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Art.

1-18

PRELIMINARY TITLE
Effect and Application of Laws

CHAPTER 1
EFFECT AND APPLICATION OF LAWS
Article 1. This Act shall be known as the "Civil Code of the
Philippines." (n)
Article 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)
Article 3. Ignorance of the law excuses no one from compliance
therewith. (2)
Q.

Can the publication requirement be dispensed with on the basis of the clause
unless otherwise it is provided under Article 2 of the New Civil Code?

A.

NO. The clause unless otherwise it is provided pertains to the fifteen day period
and not to the requirement of publication. Publication is an indispensable
requirement, the absence of which will not render the law effective. (see Tanada v.
Tuvera, 146 SCRA 446)

Q.

Every person is presumed to know the law. Can this presumption be overcome by
evidence that the person has in fact no knowledge of the existence of a law?

A.

NO. The presumption is conclusive. (See Tanada v. Tuvera, supra)


Article 4. Laws shall have no retroactive effect, unless the contrary
is provided. (3)

Q.

What is retrospective legislation?

A.

These are legislations with retroactive effect.

Q.

What are the instances when a law may be given retroactive effect?

A.

A law may be given retroactive effect in the following instances:


(a) When it expressly provides for retroactivity;
(b) When it is curative or remedial;
(c) When it is procedural;
(d) When it is penal in character and is favorable to the accused.

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PRELIMINARY TITLE
Effect and Application of Laws

Q.

What are the instances when the law cannot be given retroactivity?

A.

A law cannot be given retroactive effect in the following instances:


(a) When it impairs obligation of contracts;
(b) When it affects vested rights;
(c) When it will affect pending proceedings (See Espiritu v. Cipriano, 55 SCRA
533).

Q.

What is a curative or remedial legislation?

A.

It is a type of retrospective legislation that reaches back on past events to correct


errors or irregularities, and to render valid and effective attempted acts which
would otherwise be ineffective for the purpose the parties intended. (DBP v. CA, 96
SCRA 342)
Article 5. Acts executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law itself
authorizes their validity.

Q.

When can a violation of mandatory or prohibitory laws be valid?

A.

It is valid when the law itself authorizes their validity that acts in violation of these
laws are valid and enforceable. (Article 5, new Civil Code)
Article 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.

Q.

When can a waiver be considered as an effective waiver?

A.

A waiver is effective when it is a knowing and intelligent waiver. This means that
the person knows that a right exists, and has knowledge of the facts basic to the
exercise of the right waived, with an awareness of its consequences. (See Consunji
v. CA, G.R. No. 137873, April 20, 2001)
Article 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.

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Q.
A.

PRELIMINARY TITLE
Effect and Application of Laws

Administrative or executive acts, orders and regulations shall


be valid only when they are not contrary to the laws or the
Constitution.
What is the general rule and exception when it comes to partial
unconstitutionality of a statute?
As a general rule, where a part of a law is declared unconstitutional, other parts
not declared as such will still be upheld. However, when the other provisions are so
mutually dependent and connected with the unconstitutional provision as to
warrant a belief that the legislature intended them to be whole, those other
provisions must fall. (See Lidasan v. COMELEC, 21 SCRA 496)
Article 8. Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal system of the
Philippines. (n)
Article 9. No judge or court shall decline to render judgment by
reason of the silence, obscurity or insufficiency of the laws. (6)
Article 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)
Article 11. Customs which are contrary to law, public order or
public policy shall not be countenanced. (n)
Article 12. A custom must be proved as a fact, according to the
rules of evidence.

Q.

Can courts take judicial notice of customs?

A.

NO. A custom must be proved as a fact according to the rules of evidence. (Article
12, New Civil Code)
Article 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 twentyfour 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.

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PRELIMINARY TITLE
Effect and Application of Laws

In computing a period, the first day shall be excluded, and the


last day included. (7a)
Q.

X filed his final income tax return on April 15, 1998. X, however, discovered that he
made excessive payment. Hence, he filed a claim for refund before the
Commissioner for Internal Revenue (CIR) on December 15, 1999. It was denied. On
April 14, 2000, he filed an action for refund before the Court of Tax Appeals (CTA).
However, it was dismissed on the ground that under the law, a claim for refund
must be filed within 2 years from the date of payment. According to CTA, two years
constitute 730 days pursuant to Article 13 of the New Civil Code. Hence,
prescription had set in on April 14, 2000 which is the 731st day since the year 2000
is a leap year. Is the CTA correct?

A.

NO. Article 13 of the New Civil Code was impliedly repealed by the 1987
Administrative Code. Under the latter, year shall be understood as 12 calendar
months. It is a period running from the beginning of a certain numbered day up to,
but not including, the corresponding numbered day of the next month. Two years
means twenty-four months regardless of the number of days of the month. Hence,
two years from April 15, 1998 is April 14, 2000. (See CIR v. Primetown Properties,
G. R. 162155, August 28, 2007)
Article 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)

Q.

Are diplomatic agents immune from the jurisdiction of Philippine criminal laws?

A.

Yes, by virtue of the 1961 Vienna Convention on Diplomatic Relations.


Art. 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding
upon citizens of the Philippines, even though living abroad.
(9a)

Q.

What is the nationality rule?

A.

The nationality rule states that regardless of where a citizen of the


Philippines might be, he or she will be governed by Philippine laws with
respect to his or her family rights and duties, or to his or her status, condition
and legal capacity.

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PRELIMINARY TITLE
Effect and Application of Laws

Q.

If a married Filipino obtains a decree of divorce from abroad, may he validly


remarry in accordance with Philippine law?

A.

No. In the eyes of Philippine law, he is still married as divorce is not allowed.
(See Tenchavez v. Escano, 15 SCRA 355)
Art. 16. Real property as well as personal property is subject to
the law of the country where it is situated.
However, intestate and testamentary succession, both with
respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law
of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of
the country wherein said property may be found. (10a)

Q.

What is the general rule with respect to the law that governs real and
personal property?

A.

The law that governs real and personal property is the law of the country
where such property is situated.

Q.

What is the exception to the abovementioned rule?

A.

With respect to the order of succession and the amount of successional rights,
whether in intestate or testamentary succession, they shall be regulated by
the national law of the deceased.

Q.

What law will apply if a foreigner executed a will in the Philippines but, who,
at the time of his death, was both a national of the United States and also
domiciled in the United States?

A.

The law of the United States will apply. (See Bellis v. Bellis, 20 SCRA 258)
Article 17. The forms and solemnities of contracts, wills, and other
public instruments shall be governed by the laws of the country in
which they are executed.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.

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Art. 1-18

PRELIMINARY TITLE
Effect and Application of Laws

Prohibitive laws concerning persons, their acts or property, and


those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country. (11a)
Q.

What law will govern the forms and solemnities of public instruments, wills and
contracts?

A.

The law of the country where they are executed.

Q.

What law will govern if public instruments are executed before Philippine
diplomatic officers in a foreign country?

A.

Philippine law.

Q.

Is a Filipina wife who obtained a divorce abroad and remarried an American liable
for adultery?

A.

