafter be granted. authorizes the resumption of said administration (6) At the time of the petition. (6) Reconciliation and resumption of common life of the spouse who have separated in fact 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. industrial or civil fruits of spouse’s separate properties May be total or partial . they agree to the revival of the former property regime. 141) (1) Spouse of petitioner has been sentenced to a penalty which carries with it the penalty of civil interdiction (1) Termination of the civil interdiction (2) Spouse of petitioner 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 (4) Spouse of petitioner 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. or industry Natural. 103 & 130 (subsequent marriages contracted by a surviving spouse without judicial settlement of previous property regime) Default property regime when there is reconciliation between spouses after judicial separation of property What it consists of Present or future property or both Each spouse’s earnings from his or her own profession. the spouses have been separated in fact for at least 1 year and reconciliation is highly improbable. JUDICIAL SEPARATION OF PROPERTY MAY EITHER BE (1) VOLUNTARY OR (2) FOR SUFFICIENT CAUSE.

property not considered separate is presumed to pertain to the ACP Liabilities Family expenses: Both spouses are liable in proportion to their income. administration. 37 (e) Void marriages by reason of public policy under Art. 38 (void marriage by reason of public policy) (d) not bigamous Man and woman living together as husband and wife. NOT capacitated to marry (a) Under 18 years old (b) Adulterous relationship (c) Bigamous/polygamous marriage (d) Incestuous marriages under Art. and disposition Spouses may own. dispose. the separation of property may prejudice the rights and shares of the children. PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE. 38 Other void marriages due to absence of formal requisite Salaries and wages Owned in equal shares Separately owned by parties Properties acquired through exclusive funds Remains exclusive. ARTS. One spouse becomes a fugitive Conveyance between the spouses is allowed under Art. without any legal impediment) (a) at least 18 years old (b) not Art. 37 (incestuous void marriage) (c) not Art.5.If partial. enjoyment. 147 Art. with capacity to marry (Art. Maquilan (2007): A compromise agreement with judicial recognition is valid. One spouse is judicially declared an absentee 3. based on the current value of their separate properties Creditors for family expenses: Spouses solidarily liable Ownership. Maquilan v. One spouse becomes the other spouse’s guardian 2. and administer separate estates without the consent of the other Administration of exclusive properties may be transferred between spouses when: 1. 147-148 Art. 148 Applicability Man and woman living together as husband and wife. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 39 In Re: voluntary dissolution of CPG of spouses Bernas (1965): A voluntary separation of properties is not perfected by mere consent but upon the decree of the court approving the same. provided there is proof Remains exclusive . 1490. One spouse is given the penalty of civil interdiction 4. if insufficient. pending petition for declaration of nullity of marriage. possess. NCC. The petition for voluntary separation of property was denied because the children of the 1st and 2nd marriages were not informed.

If one party did not participate in acquisition. while there was a subsisting marriage apart from the union without marriage. CA (2004): Transfer of certificate and tax declarations are not sufficient proof of joint contribution. and the other party cannot be held jointly/severally liable for it Properties acquired by both through work and 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 No presumption of joint acquisition.Villanueva v. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 40 Yaptinchay v. presumed to have contributed through care and maintenance of family and household Joaquina v. Jose (1979): Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the marriage. Reyes (2004): Prohibitions against donations between spouses must likewise apply to donations between persons living together in illicit relations Forfeiture (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. Juaniza v. there is a presumption of equal sharing. Forbes house goes to the CPG of subsisting marriage Juaniza v. such share belongs to the innocent party If one party is validly married to another his/her share in the coowned 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. and the other party cannot be held jointly/severally liable for it Villanueva v. Joaquino v. his/her share shall be forfeited in the same manner as that provided in Art 147. each vacant share shall belong to the respective surviving descendants In the absence of such descendants. Jose (1979): Property acquired by a married party during cohabitation with another not his spouse belongs to the CPG of the marriage. The same rules on forfeiture shall apply if both parties are in bad faith. therefore. Reyes (2004): Prohibitions against donations between spouses must likewise apply to donations between persons living together in illicit relations. When there is evidence of joint acquisition but none as to the extent of actual contribution. the N. CA (2004): Transfer of certificate and tax declarations are not sufficient proof of joint contribution. . there was no proof of actual contribution. Torres (1969): Application of Article 148.

which may not be the subject of compromise. practice or agreement destructive of the family shall be recognized or given effect. RTC (1999): Whenever a stranger is a party in a case involving family members. (4) Future support. CC. THE FAMILY AS AN INSTITUTION ASPECTS OF FAMILY RELATIONS (1) External Aspect (a) Governed by law (Art. General rule: (Art. family relations are governed by law and no custom. is a basic social institution which public policy cherishes and protects. 149) (b) Only in this aspect can third persons and the public interest be concerned (2) Internal Aspect (a) Sacred to the family and inaccessible to law because law must respect the freedom of action of man (b) E. being the foundation of the nation. practices and customs of family FAMILY RELATIONS INCLUDE: (1) Between husband and wife (2) Between parents and children (3) Among other ascendants and descendants (4) Among brothers and sisters. spiritual relations. (3) Any ground for legal separation. the requisite showing of earnest . career or profession of spouses.Valdez vs.g. profession and career of spouses. 149. (6) Future legitime Hontiveros v. EXCEPTIONS TO THE GENERAL RULE – CANNOT BE SUBJECT OF COMPROMISE (ART 2035. The rules shall not apply to cases. VJLAFF) (1) Civil status of persons. 151): No suit between members of the same family shall prosper. (5) Jurisdiction of courts. The Family Art. QC-RTC (1996): Marriages that have been declared void come under the rules of co-ownership under FC147/148 regardless of the reason. Consequently. Except: For a suit between members of the same family to prosper. The family. (2) Validity of marriage or a legal separation. sexual relations of spouses. 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. full or half blood.

efforts to compromise is no longer mandatory. 154) (1) Husband and wife. (4) Debts due to laborers. (3) Debts secured by mortgages on the premises before or after such constitution. or an unmarried person who is the head of the family (2) Parents (may include parent-in-laws). as such inclusion of a stranger takes the case out of the ambit of Art. 161) The provisions of the Chapter on Family Home shall govern existing family residences insofar as said provisions are inapplicable (Art. and Two hundred thousand pesos (P200. at the time of the constitution. 155) (1) Nonpayment of taxes. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 41 INCLUDES: (1) Dwelling house where they and their family reside (2) The land on which it is situated (Art. 153): (1) Execution (2) Forced sale (3) Attachment Exceptions in the exemption of the family home from execution (Art. builders. descendants. materialmen and others who have rendered service or furnished material for the construction of the building. THE FAMILY HOME CONSTITUTED BY: (1) Jointly by the husband and the wife (2) By an unmarried head of a family.159) (6) Can only constitute one family home General rule: The family home is exempt from (EFA) from the time of its constitution and so long as any of its beneficiaries actually resides therein (Art. 157) A person may constitute and be the beneficiary of only one family home (Art. brothers and sisters . 152) The actual value of the family home shall not exceed.000. (Art. 151. architects. ascendants.00) in rural areas or such amounts as may hereafter be fixed by law.00) in urban areas.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. 162) 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. mechanics.000. the amount of Three hundred thousand pesos (P300. (2) Debts incurred prior to the constitution of the family home. BENEFICIARIES OF THE FAMILY HOME (ART.

155 and has reasonable grounds to believe that the family home is worth more than the amount fixed in Art. (3) If the creditor proves that the actual value exceeds the maximum amount the court will order its sale in execution. Procedure to avail of right under Art. or as long as there is a minor beneficiary. In case of death of one or both spouses or the unmarried head of the family (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. and (3) majority of the beneficiaries of legal age Note: If there is a conflict. the Court will decide. (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. 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 (3) They are dependent for legal support on the head of the family REQUIREMENTS FOR THE SALE. 158) (1) the written consent of the person constituting it. DONATION. OR ENCUMBRANCE OF THE FAMILY HOME (ART.(legitimate/illegitimate). The heirs cannot partition the home unless the court finds compelling reasons therefore. ASSIGNMENT. ALIENATION. the obligation enumerated in Article 157 must be paid UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 42 (b) Then the judgment in favor of the creditor will . REQUISITES FOR CREDITOR TO AVAIL OF THE RIGHT UNDER ARTICLE 160 (If a claim of a creditor is not among the exceptions mentioned in Art. 160 (1) The creditor must file a motion in the court proceeding where he obtained a favorable decision for a writ of execution against the family home. (2) his/her spouse. 157. (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 Art. the proceeds shall be applied as follows: (a) First. (4) If the family home is sold for more than the value allowed. 157) Requisites: (1) He must be a judgment creditor.

159 of the FC regarding the 10 year period is applied. 165): (1) Natural (a) Legitimate (b) Illegitimate (2) Legal Fiction (Adoption) LEGITIMATE CHILDREN WHO ARE LEGITIMATE CHILDREN (ART. plus all the costs of execution (c) The excess. 165] Exceptions: (1) Children of marriages void under Art. 164) Requisites to be considered legitimate: (a) Artificial insemination made on wife (b) Sperm comes from any of the following: (1) Husband (2) Third Person Donor (3) Husband and third person donor (c) In case of donor sperm. Paternity and Filiation KINDS OF FILIATION (ARTS. [Tolentino]: Dual consent is required whether the semen used comes from the husband or a third person donor WHO ARE ILLEGITIMATE CHILDREN General rule: Those conceived and born outside of a valid marriage. 164. he must be dependent on the head of the family. 160. The beneficiary should satisfy all requisites.be paid. FC. Liyao (2002)]: A child conceived or born during a valid marriage is presumed to belong to that marriage. Dario III (2006): WON the grandson of the deceased is a beneficiary according to Art. (2) Recorded in the civil registry together with the birth certificate of the child. husband and wife must authorize/ratify insemination in a written instrument (1) Executed & signed by husband and wife before the birth of the child. 164) Those conceived or born during the marriage of parents either by natural means or by artificial insemination Natural/Biological [Liyao v. Mandolaria (2006): The proof that the house is the family home must be alleged against creditors. if any. the family home includes the land it is built on. 154 FC. 36 . the parties involved must wait. Arriola (2008): This case involves half-brothers and a second wife. regardless of the existence of extramarital relationships. [Art. shall be delivered to the judgment debtor Versola v. Artificial Insemination (Art. 163. Applied the rule in Art. Patricio v. Arriola v. The rule in Art.

Assidao-De Castro. IMPUGNING LEGITIMACY Grounds for impugning legitimacy of a child are [Art. violence. or undue influence Macadangdang v. (Sempio-Dy) De Castro v.(psychological incapacity). mistake. 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). Macaraig (1951): Serious illness of the husband which absolutely prevented him from having sexual intercourse with his wife. covered by Art. does not preclude copulation between the sick husband and his wife. Andal v. (2008): Common children born before the annulment are legitimate. 166(2). Jao v. or sick with syphilis in the tertiary stage so that copulation was not possible. 167]: (a) Mother may have declared against its legitimacy (b) Mother may have been sentenced as an adulteress (also applies to wife who was raped) (2) If the marriage is terminated and the mother contracted another marriage within 300 days . except Artificial Insemination (3) And in case of Artificial Insemination. (2) And under Art. But tuberculosis. the written consent of either parent was vitiated through fraud. even in its most crucial stage. and therefore entitled to support from each of the spouses. under "biological or other scientific reasons. 166]: (1) Physical impossibility for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the child's birth due to: (a) Physical incapacity of the husband to have sexual intercourse with his wife (b) Husband and wife were living separately as to make sexual intercourse impossible (c) Serious illness of the husband absolutely preventing sexual intercourse (2) Other biological or scientific reasons. CA (1980): Mere proximate separation between the spouses is not sufficient physical separation as grounds for impugning legitimacy. Legitimacy with regard to the mother: (1) Child considered legitimate although [Art. CA (1987): Blood-type matching is an acceptable means of impugning legitimacy. like if the husband was already in comatose or a UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 43 vegetable." But this is only conclusive of the fact of non-paternity. intimidation.

(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. 169. General rule: Only the husband can impugn the legitimacy of a child. or the knowledge of registration of birth. which is a child without a status. 169] [Tolentino:] If nobody asserts the legitimacy or illegitimacy of the child described in Art. even if it be born within 300 days after the termination of the former marriage Note: The legitimacy or illegitimacy of a child born after 300 days following the termination of the marriage – burden of proof upon whoever alleges the status. 2. (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. provided it be born within 300 days after termination of the former marriage (b) If child born after 180 days following the celebration of the subsequent marriage – child is considered conceived during such marriage. or (2) From the discovery or knowledge of its registration. [Art. the rules shall govern in the absence of proof to the contrary [Art 168]: (a) If child born before 180 days after the solemnization of the subsequent marriage – child is considered conceived during the former marriage. If he does not bring an action within the prescribed periods. ACTION FOR IMPUGNING LEGITIMACY [ARTS. this interpretation is better than the anomalous situation created by Art. (3) Whichever is earlier. Legitimacy cannot be presumed here since the birth was beyond the 300-day period of gestation. 170 AND 171] May be brought within 1. 169. he cannot file such action anymore thereafter. Exception: That the heirs of the husband may file the .after the termination of the former marriage. the above periods shall be counted: (1) From the discovery or knowledge of the birth of the child. While it goes against the policy of law to lean in favor of legitimacy. and this is also true with his heirs. the child should be considered illegitimate unless legitimacy is proved. or 3 years from the knowledge of the birth.

174]: (a) To bear the surnames of the father and the mother. 172]: (1) Primary Evidence (a) Their record of birth appearing in the civil registry. in conformity with the provisions of the Civil Code on Surnames (b) To receive support from their parents. and in proper cases. 170 [Art. their ascendants. and once commenced such action survives even after the death of the parents.action or continue the same within the periods prescribed in Art. 173]: (a) The child can bring the action during his or her lifetime. 175] ACTION FOR CLAIMING FILIATION [ART. (b) If the child dies during minority or in a state of insanity. their brothers and sisters. (b) 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 (2) Secondary Evidence (a) Proof of open and continuous possession of status as legitimate or illegitimate child (b) Any other means stated by the rules of court or special laws Note: Only in the absence of primary evidence can secondary evidence be admitted UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 44 ACTION FOR CLAIMING FILIATION [ART. PROOF OF FILIATION Legitimate children may establish their filiation by any of the following [Art. Sayson v. in conformity with the provisions of this Code on Support (c) To be entitled to the legitimate and other successional rights granted to them by the Civil Code ILLEGITIMATE CHILDREN Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence (primary or secondary) as legitimate children. RIGHTS OF LEGITIMATE CHILDREN [ART. such action shall be transmitted to his heirs. 171]: (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 therefrom (c) If the child was born after the death of the husband. 175]: . [Art. who shall have a period of five years within which to institute the action. CA (1992): Legitimacy can only be attacked directly. The action does not prescribe as long as he lives.

or coffin plates. CA (1998): Rule 130. CA (1975): Marriage certificates cannot be used as proof of filiation. Signature on a report card under the entry of "Parent/Guardian" is likewise inconclusive of open admission. and no further court . and giving the child the reputation of being a child of his parents. De Jesus v. (b) For actions based on secondary evidence. Sec. constant attendance to the child's support and education. monuments. Acebedo v. treatment by the parents and family of the child as legitimate. De Jesus v. Arquero (2003): Baptismal certificates are only conclusive of the sacrament administered. a will. is in itself a consummated act of acknowledgement of the child. and cannot be used as proof of filiation. Baluyut (1990): Unsigned birth certificates are not evidence of recognized filiation. Baluyut v. Melia (1966): Baptismal certificates are given probative value only for births before 1930. like bearing the paternal surname. Heirs of Rodolfo Bañas v. Jison v. Heirs of Bibiano Bañas (1985): "Su padre [Your father]" ending in a letter is only proof of paternal solicitude and not of actual paternity. a statement before a court of record. 173 apply. 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. CA (2005): DNA evidence can be used as proof of paternity. 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. Agustin v. 40 is limited to objects commonly known as family possessions reflective of a family's reputation or tradition regarding pedigree like inscriptions on tombstones.(a) For actions based on primary evidence. Estate of Decedent Juan Gamboa Dizon (2001): The due recognition of an illegitimate child in a record of birth. Mendoza v. or in any authentic writing. Lim v. the action may only be brought during the lifetime of the alleged parent. Birth certificates must be signed by the parents and sworn for it to be admitted as evidence. the same periods stated in Art. Eceta v.

UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 45 Estate of Rogelio Ong v. A prima facie case exists if a woman declares — supported by corroborative proof — that she had sexual relations with the putative father. affirmative defenses. Gotardo v. (c) The possibility of contamination of the samples. the two affirmative defenses available to the putative father are: (1) incapability of sexual relations with the mother due to either physical absence or impotency. Meanwhile. 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. the burden of evidence shifts to the putative father. Alba (2005): In assessing the probative value of DNA evidence. Baring and Perla (2012): To prove open and continuous possession of the status of an illegitimate child. courts should consider. Further.action is required. by continuous and clear manifestations of parental affection and care. Baptismal certificates are per se inadmissible in evidence as proof of filiation and they cannot be admitted indirectly as circumstantial evidence to prove the same RIGHTS OF ILLEGITIMATE CHILD [ART. presumption of legitimacy. 176]: (a) Use the surname and be under the parental authority of the mother . (f) The qualification of the analyst who conducted the tests. Gono-Javier vs. therefore. Perla v. among other things. or (2) that the mother had sexual relations with other men at the time of conception. Buling (2012): There are four significant procedural aspects of a traditional paternity action that parties have to face: a prima facie case. Diaz (2007): DNA evidence can still be used even after the death of the parent. (d) The procedure followed in analyzing the samples. there must be evidence of the manifestation of the permanent intention of the supposed father to consider the child as his. (b) How they were handled. at this point. (e) Whether the proper standards and procedures were followed in conducting the tests. the lack of participation of the supposed father in the preparation of a baptismal certificate renders this document incompetent to prove paternity. the following data: (a) How the samples were collected. which cannot be attributed to pure charity. and physical resemblance between the putative father and the child.

(3) The child is not really the child of the alleged parents. at the time of the child's conception. 181] GROUNDS FOR IMPUGNING LEGITIMATION: (1) The subsequent marriage of the child's parents is void. 178] (b) Effects of legitimation shall retroact to the time of the child’s birth [Art. 177). 180] (c) Legitimation of children who died before the celebration of the marriage shall benefit their descendants [Art. LEGITIMATED CHILDREN "Legitimated" children are illegitimate children who because of the subsequent marriage of their parents are. [Art. were not disqualified by any impediment to marry each other (Art. Except for such modification. all other provisions of the Civil Code governing successional rights shall remain in force. and (2) General rule: The parents. considered legitimate.(b) However. the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime [RA 9255] (c) Shall be entitled to support in conformity with the Family Code (d) Legitime shall consist of one-half of the legitime of a legitimate child. (2) There is an admission in a public document or private handwritten instrument made by the father. (3) Provided. by legal fiction.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 child’s conception may be legitimated. (2) The child allegedly legitimated is not natural. (Sempio-Dy) RIGHTS: The same as those of legitimate children [Art. PROCEDURE: (a) Legitimation shall take place by a subsequent valid marriage between the parents. 182] (1) May be made only by those who are prejudiced in their rights (2) Within five years from the time their cause of action accrues UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION . may use the surname of their father if (1) Their filiation has been expressly recognized by the father through the record of birth appearing in the civil register. The annulment of a voidable marriage shall not affect the legitimation. 179] IMPUGNING LEGITIMATION [ART. Exception: RA 9858 . TO BE CAPABLE OF LEGITIMATION: (1) The child must have been conceived and born outside of wedlock.

but with exceptions allowing only one of them to apply [RA 85520] Effect on parent-child relationship 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 relationship only between the child and the adopting parents ADOPTION is a juridical act. RA 8552 – DOMESTIC ADOPTION LAW WHO CAN ADOPT (1) Filipino Citizens (a) Of legal age (b) With 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. which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. except when adopter is biological parent of the adoptee or is the spouse of the adoptee’s parent (g) In a position to support and care for his/her children in keeping with the means of the family (2) Aliens Same for Filipinos provided further that: (1) At least 27 years old .PAGE 46 Adoption Legitimation Adoption Legal effect 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 Natural Children Strangers (generally) Procedure Extrajudicial acts of parents Always by judicial decree Who should apply Both parents Both parents.

or emergency reasons are allowed) in RP prior to the filing of application and maintains such residence until the decree is entered (4) 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 (5) His/her government allows the adoptee to enter his/her country as his/her adoptee (6) Has submitted all the necessary clearances and such certifications as may be required **Items 3. parental authority shall be exercised jointly WHO CAN BE ADOPTED (a) Minor who has been administratively or judicially declared available for adoption (b) Legitimate child of one spouse by another (c) Illegitimate child by a qualified adopter to improve the child’s status to that of legitimacy (d) A person of legal age if. said person has been consistently considered and treated by the adopter(s) as his/her child since minority (e) A child whose previous adoption has been rescinded (f) A child whose biological or adoptive parent(s) has died. EXCEPT: (1) If one spouse seeks to adopt the legitimate child of the other (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 Note: If spouses jointly adopt. prior to the adoption. Husband and wife shall adopt jointly. provided that no proceedings shall be initiated within 6 months from the time of death . business.(2) His/her country has diplomatic relations with the Philippines (3) Has been living continuously for 3 years (provided that absences not exceeding 60 days per 1 year for professional. 4 and 5 may be waived under the following circumstances: (a) Adopter is a former Filipino Citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity (b) Adopter seeks to adopt the legitimate or illegitimate child of his/her Filipino spouse (c) Adopter is married to a Filipino Citizen and seeks to adopt jointly with his/her spouse a relative within the 4th 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.

without proper shelter. raped. seduced. overworked. if available . Note: A decree of adoption shall be effective as of the date the original petition was filed. including foundlings (2) Neglected child – his basic needs have been deliberately unattended or inadequately attended within 3 continuous months either by: (a) Physical Neglect – child is malnourished. exploited. of the person adopting or to be adopted. or without proper provisions (b) Emotional Neglect – child is maltreated. or in moral danger (3) Required supporting documents for a petition for the declaration of involuntary commitment: (a) Social Case Study Report by DSWD / LGU / institution charged with child’s custody (b) Proof of efforts to locate the child’s parents/known relatives (1) Written certification that a local/national radio/TV case was aired on 3 different occasions (2) Publication in 1 newspaper of general circulation (3) Police report / barangay certification of due diligence (4) Returned registered mail to last known address of parents (c) Birth certificate. PRE-ADOPTION PROCEDURES (1) Voluntary Commitment of biological mother wanting to put her child up for adoption (2) Involuntary Commitment of abandoned or neglected child Notes: (1) Abandoned child – no proper parental care/guidance. if any. legal guardian or the government instrumentality or institution that has custody of the child (3) The prospective adopters’ legitimate and adopted children who are 10 years or older (4) The prospective adopters’ illegitimate children. who are 10 years or older and living with them (5) The spouse. It also applies in case the petitioner dies before the issuance of the decree of adoption to protect the interest of the adoptee. 9] (1) The prospective adoptee if 10 years or older (2) The prospective adoptee’s biological parents. if any. illclad.of said parent(s) UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 47 Persons whose written consent is necessary for adoption [Sec. or parents have deserted him/her for at least 3 continuous months.