Yes. Prohibitive laws concerning persons, their acts or property, and those which
have for their object public order, public policy and good customs shall not be
rendered ineffective by laws or judgments promulgated, or by determinations or
conventions agreed upon in a foreign country. (See Tenchavez v. Escano 15 SCRA
355)
Article 18. In matters which are governed by the Code of Commerce
and special laws, their deficiency shall be supplied by the
provisions of this Code. (16a)

Q.
A.

When shall the Civil Code govern matters covered by the Code of Commerce and
special laws?
Only when there is a deficiency in the Code of Commerce and special laws.

CHAPTER 2
Human Relations (n)
Article 19. Every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his
due, and observe honesty and good faith.
Article 20. Every person who, contrary to law, willfully or
negligently causes damage to another, shall indemnify the latter for
the same.

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Article 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
Q.

What are the essential requisites for a person to be held liable under Article 19?

A.

The essential requisites are: (1) there must be a legal right or duty; (2) such right or
duty is exercised in bad faith; and (3) it is exercised for the sole intent of prejudicing
another.

Q.

What matters does Article 20 cover?

A.

Article 20 speaks of a general sanction for all other provisions of law which do not
especially provide their own sanction.

Q.

Is willful intent necessary to constitute a violation of Article 20?

A.

No. It can be violated through negligence.

Q.

What are the essential requisites for a person to be held liable under Article 21?

A.

The essential requisites are: (1) there is an act which is legal; (2) but which is
contrary to morals, good customs or public policy; and (3) it is done with intent to
injure.

Q.

A government employee was singled out by the deputy administrator and strictly
subjected to the rules for obtaining benefits after retirement. Meanwhile employees
similarly situated were liberally granted their benefits for as long as they
substantially complied with the rules. Does the government employee have a right
to seek damages?

A.

Yes. See Article 19. (Llorente v. Sandiganbayan, 202 SCRA 309)


Article 22. Every person who through an act or performance by
another, or any other means, acquires or comes into possession of
something at the expense of the latter without just or legal ground,
shall return the same to him.
Article 23. Even when an act or event causing damage to anothers
property was not due to the fault or negligence of the defendant,
the latter shall be liable for indemnity if through the act or event he
was benefited.

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Q.

What is the doctrine of unjust enrichment?

A.

It states that no person can claim what is not validly and legally his or hers.

Q.

A person, in good faith, plants crops on land which he believed was his own, but
which turned out to be timberland belonging to the state. Does he lose his right to
all his crops?

A.

No. (See Republic v. Ballocanag, 572 SCRA 436)

Q.

Without As knowledge, a flood drives his cattle to the cultivated land of B. As


cattle were saved but Bs crop was destroyed. Is A liable to B for damages despite
having committed no fault?

A.

Yes. True, A was not at fault but he was benefitted. It is but right and equitable
that he should indemnify B. (Report of the Code Commission, pages 41-42)
Article 24. In all contractual, property or other relations, when one
of the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender age or
other handicap, the courts must be vigilant for his protection.

Q.

Two parties executed a contract and implemented it for a lengthy period of time
pursuant to its unambiguous provisions, and benefited from the same. May one of
the parties validly invoke Article 24?

A.

No. The Supreme Court rejected the claim of one of the parties that the said party
was disadvantaged pursuant to Article 24, since it was proven that the parties
undertook lengthy negotiations before the contract was finalized, and that the said
party was good in business. (See Spouses Domingo v. Astorga, G.R. No. 130982,
September 16, 2005)
Article 25. Thoughtless extravagance in expenses for pleasure or
display during a period of acute public want or emergency may be
stopped by order of the courts at the instance of any government or
private charitable institution.

Q.

What kind of entities can invoke Article 25?

A.

Only government or private charitable institutions can invoke Article 25.

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Article 26. Every person shall respect the dignity, personality,


privacy and peace of mind of his neighbors and other persons. The
following and similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of anothers residence;
(2) Meddling with or disturbing the private life or family relations of
another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs,
lowly station in life, place of birth, physical defect, or other
personal condition.
Q.

A family in Sorsogon sent a telegram to another member of the family in Manila


asking for money for their ailing mother. The telegram-company failed to send the
telegram on time and did not immediately inform the family of the reason for the
delay, thereby causing filial disturbance on the part of the family as they blamed
each other for failing to respond immediately to the emergency involving their
mother. Can the family validly seek damages against the telegram company?

A.

Yes. The Supreme Court awarded damages on the basis of Article 26(2) of the Civil
Code considering that the act or omission of the telegraph company disturbed the
peace of mind of the family. (See RCPI v. Verchez, G.R. No. 164349, January 31,
2006)
Article 27. Any person suffering material or moral loss because a
public servant or employee refuses or neglects, without just cause,
to perform his official duty may fi le an action for damages and
other relief against the latter, without prejudice to any disciplinary
administrative action that may be taken.

Q.

The president of a state college in bad faith and despite the decision and directives
of the Office of the Bureau of Public Schools, refused to allow a student to graduate
with honors, despite the fact that the student honestly earned and deserved such
honors. Can the president be held liable for damages?

A.

Yes. The Supreme Court granted the award of damages in favor of the said student
under Article 27. (See Ledesma v. Court of Appeals, 160 SCRA 449).

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Article 28. Unfair competition in agricultural, commercial or


industrial enterprises, or in labor through the use of force,
intimidation, deceit, machination or any other unjust, oppressive
or highhanded method shall give rise to a right of action by the
person who thereby suffers damage.
Article 29. When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires
only a preponderance of evidence. Upon motion of the
defendant, the court may require the plaintiff to file a bond to
answer for damages in case the complaint should be found to
be malicious.
If in a criminal case the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence of
any declaration to that effect, it may be inferred from the text
of the decision whether or not the acquittal is due to that
ground.
Article 30. When a separate civil action is brought to demand
civil liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the civil
case, a preponderance of evidence shall likewise be sufficient
to prove the act complained of.
Article 31. When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.
Q.

Does proof beyond reasonable doubt require absolute certainty?

A.

No. It only means that amount of proof which forms an abiding moral certainty
that the accused committed the crime charged. Whereas in civil cases, only
preponderance of evidence is required, that is, as a whole the evidence adduced by
one side outweighs that of the adverse party. (See Sarmiento v. Court of Appeals,
G.R. No. 96740, March 25, 1999)

Q.

Does acquittal beyond reasonable doubt preclude one from instituting a suit to
enforce the civil liability for the same act or omission?

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A.

No. The same cannot be used in evidence of his innocence in civil action and is not
admissible in evidence to prove that he was not guilty of the crime with which he
was charged. (See Philippine National Bank v. Catipon, 52 O.G. 3589; Republic of
the Philippines v. Asaad, 51 O.G. 703)

Q.

When does a cause of action exist?

A.