and other services for his/her reintegration to the community Biological parent(s) who decide to keep the child shall be provided with adequate services and assistance to fulfill their parental responsibilities Biological parent(s) who decide to put the child for adoption shall sign the Deed of Voluntary Commitment (DVC).(d) Recent photo and photo upon abandonment of child ADOPTION PROCEDURES Inquiry of prospective adopters at DSWD Attendance of DSWD Adoption Fora and Seminars (include counseling) Application for Adoption Counseling on her options other than adoption Explaining to her the implications of losing her parental authority over the child Continuing services shall be provided after relinquishment to cope with feelings of loss. the court may also issue a travel authority. etc. with respect to the ward prior to the approval of the final accounts rendered upon the termination of the guardianship (2) Any person convicted of a crime of moral turpitude Art. DSWD to provide post adoption services WHO MAY NOT ADOPT/ BE ADOPTED Art. which shall be rescissible within 3 months from signing of the same Filing of a petition at Regional DSWD in the form of an affidavit and with the required supporting documents Posting of the petition. 187 The following may not be adopted: (1) A person of legal age unless he is a natural child of the adopter or of his/her spouse. then recommendation by the Regional Director of the DSWD (5 days each) Issuance of certification by DSWD Secretary declaring the child legally available for adoption UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 48 Note: After the decree of adoption. 184 (as amended by RA 8552) The following may not adopt: (1) The guardian. if needed. [Art. and the same shall be vested on the adopter. or he was treated as a natural child since minority (2) An alien whose government has no diplomatic relations with the Philippines (3) A person already adopted unless his adoption has been previously revoked/rescinded RIGHTS OF AN ADOPTED CHILD (a) Parental Authority All legal ties between biological parents and adoptee are severed. 189 as . except if the biological parent is the spouse of the adopter.

descendants and the surviving spouse of the adoptee shall inherit in accordance with the ordinary rules of legal/intestate succession (2) When the surviving spouse OR illegitimate children AND adopters concur. An adopted child shall bear the surname of the adopter. based on the ff. and shall be entitled to all the rights and obligations provided by law to legitimate children born to them without discrimination of any kind. Rules on legal or intestate succession to the estate of the adoptee: (1) Legitimate and illegitimate children. 365. If adoptee and his/her biological parents had left a will. [Art. they shall inherit on a 1/3-/1/3-1/3 basis (4) When only adopters survive. 190 as amended. with the assistance of DSWD if he/she is a minor or over 18 but incapacitated. RESCISSION OF ADOPTION Adoptee may request for rescission. being in the best interest of the . NCC. [Art. the law on testamentary succession shall govern. 189 as amended] (c) Succession Adopter and adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. ordinary rules of legal or intestate succession shall apply Art. they shall inherit 100% of the estate (5) When only collateral blood relatives survive. they shall inherit on a 50-50 basis (3) When the surviving spouse AND illegitimate children AND adopters concur. in legal and intestate succession.amended] (b) Legitimacy The adoptee shall be considered legitimate son/daughter of the adopter for all intents and purposes. 189 as amended] Art. grounds: (1) Repeated physical and verbal maltreatment by adopters despite having undergone counseling (2) Attempt on life of adoptee (3) Sexual assault or violence Matching Placement Case Study Report Supervised Trial Custody Home Study Report Recommendation and Consent of DSWD Petition for Adoption Adoption Decree Certificate of Availability for Adoption UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 49 (4) Abandonment or failure to comply with parental obligations Note: Adoption.

the adopter of a crime punishable by imprisonment for more than 6 years (3) Conviction of adultery/concubinage with the adopter’s spouse (4) Having caused the adopter to make or change a will by force. simulated the birth of a child shall not be punished for such act. 20]: (1) Parental authority of the adoptee's biological parents. without grounds. However.00). PROVIDED: (a) The simulation was for the child’s best interest (b) Child has been treated consistently as his own (c) Petition filed within 5 years of RA 8552’s . intimidation or undue influence (5) Refusal without just cause to support the adopter (6) Maltreatment of the adopter by word/deed (7) Living a dishonorable/disgraceful life (8) Conviction of a crime which carries with it the penalty of civil interdiction Effects of Rescission [Sec. causing said child to lose his true identity/status Sec.child. but only as of the date of judgment of judicial rescission (5) Vested rights prior to judicial rescission shall be respected Note: Rescission contemplates a situation where the adoption decree remains valid until its termination RECTIFICATION OF SIMULATED BIRTH Simulation of birth is the tampering of LCR records to make it appear that a certain child was born to a person who is not his/her biological parent. shall not be subject to rescission by the adopter(s).000. 21-b (RA 8552) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is not his/her biological parent(s) shall be guilty of simulation of birth. the adopter(s) may disinherit the adopted based on causes enumerated in Art. 919 of the NCC: (1) Conviction of an attempt on the life of the adopter (2) Having accused. and shall be punished by prision mayor in its medium period and a fine not exceeding Fifty thousand pesos (P50. if known. Sec. 22 (RA 8552) A person who has. OR the legal custody of the DSWD shall be restored if the adoptee is still a minor or incapacitated (2) Reciprocal rights and obligations of the adopters and the adoptee shall be extinguished (3) Court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her original birth certificate (4) Succession rights shall revert to its status prior to adoption. prior to the effectivity of RA 8552.

the U.N. Convention on the Rights of the Child. . and has undergone the appropriate counseling from an accredited counselor in his/her country (d) Has not been convicted of a crime involving moral turpitude (e) Is eligible to adopt under his/her national law (f) Is in a position to provide the proper care and support and to give the necessary moral values and example to all his children. the supervised trial custody is undertaken. (b) A legally-free child is one who has been voluntarily or involuntarily committed to the DSWD of the Philippines. and the decree of adoption is issued outside the Philippines WHO CAN ADOPT 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: (a) Is at least 27 years of age and at least 16 years older than the child to be adopted. his/her spouse must jointly file for the adoption (c) Has the capacity to act and assume all rights and responsibilities of parental authority under his national laws. 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 (b) If married. and to abide by the rules and regulations issued to implement the provisions of this Act (h) 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 UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 50 WHO CAN BE ADOPTED (a) Only a legally-free child may be the subject of inter-country adoption. including the child to be adopted (g) Agrees to uphold the basic rights of the child as embodied under Philippine laws.effectivity (2003) Three-in-one Procedure (a) Correction of entries in birth certificate (b) Declaration of abandonment (c) Adoption decree RA 8043 – THE LAW ON INTER-COUNTRY ADOPTION 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. in accordance with the Child and Youth Welfare Code.

Republic (2006) Consents for adoption must be written and notarized. CA (1992): Where the petition for adoption was granted after the child had shot and killed a girl. Santos v. 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. Petition must be announced in publications and only those proclaimed by the court are valid.”) . Sayson v. the statutory requirements in order to prove it must be strictly carried out. 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. Adoption is never presumed. Belen (1997): Participation of the appropriate government instrumentality in performing the necessary studies and precautions is important and is indispensable to assure the child’s welfare. as necessary (f) Recent photo of the child Tamargo v. (d) In order that such child may be considered for placement. Landingin v. It does not extend to the blood relatives of either party. Campos (1979): Adoption is a juridical act. DSWD v. however. proceeding in rem. In the instant case. The relationship created by the adoption is between only the adopting parents and the adopted child. 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. Aranzanso (1966): Validity of facts behind a final adoption decree cannot be collaterally attacked without impinging on that court’s jurisdiction. Lazatin v. CA (1992): Adopted children have a right to represent their adopters in successional interests.(c) No child shall be matched to a foreign adoptive family unless it is satisfactorily shown that the child cannot be adopted locally. (“Although an adopted child shall be deemed to be a legitimate child and have the same rights as the latter. Because it is artificial. these rights do not include the right of representation. 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.

[Art. [Art. [Art. 194] (b) Transportation includes expenses in going to and from school. [Art. EXCEPT when the need for support of one (of age) is due to a cause imputable to his/her fault or negligence. dwelling. [Art. in keeping with the financial capacity of the family. Hernandez (1996): The change of surname of the adoptee as a result of the adoption and to follow that of the adopter does not lawfully extend to or include the proper or given name. PROPERTIES ANSWERABLE FOR SUPPORT From the separate property of the obligor. as it appears in the civil register. 194] (a) Education includes a person’s schooling or training for some profession. or to and from place of work. 196] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 51 Note: Both legitimate and illegitimate children are entitled to support. subsists even beyond the age of majority. they must institute another action under Rule 103 of the Rules of Court. If no separate property. (c) Parents and their children (legitimate and illegitimate) and the children of the latter (legitimate and illegitimate). named the child for the sake of naming it. It does not matter if the mother. 194] WHO ARE OBLIGED TO SUPPORT EACH OTHER: (a) Spouses. 197] ORDER OF SUPPORT If there are multiple obligors (SDAB) (1) Spouses (2) Descendants. [Art. Support WHAT IT COMPRISES Consists of everything indispensable for sustenance. clothing. medical attendance. whether of full or half-blood. If they really want to change the name. 195] (e) Illegitimate brothers and sisters. nearest in degree (4) Brothers and Sisters [Art. 199] [Tolentino]: The order of liability among ascendants and descendants would be: (1) legitimate children . (d) Legitimate brothers and sisters. (b) Legitimate ascendants and descendants. trade or vocation. to be deducted from the obligor’s share upon liquidation of such regime. whether of full or half-blood. education and transportation. with all intention to abandon it later. nearest in degree (3) Ascendants. contains the official name.Republic v. especially the right to education. [Art. the ACP/CPG (if financially capable) shall advance the support. The birth certificate. 194] (c) The right and duty to support.

with right of reimbursement from the person obliged to give support. (3) illegitimate children and their descendants. [Art. 206] PERSON OBLIGED REFUSES OR FAILS TO GIVE SUPPORT When the person obliged to give support UNJUSTLY REFUSES OR FAILS to give support when urgently needed. it is the woman’s husband who is bound to pay the fees due to the physician. Also. Pelayo v. [Art. San Jose-Lacson (1968): Man is still liable for support in arrears since the mother advanced it from a stranger (the uncle of the daughters). If there are multiple recipients and only one obligor. (2) legitimate parents and ascendants. WITHOUT THE KNOWLEDGE of the person obliged to give support. it is given by a stranger. STRANGER GIVES SUPPORT When. the stranger has the right to claim the same from the person obliged. any third person may furnish support to the needy individual. Lacson v. no final judgment on the amount of support is made as the amount shall be in proportion to the resources or means of the giver and the necessities of the recipient. for this reason. unless it appears that he gave it without intention of being reimbursed. and the latter has no sufficient means to satisfy all claims: (1) Observe order in Article 199 (SDAB) as to whose claim shall be satisfied first. the payment shall be divided between them IN PROPORTION to their resources. (2) But if the concurrent obligees are the spouse and a child subject to parental authority. Lauron (1909): Even if the parents-in-law were the ones who called for the physician’s services for the childbirth of their daughter-in-law. judge may order only one obligor to furnish support without prejudice to reimbursement from other obligors of the share due from them (Art. in case of URGENT NEED and by special circumstances. Gotardo 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. the child shall be preferred. Buling (2012): The amount of support is variable and. Lacson v. This particularly . 200] [Tolentino]: 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. 200). So if the support comes from ACP or CPG.and descendants. the above rule of preference for the child does not apply. When two or more are obliged to give support.