A cause of action exists if the following elements are present: (1) a right in favor of
the plaintiff; (2) an obligation on the part of the named defendant to respect or not
to violate such right; and (3) an act or omission on the part of such defendant that is
violative of the right of the plaintiff.
Article 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:
1. Freedom of religion;
2. Freedom of speech;
3. Freedom to write for the press or to maintain a periodical
publication;
4. Freedom from arbitrary or illegal detention;
5. Freedom of suffrage;
6. The right against deprivation of property without due
process of law;
7. The right to a just compensation when private property is
taken for public use;
8. The right to the equal protection of the laws;
9. The right to be secure in one's person, house, papers, and
effects against unreasonable searches and seizures;
10. The liberty of abode and of changing the same;
11. The privacy of communication and correspondence;
12. The right to become a member of associations or societies
for purposes not contrary to law;
13. The right to take part in a peaceable assembly to petition
the Government for redress of grievances;
14. The right to be a free from involuntary servitude in any
form;
15. The right of the accused against excessive bail;
16. The right of the accused to be heard by himself and
counsel, to be informed of the nature and cause of the

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accusation against him, to have a speedy and public trial,


to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witness in his behalf;
17. Freedom from being compelled to be a witness against
one's self, or from being forced to confess guilt, or from
being induced by a promise of immunity or reward to
make such confession, except when the person confessing
becomes a State witness;
18. Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
19. Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the
defendant's act or omission constitutes a criminal offense, the
aggrieved party has a right to commence an entirely separate
and distinct civil action for damages, and for other relief. Such
civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral
damages may also be adjudicated.

damages.

Exemplary

The responsibility herein set forth is not demandable from a


judge unless his act or omission constitutes a violation of the
Penal Code or other penal statute.
Q.

Are judges subject to liability under Article 32?

A.

No. The responsibility set forth in Article 32 is not demandable from a judge unless
his act or omission constitutes a violation of the Penal Code or other penal statute.
(See Esguerra v. Gonzales-Asdala, G.R. No. 168906, December 4, 2004) This applies
no matter how erroneous the act is, so long as the judge acts in good faith. It is only
when a judge acts fraudulently or corruptly, or with gross ignorance, that he may
be held criminally or administratively responsible.
Article 33. In cases of defamation, fraud, and physical injuries a
civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil

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action shall proceed independently of the criminal prosecution,


and shall require only a preponderance of evidence.
Article 34. When a member of a city or municipal police force
refuses or fails to render aid or protection to any person in case of
danger to life or property, such peace officer shall be primarily
liable for damages, and the city or municipality shall be
subsidiarily responsible therefor. The civil action herein
recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action.
Article 35. When a person, claiming to be injured by a criminal
offense, charges another with the same, for which no independent
civil action is granted in this Code or any special law, but the
justice of the peace finds no reasonable grounds to believe that a
crime has been committed, or the prosecuting attorney refuses or
fails to institute criminal proceedings, the complaint may bring a
civil action for damages against the alleged offender. Such civil
action may be supported by a preponderance of evidence. Upon the
defendant's motion, the court may require the plaintiff to file a
bond to indemnify the defendant in case the complaint should be
found to be malicious.
If during the pendency of the civil action, an information should be
presented by the prosecuting attorney, the civil action shall be
suspended until the termination of the criminal proceedings.
Article 36. Pre-judicial questions, which must be decided
before any criminal prosecution may be instituted or may
proceed, shall be governed by rules of court which the
Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code.
Q.

What is a prejudicial question?

A.

A prejudicial question is one that arises in a case, the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to
another tribunal. (See Zapanta v. Montesa, 4 SCRA 510; Fortich v. Celdran, 19
SCRA 502) There are always two cases involved, a civil and a criminal case. The
criminal case is always suspended because the issues in the civil case are
determinative of the outcome in the criminal case.

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BOOK I
PERSONS
TITLE I
CIVIL PERSONALITY
CHAPTER 1
General Provisions
Article 37. Juridical capacity, which is the fitness to be the subject
of legal relations, is inherent in every natural person and is lost
only through death. Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost. (n)
Q.

When does juridical capacity and capacity to act start and end?

A.

Juridical capacity is acquired upon the birth of a person. There are even cases
where a child, although not yet born and still inside the womb of the mother, is
already given a provisional personality which entitles him to be supported or to
receive donation (Articles 40, 41, 742, 854). Juridical capacity is terminated only
upon death. Whereas, capacity to act is not inherent in a person; it is attained or
conferred. Therefore, it may be lost not only by death of a person but by any valid
cause provided by law.
Article 38. Minority, insanity or imbecility, the state of being a deafmute, prodigality and civil interdiction are mere restrictions on
capacity to act, and do not exempt the incapacitated person from
certain obligations, as when the latter arise from his acts or from
property relations, such as easements. (32a)
Article 39. The following circumstances, among others, modify or
limit capacity to act: age, insanity, imbecility, the state of being a
deaf-mute, penalty, prodigality, family relations, alienage, absence,
insolvency and trusteeship. The consequences of these
circumstances are governed in this Code, other codes, the Rules of
Court, and in special laws. Capacity to act is not limited on account
of religious belief or political opinion.
A married woman, twenty-one years of age or over, is qualified for
all acts of civil life, except in cases specified by law. (n)

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Chapter 2
NATURAL PERSONS
Article 40. Birth determines personality; but the conceived child
shall be considered born for all purposes that are favorable to it,
provided it be born after with the conditions specified in the
following article. (29a)
Article 41. For civil purposes, the foetus is considered born if it is
alive at the time it is completely delivered from the mothers womb.
However, if the foetus had an intra-uterine life of less than seven
months, it is not deemed born if it dies within twenty-four hours
after its complete delivery from the maternal womb. (30a)
Q.

What determines civil personality?

A.

Birth determines civil personality.

Q.

When is a person deemed born?

A.

A person is deemed born if it is alive at the time it is completely delivered from the
mothers womb. However, if the foetus only has an intra-uterine life of less than
seven months, it must stay alive for twenty-four hours after complete delivery to be
deemed born.

Q.

Are there exceptions?

A.

Yes. A conceived child, even if yet to be delivered from the mothers womb, shall be
considered born for all purposes that are favorable to it.

Q.

X, mother of a child, sued Y for damages and support for their common child. Y
moved to dismiss the complaint on the ground that it did not allege that the child
was deemed born. The court granted the motion to dismiss. Is this proper?

A.

No. Article 40 provides that a child is given provisional personality for all purposes
favorable to it. The unborn child has a right to support from his parents even if it is
yet to be born. The conceived child may even receive donations under Article 742 of
the Civil Code.
The lower courts theory that support as an obligation under the Civil Code does not
contemplate children yet unborn, violates Article 40. The phrase provided it be
born later with the conditions specified in the following article is not a condition

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precedent to the right of the conceived child. (See Quisumbing v. Icao, 34 SCRA
132)
Q.

May a parent invoke the provisional personality of a conceived child for damages
for and on behalf of an aborted child?

A.

No. The conditions set forth in Article 40 and 41 were not subsequently met. But
the parents can obtain damages in their own right against the doctor who caused
the abortion. (See Geluz v. CA, 2 SCRA 801)

Q.

What is the best evidence of birth?

A.

The birth certificate is the best evidence of birth. Once registered, it becomes a
public document. These are strictly confidential and cannot be revealed save in the
cases expressly provided for by law.
Article 42. Civil personality is extinguished by death.
The effect of death upon the rights and obligations of the deceased
is determined by law, by contract and by will. (32a)

Q.

What terminates civil personality?

A.

Death terminates civil personality.

Q.