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]
CONTRACTUAL SUPPORT OR THAT GIVEN BY WILL

The excess in amount beyond that required for legal
support shall be subject to levy on attachment or
execution. [Art. 208]
Reason: The amount of support agreed upon in the
contract or given in the will can be more than what
the recipient needs (Sempio-Diy).
Furthermore, contractual support shall be subject to
adjustment whenever modification is necessary due
to changes in circumstances manifestly beyond the
contemplation of the parties. [Art. 208]
SUPPORT DURING MARRIAGE LITIGATION
Pending legal separation or annulment, and for
declaration of nullity, 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.) [Art. 198]

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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]
AMOUNT
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]
WHEN DEMANDABLE
(a) 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]
(b) Support pendente lite may be claimed in
accordance with the Rules of Court. [Art. 203]
(c) Payment shall be made within the first five days
of each corresponding month. When the recipient
dies, his heirs shall not be obliged to return what
he has received in advance. [Art. 203]
OPTIONS
(a) Payment of the amount; or
(b) Receiving and maintaining the recipient in the
home of the provider, unless there is a legal or
moral obstacle for doing so.
ATTACHMENT
The right to receive support as well as any money or
property obtained as such support shall not be levied
upon on attachment or execution. (Art. 205)
[Tolentino:] This is to protect that which the law gives

to the recipient against want and misery.

Parental Authority

GENERAL PROVISIONS
Parental authority is 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]:
(1) The caring for and rearing of children for civic
consciousness and efficiency;
(2) The development of the moral, mental and
physical character and well-being of said children
PARENTAL AUTHORITY AND RESPONSIBILITY MAY NOT BE
RENOUNCED OR TRANSFERRED EXCEPT IN THE CASES
AUTHORIZED BY LAW. [ART. 210]
CASES WHEN PARENTAL AUTHORITY AND RESPONSIBILITY
MAY BE TRANSFERRED OR RENOUNCED:

(a) Adoption;
(b) Guardianship; or
(c) Commitment of the child in an entity or
institution engaged in child care or in a children’s
home
RULES AS TO THE EXERCISE OF PARENTAL AUTHORITY:
(a) Jointly exercised by the father and mother over
their common children, but in case of
disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary [Art.
211]
(b) Exercised by the mother if the child is illegitimate
[Art.176]
(c) Children under parental authority shall always
observe respect and reverence towards their
parents and are obliged to obey them [Art. 211]
CHARACTERISTICS OF PARENTAL AUTHORITY:
(1) Natural right and duty of parents [Art. 209, FC]
(2) Cannot be renounced, transferred or waived,
except in cases authorized by law [Art 210, FC]
(3) Jointly exercised by the father and the mother
[Art. 211, FC]
(4) Purely personal and cannot be exercised through
agents
(5) Temporary
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, UNSUITABILITY, REMARRIAGE, OR SEPARATION
OF PARENTS:
(1) In case one parent is absent or already dead, the
present or surviving parent [Art. 212]
- Remarriage of the surviving parent shall not
affect his/her parental authority over the

children, unless the court appoints another
person to be the guardian of the children or
their property [Art. 212]
(2) In case of a void/annulled marriage, and there is
no agreement between spouses, the parent
designated by the court [Art. 43 par. 1; Art. 49]
(3) Innocent spouse gets custody of minor children in
legal separation [Art. 63 par. 3]

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(4) 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 par. 1]
(5) Substitute parental authority [Art. 214]
(a) In case of death, absence or unsuitability of
the parents, substitute parental authority shall
be exercised by the surviving grandparent
(b) When several grandparents survive, the one
designated by the court shall exercise
parental authority, taking into account all
relevant considerations, especially the choice
of the child over seven years of age, unless the
grandparent chosen is unfit
DESCENDANT’S PRIVILEGE OF REFUSAL TO TESTIFY [ART.
215]: No descendant shall be compelled, in a criminal
case, to testify against his parents and grandparents.
Exception: When such testimony is indispensable in
(1) a crime against the descendant, or (2) a crime by
one parent against the other.
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 par 2; Gamboa v.
CA (2007)]
Examples of compelling reasons are:
(1) When the mother is insane;
(2) with a communicable disease that might
endanger the life or health of the child;
(3) is maltreating the child; or
(4) 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.
SUBSTITUTE AND SPECIAL PARENTAL
AUTHORITY
PERSONS EXERCISING SUBSTITUTE PARENTAL AUTHORITY
IN DEFAULT OF PARENTS OR JUDICIALLY APPOINTED
GUARDIAN (IN THIS ORDER):

(a) The surviving grandparent [Art. 214, FC]
(b) Oldest brother or sister, over 21 years old, unless
unfit or unqualified.
(c) Child’s actual custodian, over 21 years old, unless
unfit or unqualified.
Note: The same order applies to the appointment of
judicial guardian over the property of the child
SUBSTITUTE PARENTAL AUTHORITY OVER DISADVANTAGED

LIABILITY OF THOSE EXERCISING SPECIAL PARENTAL AUTHORITY OVER THE CHILD (ART. or (2) The individual. absence. or those exercising substitute parental authority over such minor for his acts and omissions Note: Both groups can use the defense that they exercised proper diligence to avoid liability UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 54 . 218 FC] (1) School.CHILDREN (ART. or in case of unsuitability of parents. Mary’s Academy v. 217) Entrusted in summary judicial proceedings to: (1) Heads of children’s homes (2) Orphanages Similar institutions duly accredited by the proper government agency (such as the DSWD) Who are disadvantaged children: (1) Foundlings (2) Abandoned (3) Neglected (4) Abused (5) Others similarly situated PERSONS EXERCISING SPECIAL PARENTAL AUTHORITY [ART. Carpitanos (2002): The special parental authority and responsibility applies to all authorized activities. St. entity or institution engaged in child care Note: Exercised over minor child while under their supervision. the parents temporarily relinquish parental authority over the child to the latter. entity or institution. its administrators and teachers. entity or institution Substitute Parental Authority Special Parental Authority It is exercised in case of death. 219 FC) (1) Principal and solidary liability for damages caused by the acts or omissions of the minor child while under their special parental authority (2) Subsidiary liability for the parents and judicial guardians of the minor. 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. authorized activities include those conducted both within or outside the school. whether inside or outside the premises of the school. instruction or custody.

220] (b) To educate. [Art. and a summary hearing shall be conducted wherein the petitioner and the child shall be heard. 220] (c) To defend them against unlawful aggression [Art. 220 which states that the parent has a right to impose necessary discipline on the child does not authorize the parent to invade or disregard the child’s honor and dignity under the mask of discipline. 222] The courts may appoint a guardian of the child’s property. either of his choice or appointed by the court. or a guardian ad litem when the best interests of the child so requires. 223] (3) If the court finds the petition meritorious. 223] (2) The child shall be entitled to the assistance of counsel. COURT ASSISTANCE IN THE DISCIPLINE OF THE CHILD [ARTS. adoption. 223-224] (1) The parents or. 221] SUBSTITUTE REPRESENTATION [ART. 220) (5) To disinherit them for just cause (Tolentino) People v Silvano (1999): Art. providing for their upbringing in accordance with their means [Art. 220] (4) To give or withhold consent to their marriage. and provide them with moral and spiritual guidance and love and understanding [Art. 220] (f) To answer for damages caused by their fault or negligence and for the civil liability for crimes committed by them.EFFECT OF PARENTAL AUTHORITY UPON THE PERSONS OF THE CHILDREN RIGHTS OF PARENTS UPON THE PERSON OF THE CHILDREN: (1) To have them in their custody [Art. for an order providing for disciplinary measures over the child. 220] (d) To give their lawful inheritance (Tolentino) (e) To perform such other duties as are imposed by law [Art. 220] (3) To demand from them respect and obedience and impose necessary discipline on them [Art. [Art. Such acts can never be justified as parental punishment. and employment (Art. 220] (2) To represent them in all matters affecting their interests [Art. DUTIES OF PARENTS UPON THE PERSON OF THE CHILDREN: (a) To support them. their marriage settlements. may petition the proper court of the place where the child resides. entity or institution exercising parental authority. in their absence or incapacity. disciplinary measures may include the commitment of the child for not more than 30 . their donations by reason of marriage. [Art. instruct. the individual.

225] (c) The ordinary rules on guardianship shall be merely suppletory except when the child is under special parental authority. the father’s decision shall prevail. [Art. (c) The petition shall be docketed as a summary special proceeding. the court may also order the deprivation or suspension of parental authority or adopt such other measures as it may deem just and proper. 224] (a) The parent exercising parental authority shall not interfere with the case of the child whenever committed but shall provide for his support. [Art. irrespective of the merits of the petition. or when the circumstances so warrant. [Art. The court shall determine the amount of the bond. [Art. or the guardian is a stranger. [Art. 225] (b) In case of disagreement.000. but shall not be less than 10% of the market value of the child’s property or of his annual income. the court may terminate the commitment of the child whenever just and proper. (b) If the child resides in a foreign country. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 55 OWNERSHIP OF CHILD’S ACQUISITIONS [ART. the petition shall be filed in the proper court of the place where the property or any part thereof is situated. 226] The property of the unemancipated child earned or acquired with his work or industry or by onerous or gratuitous title shall belong to the child in ownership and shall be devoted exclusively to the latter’s . 225] PROCEDURE IN THE APPROVAL OF THE PARENT’S BOND [ART. unless there is judicial order to the contrary. [Art. the parent is required to furnish a bond of not less than 10% of the value of the child’s property or income. [Art. or a parent has remarried. 224] If the court finds the petitioner at fault. 224] (b) Upon proper petition or at its own instance. in which case the ordinary rules on guardian ship shall apply. 225] (d) If the market value of the property or the annual income of the child exceeds P50. [Art. 225] (a) A verified petition for approval of the bond shall be filed in the proper court of the place where the child resides.days in entities or institutions engaged in child care or in children’s homes duly accredited by the proper government agency. 223] EFFECTS OF PARENTAL AUTHORITY UPON THE PROPERTY OF THE CHILDREN (a) The father and mother shall jointly exercise legal guardianship over the property of the minor child without court appointment.