What is the effect of losing civil personality?

A.

The person loses juridical capacity and capacity to act, and all the rights pertaining
thereto including the right to own and redeem property, among others. (See Butte
v. Manuel Uy & Sons, Inc., 4 SCRA 526)

Q.

Who issues a death certificate?

A.

The attending physician of the deceased issues the death certificate, or the proper
health officer in case of default.

Q.

What are contained in the death certificate?

A.

The death certificate contains the following: (1) date and place of death; (2) full
name; (3) age; (4) occupation; (5) residence; (6) status as regards marriage; (7)
nationality; and (8) probable cause of death.

Q.

Can rights and obligations of deceased persons be regulated?

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A.

PERSONS
Civil Personality

17

Yes, by contract, will, and by law.


Article 43. If there is doubt, as between two or more persons who
are called to succeed each other, as to which of them dies first,
whoever alleges the death of one prior to the other, shall prove the
same; in the absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights from one to
the other. (33)

Q.

When will Article 43 apply?

A.

Only in cases of doubt as to who between two or more persons, called to succeed
each other, died first.

Q.

How can death be proven in cases of doubt?

A.

It must be established by positive evidence. But it can also be established by


circumstantial evidence, but never by mere inference arising from another
inference or presumptions or assumptions.

Chapter 3
JURIDICAL PERSONS
Article 44. The following are juridical persons:
1) The State and its political subdivisions;
2) Other corporations, institutions, and entities for public
interest or purpose, created by law; their personality
begins as soon as they have been constituted according
to law;
3) Corporations, partnerships and associations for
private interest or purpose to which the law grants a
juridical personality, separate and distinct from that of
each shareholder, partner or member. (35a)
Article 45. Juridical persons mentioned in Nos. 1 and 2 of the
preceding article are governed by the laws creating or recognizing
them.

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PERSONS
Civil Personality

18

Private corporations are regulated by laws of general application


on the subject.
Partnerships and associations for private interest or purpose are
governed by the provisions of this Code concerning partnerships.
(36 and 37a)
Article 46. Juridical persons may acquire and possess property of
all kinds, as well as incur obligations and bring civil or criminal
actions, in conformity with the laws and regulations of their
organization. (38a)
Q.

What is a juridical person?

A.

A juridical person is a being of legal existence susceptible of rights and obligations,


or of being the subject of juridical relations. (See Roldan v. Philippine Veterans
Board, 105 Phil. 1081)

Q.

What is a state?

A.

A state is a sovereign power with people composing it viewed as an organized


corporate society under a government with the legal competence to exact obedience
of its commands.

Q.

As a juridical person, what can a state do?

A.

It can enter into treaties and contracts. It can also succeed or inherit in certain
instances provided by law. However, as a general rule, the State cannot be sued
without its consent.

Q.

How can the consent of the state be given?

A.

Either expressly or impliedly. Express consent to be sued may be embodied in a


general or special law. It is implied when the government enters into business
contracts, thereby descending to the level of the other contracting party. When a
state files a complaint, it is also opening itself to a counterclaim. (See Merritt v.
Government of the Philippine Islands, 182 SCRA 644)
However, the circumstance that a state is suable does not necessarily mean that it
is liable. When a state waives its immunity, it is only giving the plaintiff a chance to
prove its claim.

Q.

What are political subdivisions?

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Civil Personality

19

A.

Political subdivisions consist of municipalities, cities, and provinces.

Q.

Can political subdivisions be held liable for damages?

A.

It depends on the capacity for which it is being sued.


Municipal corporations exist in a dual capacity, and their functions are two-fold. In
one, they exercise rights springing from sovereignty and while in the performance
of the duties pertaining thereto, their acts are political and governmental. When
performing such functions, they are immune from suit unless otherwise provided in
their charters.
If acting in a proprietary character, the municipal corporations can be sued. (See
Municipality of San Fernando v. Firme, G.R. No. 52179, April 1991)

Q.

What is a corporation?

A.

A corporation is an artificial being created by operation of law, having the right of


succession and the powers, attributes, and properties expressly authorized by law
or incident to its existence.

Q.

What is a partnership?

A.

By contract of partnership, two or more persons bind themselves to contribute


money, property or industry to a common fund with the intention of dividing the
profits among themselves.

Q.

What are the effects of corporations and partnerships having juridical


personalities?

A.

The corporations and partnerships have separate juridical personalities from its
stockholders and partners. The obligations of the corporation are not the
obligations of its stockholders.

Q.

May stockholders of a corporation intervene in a case involving corporate liability?

A.

No. The stockholders interest in corporate property is merely inchoate. Property


belongs to the corporation possessing a distinct personality. (See Saw v. CA, 195
SCRA 740)

Q.

Are there exceptions to the rule?

A.

Yes, in cases where piercing the veil of corporate fiction is proper. The doctrine is
applied when the separate juridical personality of the corporation is disregarded to

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Civil Personality

20

promote the ends of justice. (See Laguna Transportation Company v. Social


Security System, G.R. L-14606, April 28, 1960)
Article 47. Upon the dissolution of corporations, institutions and
other entities for public interest or purpose mentioned in No. 2 of
Article 44, their property and other assets shall be disposed of in
pursuance of law or the charter creating them. If nothing has been
specified on this point, the property and other assets shall be
applied to similar purposes for the benefit of the region, province,
city or municipality which during the existence of the institution
derived the principal benefits from the same.
Q.

What happens to the properties of the corporation when it ceases to have legal
personality?

A.

The properties shall be disposed of in accordance with the law creating it.
Otherwise, it will be transferred to the municipal corporation which derived
principal benefits from the corporation.

TITLE II
CITIZENSHIP AND DOMICILE
Article 48. The following are citizens of the Philippines:
1) Those who were citizens of the Philippines at the time of the
adoption of the Constitution of the Philippines;
2) Those born in the Philippines of foreign parents who, before
the adoption of said Constitution, had been elected to public
office in the Philippines;
3) Those whose fathers are citizens of the Philippines;
4) Those whose mothers are citizens of the Philippines and
upon reaching the age of majority, elect Philippine
citizenship;
5) Those who are naturalized in accordance with law.
Article 49. Naturalization and the loss and reacquisition of
citizenship of the Philippines are governed by special laws. (n)

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Citizenship and Domicile

21

Article 50. For the exercise of civil rights and the fulfillment of civil
obligations, the domicile of natural persons is the place of their
habitual residence. (40a)
Article 51. When the law creating or recognizing them, or any other
provision does not fix the domicile of juridical persons, the same
shall be understood to be the place where their legal
representation is established or where they exercise their principal
functions. (41a)
Q.

What is domicile? How is it different from residence?

A.

Domicile denotes a fixed permanent residence to which, when absent, one has the
intention of returning. Residence is used to indicate a place of abode, whether
permanent or temporary.

Q.

May a person have more than one domicile?

A.

No. But one may have several residences.

Q.

In the Philippines, how is citizenship determined?

A.

The Philippines follows Jus Sanguinis. Jus sanguinis refers to citizenship by blood,
whereas jus soli refers to citizenship on the basis of place of birth.

Q.

What law governs naturalization?

A.

Commonwealth Act No. 473.

Q.

Under the current laws, what are the qualifications for a foreigner to acquire
Filipino citizenship?

A.

The foreigner must:


(a) be not less than 21 years of age on the day of the filing of petition;
(b) have resided in the Philippines for not less than 10 continuous years;
(c) have good moral character, believes in the principles underlying the
Constitution, conducted himself in a proper and irreproachable manner;
(d) own real estate in the Philippines worth not less than five thousand pesos or
must have some lucrative profession, trade or lawful occupation;
(e) be able to speak and write English or Spanish or any one of the principal
Philippine languages; and
(f) have enrolled his minor children in a school recognized by the Office of Private
Education of the Philippines.

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Citizenship and Domicile

22

Q.

Who are disqualified from being naturalized?

A.

The following are disqualified from being naturalized:


(a) Those opposed to organized government or affiliated with any association or
group of persons who uphold and teach doctrines opposing all organized
government;
(b) Persons defending or teaching the necessity or proprietary of violence, personal
assault, or assassination for the success and predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Persons convicted of crimes involving moral turpitude;
(e) Persons suffering from mental alienation or incurable contagious diseases;
(f) Persons who, during the period of their residence in the Philippines have not
mingled socially with the Filipinos or who have not evinced a sincere desire to
learn and embrace all customs, traditions, and ideals of the Filipinos;
(g) Citizens or subjects of nations with whom the Philippines is at war during the
period of war;
(h) Citizens or subject of a foreign country whose laws do not grant Filipinos the
right to become citizens or subject thereof

Q.

What law governs loss and reacquisition of citizenship?

A.

Commonwealth Act No. 63 as amended by R.A. No. 106.

Q.

What are the grounds for loss of citizenship?

A.

The following are grounds for loss of citizenship:


(a) Naturalization in a foreign country;
(b) Express renunciation of citizenship;
(c) Subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon
attaining twenty-one years of age;
(d) By rendering service to or accepting commission in the armed forces of another country;
(e) Cancellation of the certificate of naturalization;
(f) Having been declared by competent authority a deserter of the Philippine armed forces in time of
war; and
(g) In case of a woman, upon her marriage to a foreigner if by virtue of the laws in force in her
husbands country, she acquires his nationality.

Q.

What are the grounds for reacquisition of citizenship?

A.

The grounds for reacquisition of citizenship are:


(1) Naturalization;
(2) Repatriation; and
(3) By direct act of Congress.

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MARRIAGE
Requisites of Marriage

23

THE FAMILY CODE OF THE PHILIPPINES


I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers
vested in me by the Constitution, do hereby order and promulgate the Family
Code of the Philippines, as follows:
Q.
When did the Family Code take effect?
A.

The Family Code took effect on August 3, 1988.

TITLE I
MARRIAGE
Chapter 1
Requisites of Marriage
Art. 1. 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. It is the foundation of the
family and an inviolable social institution whose nature,
consequences, and incidents are governed by law and not subject
to stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits provided
by this Code. (52a)
Marriage definition and nature
Q.

Define Marriage. What are its basic elements?

A.

Article 1 of the Family Code defines marriage and provides for its basic elements:
(1) A special contract of permanent union between man and woman;
(2) Entered into in accordance with law; and
(3) For the purpose of establishing conjugal and family life.

Q.

Describe the nature of Marriage.

A.

Being a special contract of permanent union, a man and a woman enter a joint
life acting, living, and working as one upon marriage, the husband and the wife

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MARRIAGE
Requisites of Marriage

24

become one single moral, spiritual and social being, not only for the purpose of
procreation, but also for the purpose of mutual help and protection physically,
morally, and materially. (See Saclolo v. CAR, 106 Phil. 1038)
Marriage a fundamental human right
Q.

Describe Marriage as a right recognized by law.

A.

Marriage is one of the basic civil rights of man, fundamental to the States
existence and survival. (Skinner v. State of Oklahoma, 316 US 535) It is a
fundamental human right recognized and protected by international law, by our
Constitution, and by statutory law.
In international law, Article 16 of the Universal Declaration of Human Rights
specifically provides that men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to found a family. Two
other treaties to which the Philippines is a signatory, such as the International
Covenant on Civil and Political Rights (ICCPR), the International Covenant on
Economic, Social and Cultural Rights (ICESCR), also protect the right to marry.
Under the 1987 Constitution of the Republic of the Philippines, the State
recognizes the sanctity of family life and shall protect and strengthen the family as
a basic social institution (Article II, Section 15, 1987 Constituition of the Republic of
the Philippines). Marriage is an inviolable social institution, the foundation of the
family and shall be protected by the State (Article 15, Section 2, supra). Marriage
is within the ambit of the constitutional right of association (Article III, Section 8,
supra) and the right to privacy.

State Interest in Marriage


Q.

Since marriage is so vested with public interest, provide certain statutes that
prohibit acts contrary to the spirit of marriage.

A.

Just to list a few:


1. The Revised Penal Code punishes any person who contracts marriage
knowing that the requirements of the law were not met, or that a legal
impediment to marriage exists;
2. Republic Act No. 6955 punishes any person who carries on a Mail-Order
Bride Business;
3. Republic Act No. 9208 punishes any person who would offer or contract
marriage for the purpose of prostitution, pornography, sexual exploitation,
forced labor or slavery, involuntary servitude or debt bondage.

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Requisites of Marriage

25

Q.

As marriage is a contract, are the contracting parties free to dictate its terms?

A.

Generally, n,o. Marriage is considered the foundation of the family, and an


inviolable social institution whose nature, consequences and incidents are governed
by law and not subject to stipulation. (Article 1, Family Code)
Except: Marriage settlements may fix the property relations during the marriage
within the limits provided by the Family Code. (Article 1, Family Code)

Q.

Describe Marriage as a status.

A.

Marriage is not at most a civil contract, but is at least a civil contract, with status
and the interest of the State added to it. (Bove v. Pinciotti, 46 Pa. D. & C. [C.P.
1942]) While other contracts may be modified or fixed upon the consent of the
parties, once a man and a woman enter into marriage, the law steps in and holds
both of them to various obligations and liabilities. (Maynard v. Hill, 125 US 190)
For example, a marriage cannot be annulled for the following reasons:
(1) That the petitioner never really intended to marry the respondent, but only to
name the child in her womb (who, however, was never born). (See Bove v.
Pinciotti, supra); or
(2) That the religious marriage ceremony which the parties agreed to hold after
their civil marriage never took place. (See Anonymous v. Anonymous, 49 NYSd
314)
This is because these reasons were not among those provided in the marriage laws
of their respective States (See Bove v. Pinciotti, supra). More importantly however,
the status created by marriage is too much a matter of public concern to allow the
parties to tinker with it according to their own notions of what is expedient and
proper. (See Anonymous v. Anonymous, supra)

Q.

How many parties are there to a marriage?

A.

Three two willing spouses and an approving State. (Manuel v. People, 476 SCRA
461)

Q.

Is divorce allowed in the Philippines?

A.

No. However, the constitutional reverence for marriage and the family does not
mean that the Legislature may not enact a law allowing it.

Effect of Company Policies on Employees contracting Marriage

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MARRIAGE
Requisites of Marriage

26

Q.