(3) Upon judicial declaration of (a) Abandonment of the child in a case filed for the purpose (b) Absence or incapacity of the person exercising parental authority (4) Upon final judgment of a competent court divesting the party concerned of parental authority. 232] Note: In the case of death of parents. ART. 228] (4) If the parents exercising parental authority has subjected the child or allowed him to be subjected to sexual abuse [Art. the net proceeds of such property shall belong to the owner. (b) The child shall be given a reasonable monthly allowance in an amount not less than that which the owner would have paid if the administrator were a stranger. 227] (a) If the parents entrust the management or administration of any of their properties to an unemancipated child. SUSPENSION OR TERMINATION OF PARENTAL AUTHORITY. 228] (3) Upon emancipation of child [Art. 230-231] (1) Conviction of parent for crime which carries with it the penalty of civil interdiction (2) Treats child with excessive harassment and cruelty (3) Gives corrupting orders. unless the owner grants the entire proceeds to the child. 229] (1) Upon adoption of the child. (2) Upon the appointment of a general guardian for the child. WHEN PARENTS ENTRUST THE MANAGEMENT OF THEIR PROPERTIES TO A CHILD [ART. 216] TERMINATION OF PARENTAL AUTHORITY WHICH CAN BE REVIVED BY FINAL JUDGMENT [ART. the grandparents. (c) In any case. the proceeds thus given in whole or in part shall not be charged to the child’s legitime. brothers and sisters. counsel. or example . PARENT’S USUFRUCT [ART. or a guardian may exercise substitute parental authority over the child [Art. 226] The right of the parents over the fruits and income (not the property itself) of the child’s property shall be limited primarily to the child’s support and secondarily to the collective daily needs of the family. RA 7610 – CHILD ABUSE LAW PARENTAL AUTHORITY PERMANENTLY TERMINATES (1) Upon death of parents [Art. 228] (2) Upon death of child [Art. there is no absolute termination of parental authority because while the child is still a minor.support and education. GROUNDS FOR SUSPENSION OF PARENTAL AUTHORITY [CLEBC. unless the title or transfer provides otherwise.

majority commences at the age of eighteen years. beer joint. hotel. Unless otherwise provided. RA 7610 – CHILD ABUSE LAW An ascendant. motel. teacher or individual engaged in child care exercising special parental authority inflict corporal punishment upon the child. Art. as amended by RA 6809 Art. Contracting marriage shall require parental consent until the age of twenty-one. local custom and tradition or acts in the performance of a social. moral or legal duty Emancipation. RA 6809: By virtue of this law.(4) Compels child to beg (5) Subjects or allows acts of lasciviousness SCOPE OF SUBSTITUTE AND SPECIAL PARENTAL AUTHORITY [ART. Emancipation takes place by the attainment of majority. sauna or massage parlor. Summary Judicial . Note: Those not prohibited to have in his company such minor in any of the mentioned places: anyone who is related within the fourth degree of consanguinity or affinity or any bond recognized by law. discotheque. 233] (a) The person exercising substitute parental authority shall have the same authority over the person of the child as the parents. twelve (12) years or under or who is ten (10) years or more his junior in any public or private place. (b) In no case shall the school administrators. cabaret. deliver or offer the minor to: (1) Any one prohibited to keep the minor or (2) Any one prohibited to have in his company a minor. beach and/or other tourist resort or similar places shall suffer penalties and imprisonment. save the exceptions established by existing laws in special cases. Emancipation shall terminate parental authority over the person and property of the child who shall then be qualified and responsible for all acts of UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 56 civil life. emancipation can no longer take place by virtue of the minor’s marriage or by the concession of the parents to a minor in a recorded public instrument. 236. pension house. Nothing in this Code shall be construed to derogate from the duty or responsibility of parents and guardians for children and wards below twenty-one years of age mentioned in the second and third paragraphs of Article 2180 of the Civil Code. stepparent or guardian of a minor who shall induce. 234.

(2) After the initial conference. 242] PROCEDURE: (1) A preliminary conference shall be conducted by the judge personally without the parties being assisted by counsel. if the court deems it useful. 238]: (1) Separation in fact between husband and wife (2) Abandonment by one of the other (3) Incidents involving parental authority SEPARATION IN FACT A verified petition alleging the following facts is required when [Art. [Art. 241] NOTIFICATION TO OTHER SPOUSE: (1) Upon the filing of the petition. shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. if one exists. 239]: (a) A husband and wife are separated in fact. [Art. 240] JURISDICTION: Jurisdiction over the petition shall. 243] (3) If the petition is not resolved at the initial conference.Proceedings in the Family Law PROCEDURAL RULES PROVIDED FOR IN THIS TITLE SHALL APPLY TO [ART. if any. be exercised by the proper court authorized to hear family cases. [Art. may be litigated only in a separate action. the court shall notify the other spouse. Basis of summary hearing (at the sound discretion of the court): . or. (2) The notice shall be accompanied by a copy of the petition and shall be served at the last known address of the spouse concerned. except costs of the proceedings. on or before the date set in said notice for the initial conference. if none. upon proof of notice to the other spouse. of said petition. (b) One has abandoned the other Situation: Where one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained The petition shall: (1) Attach the proposed deed. whose consent to the transaction is required. the parties may be assisted by counsel at the succeeding conferences and hearings. or in the regional trial court or its equivalent sitting in the place where either of the spouses resides. (2) The final deed duly executed by the parties shall be submitted to and approved by the court. said petition shall be decided in a summary hearing. SEPARATE CLAIM FOR DAMAGES: Claims for damages by either spouse. ordering said spouse to show cause why the petition should not be granted. [Art. embodying the transaction.

the court may proceed ex parte and render judgment as the facts and circumstances may warrant. 69] (4) Disagreements regarding one spouse’s profession. 244] (2) If. or activity . 246(a)] WHEN APPEARANCE OF SPOUSES REQUIRED: (1) In case of non-appearance of the spouse whose consent is sought. 51] (3) Fixing of family domicile [Art. entities or institutions exercising parental authority over the child. [Art 247] RULES APPLICABLE FOR ADMINISTERING OR ENCUMBERING SEPARATE PROPERTY OF SPOUSE: The petition for judicial authority to administer or encumber specific separate property of the abandoning spouse and to use the fruits or proceeds thereof for the support of UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 57 the family shall also be governed by these rules. [Art. [Art.(a) Affidavits (b) Documentary evidence (c) Oral testimonies at the court’s sound discretion. the court shall notify the parents or. [Art. despite all efforts. 250] (2) Upon the filing of the petition. and shall require such appearance. In any case. directing the parties to present said witnesses. [Art. 251] Note: (a) Petitions filed under Articles 223. 248] INCIDENTS INVOLVING PARENTAL AUTHORITY PROCEDURE (1) Such petitions shall be verified and filed in the proper court of the place where the child resides. the attendance of the nonconsenting spouse is not secured. 41] (2) Delivery of presumptive legitime [Art. [Art. the individuals. 249] (b) The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable [Art. if possible. the court shall specify the witnesses to be heard and the subject-matter of their testimonies. 253] (c) The foregoing rules in Chapter 2 (Separation in Fact) and (Incidents Involving Parental Authority) hereof shall likewise govern summary proceedings filed (1) Declaration of presumptive death [Art. 245] NATURE OF JUDGMENT: The judgment of the court shall be immediately final and executory. [Art. [Art. business. in their absence or incapacity. the court shall inquire into the reasons for his failure to appear. 225 and 235 of this Code involving parental authority shall be verified. occupation. the judge shall endeavor to protect the interests of the non-appearing spouse. If testimony is needed.

124] When wife and husband are de facto separated and the CPG is insufficient. upon a petition. [Art. the oldest shall be preferred. In case of descendants of the same degree. under Article 294 [Art. (5) Municipal authorities – if there are no persons who are bound to support or if such persons are without means NATURE OF FUNERAL: Every funeral shall be in keeping with the social position of the deceased. (3) The ascendants in the nearest degree. other provisions not affected shall remain valid. 306] The funeral shall be: (1) In accordance with the expressed wishes of the deceased. 305]: (1) Spouse (2) Descendants in the nearest degree. 73] (5) Disposition or encumbrance of common property in ACP where one spouse is incapacitated or unable to participate in the administration. be given judicial authority to administer or encumber any specific property of the other spouse and use the fruits and proceeds thereof to satisfy the latter’s share. the paternal shall have a better right (4) The brothers and sisters.[Art. his religious beliefs or affiliation shall determine the funeral rites. In case of ascendants. [Art. NCC Arts. administration of absolute community in a disagreement and the wife takes recourse within five years [Art. [Art 256] INVALIDITY OF OTHER PROVISIONS If any provision is held invalid. 305-310 The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support. . administration of absolute community in a disagreement and the wife takes recourse within five years. [Art. 127] Retroactive Effect RETROACTIVE EFFECT Retroactive Effect RETROACTIVE EFFECT This Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. 255] Funeral. (2) In the absence of such expression. 96] (6) Disposition or encumbrance of common property in CPG where one spouse is incapacitated or unable to participate in the administration. [Art. or of brothers and sisters. the spouse present shall.

(5) Expressed wishes of the deceased is given priority provided that it is not contrary to law and must not violate the legal and reglementary provisions concerning funerals and disposition of the remains (time. [Art. GUIDELINES IN MAKING FUNERAL ARRANGEMENTS (1) The persons who are 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. (8) Any person who disrespects the dead or interferes with the funeral shall be liable for material and moral damages. Use of Surnames. disposed of or exhumed without the consent of the persons mentioned in articles 294 and 305. if the deceased is one of the spouses [Art. [Art. the form of the funeral shall be decided upon by the person obliged to make arrangements for the same. place or ceremony) (6) In the absence of expressed wishes. manner. 364] (2) An adopted child shall bear the surname of the adopter. 364369. interred. disposition of corpse by deceased. after consulting the other members of the family [Art. 309] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 58 Funeral Expenses: The construction of a tombstone or mausoleum shall be deemed a part of the funeral expenses. Arts. Damages: Any person who shows disrespect to the dead. and shall be chargeable to the conjugal partnership property. or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages. (3) Law shall prevail over the will of the persons who have the right to control the burial of deceased – exhumation. (4) Corpses which are to be buried at public expenses may also be used for scientific purposes under certain conditions. evidential purpose. 369-380 SURNAMES OF CHILDREN (1) Legitimate and legitimated children shall principally use the surname of the father. material and moral [Art. 310]. the persons in Art.(3) In case of doubt. his religious beliefs or affiliation shall determine the funeral rights. mutilation of corpses and autopsies. (2) It must be in keeping with the social position of the deceased. 307] Note: No human remains shall be retained. 365] . 199 shall decide. (7) In case of doubt.

375]: (a) Add a middle name or the mother's surname. [Art. (2) In case of annulment of marriage. 371]: (a) The court decrees otherwise.(3) A natural child acknowledged by both parents shall principally use the surname of the father. in accordance with Article 370. 367] (5) Illegitimate children referred to in Article 287 shall bear the surname of the mother. or (b) Her maiden first name and her husband's surname or (c) Her husband's full name. [Art 373] CONFUSION AND CHANGE OF NAMES In case of identity of names and surnames. 370]: (a) Her maiden first name and surname and add her husband's surname. [Art 366] (4) Natural children by legal fiction shall principally employ the surname of the father [Art. she shall resume her maiden name and surname. [Art. [Art. (3) When legal separation has been granted. [Art. 369] WIFE AFTER AND DURING MARRIAGE (1) A married woman may use [Art. 374] In case of identity of names and surnames between ascendants and descendants. No person can change his name or surname without judicial authority. but prefixing a word indicating that she is his wife. She can’t be prevented from using it. the word "Junior" can be used only by a son. If she is the innocent spouse. such as "Mrs. Grandsons and other direct male descendants shall either [Art. or (b) She or the former husband is married again to another person." [Tolentino:] The wife cannot claim an exclusive right to use the husband’s surname. and so on. 372] (4) A widow may use the deceased husband's surname as though he were still living. [Art 368] (6) Children conceived before the decree annulling a voidable marriage shall principally use the surname of the father. unless [Art. If recognized by only one of the parents. or (b) Add the Roman Numerals II. and the wife is the guilty party. However. a natural child shall employ the surname of the recognizing parent. the wife shall continue using her name and surname employed before the legal separation. but neither can she restrain others from using it. she may resume her maiden name and surname. III. the younger person shall be obliged to use such additional name or surname as will avoid confusion. 377] UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION . [Art. she may choose to continue employing her former husband's surname. 376] Usurpation of a name and surname may be the subject of an action for damages and other relief.