MNO corporations employment policy disqualifies from work any female employee
who contracts marriage. Valid?

A.

No. Such a vile policy is discriminatory and strikes at the very essence, ideals and
purpose of marriage as an inviolable social institution and ultimately, of the family
as the foundation of the nation. (Philippine Telegraph and Telephone Company v.
NLRC, 272 SCRA 596)

Q.

QRS corporations policy provides that in case two of its employees should marry,
one of them should resign. This is because of the corporations apprehension that
the employees will become less efficient in the performance of their work. Valid?

A.

No. There is no LEGITIMATE BUSINESS CONCERN shown in imposing the


questioned policy. (See Star Paper Corporation v. Simbol, 487 SCRA 228).

Q.

Suppose A, employed at XYZ corporation, marries B, an employee of DEF


corporation. XYZ and DEF are competitors in the same industry. XYZ corporations
company policy requires A to inform the corporation of his marriage to B, and if the
corporation determines that the marriage may pose a possible conflict of interest, A
should resign. Valid?

A.

Yes. Where XYZ corporations policy is based on the possibility that a competitor
company (DEF) will gain access to its trade and business secrets, the policy is
reasonable. It involves a LEGITIMATE BUSINESS CONCERN and does not
violate the equal protection clause of the constitution. (See Duncan v. Glaxo, 438
SCRA 343)

Marriage and the Right to Privacy


Q.

A is married to B. Now, A suspected B of having an extra-marital affair with C. As


such A, without informing B, ransacked the latters office and took documents that
proved the affair. With these documents, she filed a case for legal separation
against B. Are the documents admissible to prove the extra-marital affair?

A.

No. While the marriage between A and B creates a permanent union between
them, B did not set aside his dignity and privacy as an individual. The documents A
acquired violated Bs right to privacy, and are thus, inadmissible (See Zulueta v.
CA, 253 SCRA 699).

Q.

A is married to B. A was prosecuted for murder. The prosecution now wants to


present B as a witness against A. Can they do so?

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A.

MARRIAGE
Requisites of Marriage

27

Generally, no. B cannot testify against A without the latters consent, while the
marriage subsists. This is because the law ensures absolute freedom of
communication between spouses by making it privileged. (Zulueta v. CA, supra).

Property Relations
Q.

Article 1 of the Family Code provides that the contracting parties to a marriage
may fix the property relations in a marriage settlement. Up to what extent can the
parties dictate its terms?

A.

The terms of the settlement should not contravene the provisions of the Family
Code. For example, the parties cannot provide that the agreed property regime will
take effect at a time other than the celebration of marriage.

Law Governing Validity of Marriage


Q.

What law determines the validity of a marriage?

A.

The law in force at the time the marriage is contracted.

Q.

A and B, siblings, were married in 2015. Assuming the Family Code is still in effect
at that time, their marriage is considered void for being an incestuous marriage.
However, in 2020, Congress passes a law allowing incestuous marriages. Is A and
Bs marriage now valid because of the subsequent law?

A.

Generally, no. A marriage void in toto at the time it was celebrated cannot be
validated by a subsequent statute. The exception is if the subsequent statute
expressly validates certain marriages formerly considered invalid. (See 52 Am. Jur.
2d 955-956)
Art. 2. No marriage shall be valid, unless these essential requisites
are present:
(1) Legal capacity of the contracting parties who must be a
male and a female; and
(2) Consent freely given in the presence of the solemnizing
officer. (53a)
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;

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MARRIAGE
Requisites of Marriage

28

(2) A valid marriage license except in the cases provided for


in Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with 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. (53a, 55a)
Art. 4. The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35 (2).
A defect in any of the essential requisites shall not affect the
validity of the marriage but the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable.
(n)
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,
may contract marriage. (54a)
Art. 6. No prescribed form or religious rite for the solemnization of
the marriage is required. It shall be necessary, however, for the
contracting parties to appear personally before the solemnizing
officer and declare in the presence of not less than two witnesses of
legal age that they take each other as husband and wife. This
declaration shall be contained in the marriage certificate which
shall be signed by the contracting parties and their witnesses and
attested by the solemnizing officer.
In case of a marriage in articulo mortis, when the party at the point
of death is unable to sign the marriage certificate, it shall be
sufficient for one of the witnesses to the marriage to write the
name of said party, which fact shall be attested by the solemnizing
officer. (55a)
Q.

Does the law allow for same sex marriages?

A.

No. The contracting parties must be of the opposite sex a man and a woman.

Q.

A, born a male, successfully has a sex change operation. Physically, A is now a


woman. Can she validly marry a man?

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MARRIAGE
Requisites of Marriage

29

A.

No. In determining the sex of a person who contracts marriage, the law looks to the
sex of the person at the time of his birth. A successful sex-reassignment surgery is
of no consequence. (See Silverio v. Republic, 537 SCRA 373)

Q.

A suffers from Congenital Adrenal Hyperplasia (CAH), a condition where A has


both male and female characteristics. Although A may genetically be a female, A
actually secretes male hormones, has no female genitalia and truly feels like a male
person. In short, A is considered an intersex individual. Can A validly marry a
woman?

A.

Yes, provided that at the age of majority, he makes the choice to live and be treated
under the law as a man. (See Republic v. Cagandahan, 565 SCRA 72)

Q.

What is the effect of the total absence of consent to a marriage?

A.

The total absence of consent makes the marriage void ab initio.

Q.

What is the effect of a defect in consent?

A.

Defect in consent makes the marriage valid, until annulled, hence, a voidable one.

Q.

The law requires a particular form of consent to be given by the contracting parties.
True?

A.

False. Consent need not be expressed in any special manner or particular form.
(See Teter v. Teter, 101 Ind. 129) All that is needed is a manifestation that the
contracting parties take each other as husband and wife.

Q.

Does the law allow for proxy marriages?

A.

No. The contracting parties must personally appear before the solemnizing officer
and make their personal manifestation of consent to the marriage. Of course, the
law requires that the solemnizing officer have authority to solemnize the marriage.

Q.

What happens when one of the witnesses to a marriage is not of legal age?

A.

There are two views:


(1) The absence of a formal requisite makes the marriage void; and
(2) This is a mere irregularity as what is important is the agreement itself of the
contracting parties in the presence of the solemnizing officer which constitutes
the contract, hence the marriage is valid. The latter is the better view. (See
Perido v. Perido, 63 SCRA 97)

Q.

Are common law marriages recognized in the Philippines?

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MARRIAGE
Requisites of Marriage

30

A.

They have never been and are still not recognized in our jurisdiction.

Q.

Is marriage by way of jest valid?

A.

No. There is no genuine consent on the part of both contracting parties.

Q.

Generally, absence of any of the essential or formal requirements of a marriage


renders such marriage null and void. What are the exceptions?

A.

The exceptions are:


1) Marriages in articulo mortis.
2) Marriage between two contracting parties living in places where there are no
means of transportation to enable them to appear personally before the local
civil registrar.
3) Marriages among Muslims and other ethnic cultural minorities performed in
accordance with their practices.
4) Marriages of couples without any impediment to marry and living together as
husband and wife for at least five years.
5) Marriage solemnized by a person without authority to solemnize a marriage
provided that either one of the parties believed in good faith that such
solemnizer had the proper authority.

Q.

Must the declaration of consent be vocally expressed?

A.

No. It may be shown by other manifestations or signs of approval and consent. It is


the agreement itself, and not the form in which it is couched, which constitutes the
contract.

Q.

What are some of the irregularities which do not affect the validity of a marriage?

A.

These irregularities are:


(1) Absence of two witnesses of legal age during the marriage ceremony. (Meister
v. Moore, 96 US 76, 24 US L. Ed. 826)
(2) Absence of a marriage certificate. (People v. Janssen, 54 Phil. 176)
(3) Marriage solemnized in a place other than publicly in the chambers of the
judge or in open court, in church, chapel, or temple, or in the office of the
consul-general, consul, or vice-consul.
(4) Issuance of marriage license in city or municipality, which is not the
residence of either of the contracting parties. (Alcantara v. Alcantara, G.R.
No. 167746, August 28, 2007, 531 SCRA 446)
(5) Unsworn application for a marriage license.
(6) Failure of the contracting parties to present original birth certificate or
baptismal certificate to the local civil registrar, who likewise failed to ask for

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Art 1-34

(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)

MARRIAGE
Requisites of Marriage

31

the same.
Failure of the contracting parties between the ages of eighteen and twentyone to exhibit consent of parents or persons having legal charge of them to
the local civil registrar.
Failure of the contracting parties between the ages of twenty-one to twentyfive to exhibit advice of parents to local civil registrar.
Failure to undergo marriage counseling.
Failure of the local civil registrar to post the required notices.
Issuance of marriage license despite absence of publication or prior to the
completion of the 10-day period for publication. (Alcantara v. Alcantara, G.R.
No. 167746, August 28, 2007, 531 SCRA 446)
Failure of the contracting parties to pay the prescribed fees for the marriage
license.
Failure of the person solemnizing the marriage to send copies of the marriage
certificate to the local civil registrar. (Madridejos v. De Leon, 55 Phil. 1)
Failure of the local civil registrar to enter the applications for marriage
licenses filed with him in the registry book in the order in which they were
received.

Art. 7. Marriage may be solemnized by:


1) Any incumbent member of the judiciary within the courts
jurisdiction;
2) Any priest, rabbi. imam, or minister of any church or
religious sect duly authorized by his church or religious sect
and registered with the civil registrar general, acting within
the limits of the written authority granted him by his church
or religious sect and provided that at least one of the
contracting parties belongs to the solemnizing officers
church or religious sect;
3) Any ship captain or airplane chief only in the cases
mentioned in Article 31;
4) Any military commander of a unit to which a chaplain is
assigned, in the absence of the latter, during a military
operation, likewise only in the cases mentioned in Article 32;
or
5) Any consul-general, consul or vice-consul in the case
provided in Article 10. (56a)
Q.

What is the significance of January 1, 1992?

A.

It was on this date that, with the advent of the Local Government Code, Mayors
are now allowed to solemnize marriages.

Q.

What is the presumption as regards to the authority of the solemnizing officer?

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MARRIAGE
Requisites of Marriage

32

A.

In the absence of a showing to the contrary, the authority of the solemnizing officer
is presumed. (Goshen v. Stonington, 4 Conn. 209, 10 Am. Dec. 121)

Q.

Must the solemnizing officer investigate whether or not the marriage license is duly
issued?

A.

No. All the solemnizing officer needs to know is that the license has been issued by
the competent official, and it may be presumed from the issuance of the license that
said official has fulfilled the duty to ascertain whether the contracting parties had
fulfilled the requirements of law. (People v. Janssen, 54 Phil. 176)

Q.

In cases wherein the contracting parties are legally excused from obtaining a
marriage license because one of them is at the point of death or there is no means of
transportation to go to the local civil registrar as their places of residence are far,
does the same rule hold true?

A.

No. In such cases, the solemnizing officer must undertake the necessary steps to
ascertain the ages and relationship of the contracting parties and the absence of
any legal impediment to marry.

Q.

May judges solemnize marriages outside of their jurisdiction?

A.

No. Incumbent judges can only solemnize within their jurisdiction. If they go
outside their jurisdiction, the marriage is void as the solemnizing officer has no
authority, which is a formal requisite. This is without prejudice to the defense that
either of the parties believed in good faith that such solemnizing officer has
authority to conduct such marriage.

Q.

What are the requisites for a priest, rabbi, imam, or minister of any church or
religious sect to be able to validly solemnize a marriage?

A.

Such priest, rabbi, imam, or minister must:


(1) be duly authorized y his or her church or religious sect;
(2) act within the limits of the written authority granted to him or her by the
church or religious sect;
(3) be registered with the civil registrar general; and
(4) at least one of the contracting parties whose marriage he or she is to solemnize
belongs to his or her church or religious sect.

Q.

What are the requisites for a ship captain or airplane chief to be able to validly
solemnize a marriage?

A.

The marriage must:

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(1) be in articulo mortis;


(2) be between passengers or crew members; and
(3) generally, the ship must be at sea or the plane must be in flight; it may
nevertheless be solemnized during stopovers at ports of call.
Q.

What are the requisites for a military commander to validly solemnize a marriage?

A.

The requisites are:


(1) he or she must be a military commander of a unit;
(2) he or she must be a commissioned officer;
(3) there must be a chaplain assigned to such unit;
(4) the said chaplain must be absent at the time of the marriage;
(5) the marriage must be one in articulo mortis; and
(6) the contracting parties, whether members of the armed forces or civilians, must
be within the zone of military operation.

Q.

What are the requisites for a consul-general, consul, or vice consul to validly
solemnize a marriage?

A.

The requisites are:


(a) the contracting parties must both be Filipino citizens, otherwise the marriage is
void; the exception is if the marriage is recognized as valid in the host country,
and as such valid here pursuant to Article 26 of the Family Code; and
(b) the solemnities established by Philippine laws must be observed.
Art. 8. The marriage shall be solemnized publicly in the chambers
of he judge or in open court, in the church, chapel or temple, or in
the office of the consul-general, consul or vice-consul, as the case
may be, and not elsewhere, except in the cases of marriages
contracted at the point of death or in remote places in accordance
with Article 29 of this Code, or where both of the parties request
the solemnizing officer in writing in which case the marriage may
be solemnized at a house or place designated by them in a sworn
statement to that effect. (57a)

Q.

What are the minimum requirements of a marriage ceremony?

A.

The contracting parties must appear personally before the solemnizing officer and
declare that they take each other as husband and wife in the presence of at least
two witnesses of legal age.

Q.

Will the non-observance of Article 8 still produce a valid marriage?

A.

Yes. This article is directory in nature

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Q.

What are the exceptions to the rule on venue in marriage?

A.

The exceptions are:


(1) marriages contracted in articulo mortis;
(2) marriages contracted in a remote place in accordance with Article 29; and
(3) marriages where both parties request a solemnizing officer in writing in which
case the marriage may be solemnized at a house or place designated by them in
a sworn statement to that effect.
Art. 9. A marriage license shall be issued by the local civil registrar
of the city or municipality where wither contracting party
habitually resides, except in marriages where no license is required
in accordance with Chapter 2 of this Title. (58a)

Q.