(jj. [Art 380] Absence – Art. Navarro (1948): The statutory presumption of Article 43 was not applied due to the presence of a credible eyewitness as to who died first. shall prove the same.PAGE 59 The unauthorized or unlawful use of another person's surname gives a right of action to the latter [Art. [Art. 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). as to which of them died first. different sexes Male Both over 15 and under 60. 378] The employment of pen names or stage names is permitted. 3. Article 41. the other between those ages One between 15 and 60 Note: Applicable only to two or more persons who perish in the same calamity. 43. 381-383 Art. PRESUMPTION IN THE RULES OF COURT (Rule 131. FC PROVISIONAL MEASURES IN CASE OF ABSENCE. 379] Except as provided in the preceding article. Art. 43. 41. and it is not shown who died first. the other above 60 One under 15 Both over 15 and under 60. no person shall use different names and surnames. Joaquin v. whoever alleges the death of one prior to the other. provided it is done in good faith and there is no injury to third persons. and there are no particular circumstances from which it can be inferred. CC. A marriage contracted by any person during subsistence of a previous marriage shall be null and . Pen names and stage names cannot be usurped.) (presumption of survivorship) Age Presumed Survivor Both under 15 Older Both above 60 Younger One under 15. If there is a doubt. same sex Older One under 15 or over 60. ARTS. sec. as between two or more persons who are called to succeed each other.

and without leaving an agent to administer his property. or a friend. 391. 381. When a person disappears from his domicile. General rule: Marriage contracted by any person during the subsistence of a previous marriage is void. (b) The spouse present had a well-founded belief that absent spouse is dead. unless before the celebration of the subsequent marriage. (2) Subsequent marriage due to extraordinary absence where: (a) The prior spouse had been missing for 2 consecutive years. the judge. the prior spouse had been absent for four consecutive years and the spouse present has a wellfounded belief that the absent spouse was already dead. his whereabouts being unknown. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 60 Exception to the Exception: Art. at the instance of an interested party. 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. (Balane) (b) Only the deserted spouse can file or institute an action a summary proceeding for the declaration of presumptive death of the absentee. This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. an absence of only two years shall be sufficient. and (d) Judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). a relative. (Bienvenido case) (c) There must have been diligent efforts on the part of the deserted spouse to locate the absent spouse. may appoint a person to represent him in all that may be necessary. (c) The spouse present had a well-founded belief that the missing person is dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code. Notes: (a) Institution of a summary proceeding is not sufficient. . and (c) Judicial declaration of presumptive death was secured (no prejudice to the effect of the reappearance of the absent spouse). There must also be a summary judgment. (b) There is danger of death attendant to the disappearance [Art. These diligent efforts correspond to the requirement of the law for a well-founded belief.void. Civil Code].

WHEN MAY A DECLARATION OF ABSENCE BE DECLARED? (a) Two years without any news about the absentee (b) Five years if the absentee left a person in charge of administration of his property (c) Declaration takes effect only after six months after publication in a newspaper of general circulation WHO MAY ASK FOR A DECLARATION OF ABSENCE? (1) Spouse present (2) Heirs instituted in a will. according to the circumstances. 383. obligations and remuneration of his representative. 384-389 Art. or a friend files the action WHO MAY BE APPOINTED AS REPRESENTATIVE? (1) Spouse present shall be preferred when there is no legal separation (2) If no spouse or spouse is incapacitated. (3) Relatives who may succeed by the law of intestacy. REQUISITES: The judge may appoint a person to represent absentee when: (1) Person disappears from his domicile (2) His whereabouts are unknown (3) No agent to administer his property (4) An interested party. 384. and five years in case the absentee has left a person in charge of the administration of his property. Art. the spouse present shall be preferred when there is no legal separation. If the absentee left no spouse. 382. The following may ask for the declaration of absence: (1) The spouse present. who may present an authentic copy of the same. a relative. any competent person may be appointed by the court. 385. his absence may be declared. ARTS. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. the judge shall take the necessary measures to safeguard the rights and interests of the absentee and shall specify the powers. who may present an authentic copy of the same. In the appointment of a representative. (2) The heirs instituted in a will. Two years having elapsed without any news about the absentee or since the receipt of the last news. (3) The relatives who may succeed by the law of intestacy. Art.Art. any competent person DECLARATION OF ABSENCE. . The appointment referred to in the preceding article having been made. by the rules concerning guardians. Article 386. (4) Those who may have over the property of the absentee some right subordinated to the condition of his death. or if the spouse present is a minor. regulating them.

An administrator of the absentee's property shall be appointed in accordance with Article 383. it being unknown whether or not the absentee still lives. including the division of the estate among the heirs: (SAAD) (7) A person on board a vessel lost during a sea voyage. showing by a proper document that he has acquired the absentee's property by purchase or other title. ARTS. WHO MAY ADMINISTER THE PROPERTY? (a) Spouse present shall be preferred when there is no legal separation (b) If no spouse or spouse is incapacitated. Art. or an aeroplane which is missing. In these cases the administrator shall cease in the performance of his office. an absence of 5 years shall be sufficient in order that his succession may be opened. Art. except for those of succession. ARTS. or that of the conjugal partnership. If he disappeared after the age of 75 years. (2) When the death of the absentee is proved and his testate or intestate heirs appear. 389. Art. any competent person UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 61 WHEN WILL THE ADMINISTRATION OF PROPERTY CEASE ? Administrator shall cease in performance of his office. and the property shall be at the disposal of those who may have a right thereto. (3) When a third person appears. 390. who has . without judicial authority. subordinated to the condition of his death. ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE. upon proof of death of absentee (3) Third person appears. 387. The wife who is appointed as an administratrix of the husband's property cannot alienate or encumber the husband's property. and property shall be disposed in favor of those who have a right thereto when (1) Absentee appears personally or by means of an agent (2) Testate or intestate heirs appear. 388. he shall be presumed dead for all purposes. 387-389 Art. with a proper document showing he has acquired absentee’s property by purchase or other title PRESUMPTION OF DEATH. 390-392 Art. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of 10 years.(4) Those who may have some right over the property of the absentee. The following shall be presumed dead for all purposes. 391. After an absence of 7 years. The administration shall cease in any of the following cases: (1) When the absentee appears personally or by means of an agent.

5 years shall be sufficient. Republic of the Philippines v. and has been missing for four years. (2) A person in the armed forces who has taken part in war. Art. who has not been heard of for four years since the loss of the vessel or aeroplane. the aggrieved . Note: (1) Although 7 years is required for the presumption of death of an absentee in the Civil Code. General rule: A person shall be presumed dead for all purposes after absence for a period of 7 years. 10 years is required for presumption of death. Art. he shall recover his property in the condition in which it may be found. but he cannot claim either fruits or rents. However. 391 for absence under exceptional circumstances to only 2 years. 41 of the FC may file a petition for certiorari with the CA on the ground that. (9) A person who has been in danger of death under other circumstances and his existence has not been known for four years. and the price of any property that may have been alienated or the property acquired therewith. 41 also limits the required 4 years in Art. or without appearing his existence is proved. (b) If absentee disappeared after age 75. 392. the judgment of the court therein shall be immediately final and executor. Granada (2012): The petition for declaration of presumptive death of an absent spouse for the purpose of contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding “as provided for” under the Family Code. the losing party in a summary proceeding for the declaration of presumptive death for purposes of remarriage under Art. 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. (2) Art. or an aeroplane which is missing. and as such. 41 of the Family Code makes an exception for the purpose of remarriage by limiting such requirement to 4 years. If the absentee appears. EXTRAORDINARY ABSENCE Only 4 years is required for presumption to arise if: (1) A person on board a vessel lost during a sea voyage. the trial court committed grave abuse of discretion amounting to lack of jurisdiction. in rendering judgment thereon. From the decision of the CA.not been heard of for four years since the loss of the vessel or aeroplane. Exception: Succession (a) In succession. (8) A person in the armed forces who has taken part in war. and not subject to ordinary appeal.

without a judicial order. (13) civil interdiction. the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. adoption.party may elevate the matter to the Supreme Court via a petition for review on certiorari under Rule 45 of the Rules of Court. (10) naturalization. Art. Art. Acts. 408. (7) legitimations. However. (15) voluntary emancipation of a minor. (5) annulments of marriage. (3) deaths. 412. and (16) changes of name. Art. RA 9048 AS AMENDED BY RA 10172 AN ACT AUTHORIZING THE CITY OR MUNICIPAL CIVIL REGISTRAR OR THE CONSUL GENERAL TO . 410. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 62 (6) judgments declaring marriages void from the beginning. (4) legal separations. (9) acknowledgments of natural children. to any person suffering damage thereby. In cases of legal separation. events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. 413. and if this has not been done. it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered. (11) loss. (2) marriages. 409. (14) judicial determination of filiation. 407. 411. (8) adoptions. Civil Registrar ARTS. No entry in a civil register shall be changed or corrected. Art. or (12) recovery of citizenship. Art. Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register. All other matters pertaining to the registration of civil status shall be governed by special laws. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. naturalization and other judicial orders mentioned in the preceding article. Art. to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. 407-413 Art. The following shall be entered in the civil register: (1) Births.

a verified petition with the local civil registry office of the city or municipality where the record being sought to be corrected or changed is kept. in person. Philippine Consulates and of the Office of the Civil Registrar General. in terms of transportation expenses. with the local civil registrar of the place where the interested . After the amendment. age or status of the petitioner.CORRECT A CLERICAL OR TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL REGISTER WITHOUT NEED OF A JUDICIAL ORDER. or sex of a person This exception applies where it is patently clear that there was a clerical or typographical error or mistake in the entry. AMENDING FOR THIS PURPOSE ARTICLES 376 AND 412 OF THE CIVIL CODE OF THE PHILIPPINES General rule: No entry in a civil register shall be changed or corrected without a judicial order Exception: (a) Clerical or typographical errors. which is visible to the eyes or obvious to the understanding. and can be corrected or changed only by reference to other existing record or records) (b) Before the amendment by RA 10172. no correction must involve the change of sex. transcribing or typing an entry in the civil register that is harmless and innocuous (i. In case the petitioner has already migrated to another place in the country and it would not be practical for such party. copying. – Any person having direct and personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register may file. misspelled place of birth. (c) Civil Register refers to the various registry books and related certificates and documents kept in the archives of the local civil registry offices. day and month in the date of birth. (b) Change of: first name or nickname. the petition may be filed. nationality. misspelled name. which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations Notes: (a) Clerical or typographical error refers to a mistake committed in the performance of clerical work in writing. mistake in the entry of day and month in the date of birth or the sex of the person or the like.e. Sec. in person. change of sex can now be subjected to correction without judicial order under the rules of this Act. time and effort to appear in person before the local civil registrar keeping the documents to be corrected or changed. 3. Who May File the Petition and Where.

as the case may be. if it will be impractical to submit in the place where record is kept (i. – The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous. (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that by that first name or nickname in the community: or (3) The change will avoid confusion. GROUNDS Who may file the petition and where? (1) Any person having direct personal interest in the correction of a clerical or typographical error in an entry and/or change of first name or nickname in the civil register (2) Verified petition with the local civil registry office of the city or municipality (a) where the record being sought to be corrected or changed is kept (b) where the interested party is presently residing or domiciled. when party has migrated to another place in the country (c) nearest Philippine Consulates.e. All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once. – The petition for correction of a clerical or typographical error. Form and Contents of the Petition. Sec. shall be in the form of an affidavit. The petitions filed with the city or municipal civil registrar or the consul general shall be processed in accordance with this Act and its implementing rules and regulations. tainted with dishonor or extremely difficult to write or pronounce.party is presently residing or domiciled. subscribed and sworn to before any person authorized by the law to administer oaths. 4. UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 63 Citizens of the Philippines who are presently residing or domiciled in foreign countries may file their petition. 5. in person. with the nearest Philippine Consulates. if the petitioner is presently residing or domiciled in foreign countries Note: All petitions for the clerical or typographical errors and/or change of first names or nicknames may be availed of only once. Sec. or for change of first name or nickname. The affidavit shall set forth facts necessary to establish the merits of the . Grounds for Change of First Name or Nickname. The two (2) local civil registrars concerned will then communicate to facilitate the processing of the petition.

or the consul general. The petitioner shall state the particular erroneous entry or entries. agencies that he has no pending case or no criminal record. the petitioner shall submit a certification from the appropriate law enforcements. Who may file petition. may file a verified petition for the cancellation UP COLLEGE OF LAW PERSONS & FAMILY RELATIONS BAR OPERATIONS COMMISSION PAGE 64 or correction of any entry relating thereto. No petition for correction of erroneous entry concerning the date of birth or the sex of a person shall be entertained except if the petition is accompanied by earliest school record or earliest school documents such as. The petition shall be supported with the following documents: (1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or entries sought to be corrected or changed. and (3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may consider relevant and necessary for the approval of the petition. nor shall any entry involving change of gender corrected except if the petition is accompanied by a certification issued by an accredited government physician attesting to the fact that the petitioner has not undergone sex change or sex transplant. (2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or change shall be based. or for correction of erroneous entry concerning the day and month in the date of birth or the sex of a person. and third copy to the petitioner. The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the concerned city or municipal civil registrar. but not limited to. the following entries in . as the case may be. with the Court of First Instance of the province where the corresponding civil registry is located. Entries subject to cancellation or correction. which are sought to be corrected and/or the change sought to be made. RULES OF COURT CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL REGISTRY Sec. . medical records. event.petition and shall show affirmatively that the petitioner is competent to testify to the matters stated. shall be published at least once a week for two (2) consecutive weeks in a newspaper of general circulation. 1. second copy to the Office of the Civil Registrar General. RULE 108. order or decree concerning the civil status of persons which has been recorded in the civil register. baptismal certificate and other documents issued by religious authorities. The petition for change of first name or nickname. 2. Upon good and valid grounds. Furthermore.Any person interested in any act. Sec.

Notice and publication. (n) voluntary emancipation of a minor. and (o) changes of name. (c) deaths. the civil registrar and all persons who have or claim any interest which would be affected thereby shall be made parties to the proceeding. and cause reasonable notice thereof to be given to the persons named in the petition. 3. Opposition. 5. Sec. within fifteen (15) days from notice of the petition. 6. (b) marriages. the court may either dismiss the petition or issue an order granting the cancellation or correction prayed for. 4.The court in which the proceeding is brought may make orders expediting the proceedings. Order. In either case. (e) judgments of annulments of marriage. order or decree concerning the civil status of persons which has been recorded in the civil register (3) Verified petition for the cancellation or correction of any entry relating thereto with the Court of First Instance of the province where the corresponding civil registry is located ENTRIES SUBJECT TO CANCELLATION (a) Births (b) Marriages (c) Deaths (d) Legal separations (e) Judgments of annulments of marriage . and may also grant preliminary injunction for the preservation of the rights of the parties pending such proceedings. (g) legitimations. (j) naturalization (k) election.After hearing. (h) adoptions. a certified copy of the judgment shall be served upon the civil registrar concerned who shall annotate the same in his record. or from the last date of publication of such notice. Parties.the civil register may be cancelled or corrected: (a) births. . (d) legal separations.Upon the filing of the petition. Sec. (f) judgments declaring marriages void from the beginning. file his opposition thereto. . WHO MAY FILE PETITION? (1) Any person interested (2) Any act. The court shall also cause the order to be published once a week for three (3) consecutive weeks in a newspaper of general circulation in the province. Sec. Expediting proceedings. 7. . loss or recovery of citizenship (l) civil interdiction. (m) judicial determination of filiation.When cancellation or correction of an entry in the civil register is sought. . . the court shall. Sec. by an order. event. Sec. (i) acknowledgments of natural children. fix the time and place for the hearing of the same.The civil registrar and any person having or claiming any interest under the entry whose cancellation or correction is sought may.

placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them . ocean) Classification HIDDEN TREASURE Hidden treasure –any hidden and unknown deposit of money jewels or other precious objects. plants. or may be. and growing fruits. roads and constructions of all kinds adhered to the soil. the object of appropriation. loss or recovery of citizenship (l) Civil interdiction (m) Judicial determination of filiation (n) Voluntary emancipation of a minor (o) Changes of name UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION PAGE 65 UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION PAGE 66 Property – All things which are. the lawful ownership of which does not appear. or immensity cannot be considered ‘things’ (i. while they are attached to the land or form an integral part of an immovable. (3) Everything attached to an immovable in a fixed manner. depth. [NCC 414] Characteristics (USA) (1) Utility – capacity to satisfy human wants (2) Substantivity and Individuality – separate and autonomous existence (3) Susceptibility of being appropriated – what cannot be appropriated because of their distance. in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object.e. (2) Trees. paintings or other objects for use or ornamentation.(f) Judgments declaring marriages void from the beginning (g) Legitimations (h) Adoptions (i) Acknowledgments of natural children (j) Naturalization (k) Election. building or other property on which the hidden treasure was found. stars. also owns it. [NCC 439] Owner of the land. buildings. reliefs. (4) Statues. subject to: (1) Right of a finder by chance who is not a trespasser/intruder: ½ of treasure (2) Right of a usufructuary who finds treasure: ½ of treasure (3) Right of State to acquire things of interest to science or the arts [NCC 438] BASED ON MOBILITY – IMMOVABLE OR MOVABLE REAL OR IMMOVABLE PROPERTY [NCC 415] (1) Land.

1 (a) “Building” . and servitudes and other real rights over immovable property. and slag dumps. (9) Docks and structures which. instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land. receptacles. (5) Machinery. or coast. fish ponds or breeding places of similar nature. Immovables by Incorporation: are essentially movables but are attached to an immovable in such a way as . (7) Fertilizer actually used on a piece of land. though floating. lake. their intrinsic qualities have no utility except in a fixed place (Par. (b) Slag Dump: dirt and soil taken from a mine and piled upon the surface of the ground. quarries. Inside the dump can be found the minerals.permanently to the tenements. 8 (a) Mineral Deposits (i) Minerals still deposited in the soil (ii) When minerals have been extracted. and waters either running or stagnant. (10) Contracts for public works. while the matter thereof forms part of the bed. beehives. 1 & 8) (1) Par. and which tend directly to meet the needs of the said industry or works. the animals in these places are included. [Tolentino] (2) Par. (6) Animal houses. Lacsamana] (ii) Separate Ownership i. Categories of Immovables (NIDA) (1) By nature (2) By incorporation (3) By destination (4) By analogy Immovables by Nature: cannot be moved from place to place. they become chattel. a building on rented land is still considered an immovable. and forming a permanent part of it.their adherence to the land must be permanent and substantial. in case their owner has placed them or preserves them with the intention to have them permanently attached to the land.g.e. (b) Buildings have been considered as immovables. pigeon-houses. (c) Waters: those still attached to or running thru the soil or the ground. they constitute a separate mortgage on the building and the land [Punzalan v. are intended by their nature and object to remain at a fixed place on a river. (8) Mines. despite: (i) Treatment by the parties e.

4. growing crops may be subject of a Chattel Mortgage. 3 (a) Res vinta in Roman Law (b) “Attachment in a fixed manner”: breakage or injury in case of separation will be substantial e. (ii) With intention of attaching them permanently even if adherence will not involve breakage or injury. wells. 4 (a) Requisites: (i) Placed by the owner or by the tenant (as agent). (c) For the purpose of attachment: growing crops are to be attached in the same manner as realty. 3 Par.g. 4 Cannot be separated from immovable without breaking or deterioration Can be separated from immovable without breaking or deterioration Need not be placed by the owner Must be placed by the owner. 2. 7) (2) Par. or by his agent. (Rule 59. expressed or implied . they become movables. 3. 4 Par. 3 v. 5. 2 (a) Trees and plants: only immovables when they are attached to the land or form an integral part of an immovable (i) When they have been cut or uprooted. 4. partake of the nature of an immovable [Par. 6 & 7] (1) Par. Sec. [Davao Sawmill v. they remain movables for chattel mortgage purposes. aqueducts and railways (i) Whether attached by the owner himself or some other person (3) Par. (b) Where the improvement or ornaments placed by the lessee are not to pass to the owner at the expiration of the lease. 7 Actually used (it has been spread over the land) Immovables by Destination: are essentially movables but by the purpose for which they have been placed in an immovable. Par. Castillo(1935)] (2) Par. UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION PAGE 67 (b) By special treatment of Act 1508 (Chattel Mortgage Law). sewers. 6 & 9] (1) Par.to be an integral part [Par.

(from the immovable or from the industry or work in which they are utilized) they recover their condition as movables. [Berkenkotter v. [Makati Leasing v.Real property by incorporation Real property by incorporation and destination (3) Par. it assumes the category of a vessel. 5 (a) Immovability depends upon their being destined for use in the industry or work in the tenement. as long as no third parties would be prejudiced. 5: (i) Placed by the owner or the tenant (as agent). Cu Unjieng(1935)] (4) Par. (ii) Adapted to the needs of the industry or work (c) Except: Estoppel (d) Parties may. (5) Par. (b) With the intention of permanent attachment. (b) But if the floating house makes it a point to journey from place to place. the property continues to be immovable. 9: (a) A floating house tied to a shore and used as a residence is considered real property. (ii) If it is still needed for the industry but separated from the tenement temporarily. and is considered immovable . (c) Forming a permanent part of the immovable. (b) Requisites for Immovability in Par. (ii) The installation of machinery and equipment in a mortgaged sugar central for the purpose of carrying out the industrial functions and increasing production. treat as personal property that which by nature would be real. constitutes a permanent improvement on said sugar central and subjects said machinery and equipment to the mortgage constituted thereon. considering that the waters on which it floats are considered immovables. (i) The moment they are separated. 6 Requisites: (a) Placed by the owner or the tenant (as agent). That characterization is effective between the parties. Wearever(1983)] (e) Effect of Attachment (i) Machinery becomes part of the immovable. by agreement.

(5) Obligations and actions which have for their object movables or demandable sums. UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION PAGE 68 It is based. It is a familiar phenomenon to see things classified as real property for purposes of taxation. they might be considered as personalty. improvements on land are commonly taxed as realty. (2) Real property which by any special provision of law is considered as personalty.Immovables by Analogy: Contracts for public works. Central Bank(1962)] PERSONAL OR MOVABLE [416 & 417. (b) Without substantial injury to the immovable to which it is attached. might be considered personal property. partly. even though for some purposes. without breaking the material or causing deterioration to the object they are attached. which when unscrewed could easily be dismantled and moved from place to place. commercial and industrial entities. Tests to Determine Movable Character (1) By exclusion (a) Everything NOT included in Article 415 (b) Parties cannot by agreement treat as immovable that which is legally movable. [Manila Electric v. (2) By description (a) Ability to change location – whether it can be carried from place to place. 10] Note: Enumeration in Art. servitudes. upon the principle of estoppel. and (6) Shares of stock of agricultural. which on general principle. The steel towers built by MERALCO are not buildings or constructions since they are removable and merely attached to a square metal frame by means of bolts. all things which can be transported from place to place without impairment of the real property to which they are fixed. usufruct and lease of real property for a period of 1 year and registered [Par. 415 not absolute (1) Parties may by agreement treat as. Alto Surety(1958)] (2) For purposes of taxation. CC] (1) Those movables susceptible of appropriation which are not included in the preceding article. [Evangelista vs. (3) Forces of nature which are brought under control by science. and (4) In general. Meralco] (3) By special provision of law (a) Growing crops under the Chattel Mortgage Law . but effective only as to them. other real rights over immovable property e. [Board of Assessment Appeals v.g. although they may have real estate.

[Rules of Court Rule 4 Sec.recovered through accion reivindicatoria. [RPC 293. 1] (b) Personal actions . (4) By forces of nature – e. where he may be found. heat. at the election of the plaintiff. [RPC 312] (b) Robbery and theft can be committed only against personal property. (NCC 1137. forcible entry and unlawful detainer. it consists in the pecuniary benefit which the owner can get by the reproduction or manufacture of his work. (NCC 1132) (4) Actions for Recovery of Possession (a) Possession of real property . 2] . 1134) (b) Movables can be acquired by prescription in 8 years (bad faith) and 4 years (good faith). accion publiciana.(b) Machinery installed by a lessee not acting as agent of the owner [Davao Sawmill v. Castillo] (c) Intellectual property – considered personal property. [Rule 4 Sec.Actions concerning real property are commenced in the court which has jurisdiction over the area where the real property is situated. or if a non-resident UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION PAGE 69 defendant. electricity. (b) Possession of movable property .g. gas. pledge [NCC 2094] and chattel mortgage [Act 1508[ (b) Donations of real property are required to be in a public instrument [NCC 749] but a donation of a movable may be made orally or in writing [NCC 748] (3) For Acquisitive Prescription (a) Real property can be acquired by prescription in 30 years (bad faith) and 10 years (good faith).recovered through replevin. or where the defendant or any of the principal defendants resides. oxygen IMPORTANCE AND SIGNIFICANCE OF CLASSIFICATION UNDER THE CIVIL CODE (1) In Criminal Law (a) Usurpation of property can take place only with respect to real property.Commenced where the plaintiff or any of the principal plaintiffs. (5) Venue of actions (a) Real actions . 308] (2) In the Form of Contracts Involving Movables and Immovables (a) Subject matter of specific contracts: (i) Only real property can be the subject of real mortgage [NCC 2124] and antichresis [NCC 2132] (ii) Only personal property can be the subject of voluntary deposit [NCC 1966].

Public Dominion As defined by NCC 420 Public Domain Used in Art XII. and not for use by the State as a juridical person (3) Cannot be the subject of appropriation either by the State or by private persons Classifications: Administered by the State: [NCC 420] (1) Those intended for public use (roads. banks. NCC 2140] BASED ON OWNERSHIP Either of public dominion or private ownership [NCC 419] Churches and other consecrated objects are considered outside the commerce of man. rivers. roadsteads. except for chattel mortgages [Chattel Mortgage Register. They cannot be the subject matter of private contracts. canals. shores. and others of similar character) May be used by everybody.(6) The Governing Law (Private International Law) (a) Immovables . (2) Purpose: For public use.governed by the personal laws of the owner (which in some cases is the law of his nationality and in other cases. Section 2. 1987 Constitution Public Lands Public Land Act Characteristics: (1) Not owned by the State but pertains to it as territorial sovereign.governed by the law of the country where they are located (b) Movables . cannot be acquired by prescription and they are not subject to attachment and execution nor burdened with a voluntary easement. ports and bridges constructed by the State. torrents. to hold in trust for the interest of the community. they are considered neither public nor private property PUBLIC DOMINION Property of public dominion is outside the commerce of man. the law of his domicile) (7) In affecting third persons (a) In transactions involving real property – must be recorded in the Registry of Property to affect third persons (b) In transactions involving personal property – registration is not required. even by strangers or aliens but nobody can exercise over it the rights of a private owner (2) Those intended for some public service (a) may be used only by authorized persons but exists for the benefit of all .

(b) e.g. fortresses, unleased mines and civil
buildings
(3) Those for the development of the national wealth
Includes natural resources such as minerals, coal,
oil and forest
(4) Patrimonial property
(a) Owned by the State over which it has the
same rights as private individuals in relation
to their own property
(b) Subject to the administrative laws and
regulations on the procedure of exercising
such rights.
(c) E.g. friar lands, escheated properties and
commercial buildings
(d) Purpose:
(i) Enables the State to attain its economic
ends
(ii) Serves as a means for the State’s
subsistence and preservation
(iii) Enables the State to fulfill its primary
mission
(e) Conversion of Property of Public Dominion for
Public Use to Patrimonial Property:
(i) Property of public dominion, when no
longer intended for public use or for
public service, shall form part of the
patrimonial property of the State [NCC
422, Civil Code]
(ii) Requires a Declaration by the
Government (executive or legislative
departments) that it is no longer needed
for public use or service.
Administered by Municipal Corporations: [NCC 424]
(1) Property for public use, in the provinces, cities,
and municipalities, consist of the provincial
roads, city streets, municipal streets, the squares,
fountains, public waters, promenades, and public
works for public service paid for by said provinces,
cities, or municipalities.
(2) Patrimonial property of Municipal Corporations:
(a) The province or municipality, as a juridical
entity, also possesses private property to
answer for its economic necessities.
UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION
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(b) Classification of Properties of provinces, cities,
and municipalities [Salas v. Jarencio, (1972)]
(i) Properties acquired with their own funds
in their private or corporate capacity over
which the political subdivision has
ownership and control
(ii) Properties of public dominion held in trust
for the State’s inhabitants are subject to
the control and supervision of the State
(c) A municipal corporation must prove that they
acquired the land with their own corporate

funds
(d) Presumption: that land comes from the State
upon the creation of the municipality. All
lands in the possession of the municipality
Except for those acquired with its private funds,
are deemed to be property of public dominion,
held in trust for the State for the benefit of its
inhabitants.
(e) Congress has paramount power to dispose of
lands of public dominion in a municipality, the
latter being a subdivision only for purposes of
local administration. [Salas v. Jarencio, (1972)]
PRIVATE OWNERSHIP

Can be exercised by the State in its private capacity
or by private persons
Kinds:
(1) Patrimonial property - Property owned by the
State and its political subdivisions in their private
capacity; all property of the State not included in
NCC 420 (on public dominion) [NCC 421-424]
(2) Property belonging to private persons, either
individually or collectively [NCC 425]
(1) Property of private ownership, besides the
patrimonial property of the State, provinces,
cities, and municipalities, consists of all
property belonging to private persons, either
individually or collectively.
(2) Refers to all property belonging to private
persons, natural or juridical, either individually
or collectively (co-owned property)
Determination (two different views):
(1) Determined by how the property was used:
In Province of Zamboanga v. City of Zamboanga
(1968), property was considered patrimonial for
they were not for public use.
(2) Determined by how the property was acquired:
According to Salas v. Jarencio (1972), the absence
of a title deed to any land, showing that it was
acquired with its private or corporate funds, the
presumption is that such land came from the
State upon the creation of the municipality.
Conversion
Alienable Public Land converted to Private Property
through Prescription – Alienable public land held by a
possessor – personally/through predecessors-ininterest,
openly, continuously and exclusively – for
30 years is CONVERTED to private property by the
mere lapse or completion of the period. The
application for confirmation is mere formality,
because land had already been converted, giving rise
to a registrable title. [Director of Lands v. IAC]
Private Land converted to Property of Public Dominion
through abandonment and reclamation – Through the
gradual encroachment or erosion by the ebb and
flow of the tide, private property may become public

IF the owner appears to have ABANDONED the land,
and permitted it to be totally destroyed so as to
become part of the shore. The land having
disappeared on account of the gradual erosion, and
having remained submerged until they were
reclaimed by the government, they are public land.
[Government v. Cabangis]
BASED ON CONSUMABILITY [NCC 418]
Only applies to movables, determined by nature
CONSUMABLE

(1) Movables which cannot be used in a manner
appropriate to their nature without their being
consumed (e.g. food)
(2) Consumable goods cannot be the subject matter
of a commodatum unless the purpose of the
contract is not the consumption of the object, as
when it is merely for exhibition.
NON-CONSUMABLE
All others not falling under ‘consumable’ e.g. money
in coin
SUSCEPTIBILITY TO SUBSTITUTION
Only applies to movables, determined by the
intention of the parties.
FUNGIBLES

Things which, because of their nature or the will of
the parties, are capable of being substituted by
others of the same kind, not having a distinct
individuality
NON-FUNGIBLES
(1) Things which cannot be substituted for another
(2) If the parties agreed that the same thing be
returned, it is not fungible
UP COLLEGE OF LAW PROPERTY BAR OPERATIONS COMMISSION
PAGE 71

BASED ON THE CONSTITUTION [ARTICLE XII,
SEC 3]
(1) Public Agricultural Land
(2) Mineral Land
(3) Timber Land
(4) National Parks
OTHER CLASSIFICATIONS
BY THEIR PHYSICAL EXISTENCE

(1) Corporeal - All property the existence of which
can be determined by the senses (res qui tangi
possunt)
(2) Incorporeal
(a) Things having abstract existence, created by
man and representing value.
(b) Includes rights over incorporeal things,
credits, and real rights other than ownership
over corporeal things.
BY THEIR AUTONOMY OR DEPENDENCE

(1) Principal - Those to which other things are
considered dependent or subordinated, such as
the land on which a house is built.
(2) Accessory - Those which are dependent upon or
subordinated to the principal. They are destined

Ownership DEFINITION (a) Independent right of exclusive enjoyment and control of a thing (b) For the purpose of deriving all advantages required by the reasonable needs of . (2) Indivisible .Those which do not exist in actuality. but not the individual such as a horse. such as ungathered fruits. such as “the white horse of X” EXISTENCE IN POINT OF TIME (1) Present . either physical or legal.That which indicates its homogenous nature.: piece of land or an inheritance. BY SUSCEPTIBILITY TO DETERIORATION (1) Deteriorable that deteriorate through use or by time (2) Non-deteriorable BY REASON OF THEIR SUSCEPTIBILITY TO DIVISION (1) Divisible .Those which cannot be divided without destroying their nature or rendering impossible the fulfillment of the juridical relation of which they are object.Those which exist in actuality. but whose existence can reasonably be expected with more or less probability. without indicating it (2) Specific . house.Those which can be divided physically or juridically without injury to their nature.to complete. dress. such as.That which indicates the specie or its nature and the individual. the erected building (2) Future .g. BY REASON OF DESIGNATION (1) Generic . enhance or ornament another property. E.