Where should the marriage license be issued?

A.

By the local civil registrar of the place where the marriage application was filed. If
performed by a consul-general, consul, or vice-consul, the marriage license shall be
issued in the respective consulate.

Q.

What if the marriage license is issued in a place where the contracting parties do
not reside?

A.

This is considered as a mere irregularity which will not render a marriage null and
void or even annullable. (People v. Janssen, supra)

Q.

What is the lifetime of a marriage license?

A.

120 days from the date of the signing of the marriage license by the local civil
registrar. After 120 days, it automatically expires.

Q.

Does the fact that a party to whom the license is issued is represented by a name
other than his true name or had his name spelled incorrectly affect the validity of
such marriage?

A.

No. This will not invalidate the marriage solemnized on the authority of such
license.
Art. 10. Marriages between Filipino citizens abroad may be
solemnized by a consul-general, consul or vice-consul of the
Republic of the Philippines. The issuance of a marriage license and
the duties of the local civil registrar and of the solemnizing officer

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with regard to the celebration of marriage shall be performed by


said consular official. (75a)
Art. 11. Where a marriage license is required, each of the
contracting parties shall file separately a sworn application for
such license with the proper local civil registrar which shall specify
the following:
(1) Full name of the contracting party;
(2) Place of birth;
(3) Age and date of birth;
(4) Civil status;
(5) If previously married, how, when and where the previous
marriage was dissolved or annulled;
(6) Present residence and citizenship;
(7) Degree of relationship of the contracting parties;
(8) Full name, residence and citizenship of the father;
(9) Full name, residence and citizenship of the mother; and
(10)
Full name, residence and citizenship of the guardian or
person having charge, in case the contracting party has
neither father nor mother and is under the age of twenty-one
years.
The applicants, their parents or guardians shall not be required to
exhibit their residence certificates in any formality in connection
with the securing of the marriage license. (59a)
Q.

If the local civil registrar has knowledge of some legal impediment, can said
registrar discontinue processing the application for marriage?

A.

No. He or she must only note down the legal impediments in the application and
thereafter issue the marriage license, unless otherwise stopped by the court. Once
signed and sworn to by the parties, the registrar has no choice but to accept the
application and process the same up to the time of the issuance of the marriage
license.
Art. 12. The local civil registrar, upon receiving such application,
shall require the presentation of the original birth certificates or, in
default thereof, the baptismal certificates of the contracting parties
or copies of such documents duly attested by the persons having
custody of the originals. These certificates or certified copies of the
documents by this Article need not be sworn to and shall be exempt
from the documentary stamp tax. The signature and official title of

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the person issuing the certificate shall be sufficient proof of its


authenticity.
If either of the contracting parties is unable to produce his birth or
baptismal certificate or a certified copy of either because of the
destruction or loss of the original or if it is shown by an affidavit of
such party or of any other person that such birth or baptismal
certificate has not yet been received though the same has been
required of the person having custody thereof at least fifteen days
prior to the date of the application, such party may furnish in lieu
thereof his current residence certificate or an instrument drawn
up and sworn to before the local civil registrar concerned or any
public official authorized to administer oaths. Such instrument
shall contain the sworn declaration of two witnesses of lawful age,
setting forth the full name, residence and citizenship of such
contracting party and of his or her parents, if known, and the place
and date of birth of such party. The nearest of kin of the
contracting parties shall be preferred as witnesses, or, in their
default, persons of good reputation in the province or the locality.
The presentation of birth or baptismal certificate shall not be
required if the parents of the contracting parties appear personally
before the local civil registrar concerned and swear to the
correctness of the lawful age of said parties, as stated in the
application, or when the local civil registrar shall, by merely
looking at the applicants upon their personally appearing before
him, be convinced that either or both of them have the required
age. (60a)
Art. 13. In case either of the contracting parties has been previously
married, the applicant shall be required to furnish, instead of the
birth or baptismal certificate required in the last preceding article,
the death certificate of the deceased spouse or the judicial decree
of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage.
In case the death certificate cannot be secured, the party shall
make an affidavit setting forth this circumstance and his or her
actual civil status and the name and date of death of the deceased
spouse. (61a)
Art. 14. In case either or both of the contracting parties, not having
been emancipated by a previous marriage, are between the ages of
eighteen and twenty-one, they shall, in addition to the

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requirements of the preceding articles, exhibit to the local civil


registrar, the consent to their marriage of their father, mother,
surviving parent or guardian, or persons having legal charge of
them, in the order mentioned. Such consent shall be manifested in
writing by the interested party, who personally appears before the
proper local civil registrar, or in the form of an affidavit made in
the presence of two witnesses and attested before any official
authorized by law to administer oaths. The personal manifestation
shall be recorded in both applications for marriage license, and the
affidavit, if one is executed instead, shall be attached to said
applications. (61a)
Q.

Is there still emancipation by marriage?

A.

No. Emancipation is reached if the child attains the age of 18 years.

Q.

In what instance is parental consent required in order to obtain a marriage license?

A.

Parental consent is required when either or both of the contracting parties are
between the ages of 18 and 21 years old. (Article 14, Family Code)

Q.

Who may give parental consent to obtain a marriage license?

A.

Parental consent may be given by the father, mother, surviving parent, guardian,
or persons having legal charge of the contracting party, in the order mentioned.
This means that preference is given to the father, and in the latters default, it shall
be the mother, and so on. (Article 14, Family Code)

Q.

What is the effect on the marriage if there is no parental consent given to a


contracting party in applying for a marriage license?

A.

Under Article 45(1) of the Family Code, the absence of parental consent makes the
marriage annullable. Therefore the marriage is considered valid until terminated.
The lack of parental consent may also subject those who have neglected to acquire
it to penalties of the law. (Cushman v. Cushman, 80 Was. 615)

Q.

In what instance will the marriage be considered void despite the presence of
parental consent?

A.

The marriage will be void despite the presence of parental consent if any of the
contracting parties is below 18 years old.

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Art. 15. Any contracting party between the age of twenty-one and
twenty-five shall be obliged to ask their parents or guardian for
advice upon the intended marriage. If they do not obtain such
advice, or if it be unfavorable, the marriage license shall not be
issued till after three months following the completion of the
publication of the application therefor. A sworn statement by the
contracting parties to the effect that such advice has been sought,
together with the written advice given, if any, shall be attached to
the application for marriage license. Should the parents or
guardian refuse to give any advice, this fact shall be stated in the
sworn statement. (62a)
Art. 16. In the cases where parental consent or parental advice is
needed, the party or parties concerned shall, in addition to the
requirements of the preceding articles, attach a certificate issued
by a priest, imam or minister authorized to solemnize marriage
under Article 7 of this Code or a marriage counselor duly
accredited by the proper government agency to the effect that the
contracting parties have undergone marriage counseling. Failure
to attach said certificates of marriage counseling shall suspend the
issuance of the marriage license for a period of three months from
the completion of the publication of the application. Issuance of the
marriage license within the prohibited period shall subject the
issuing officer to administrative sanctions but shall not affect the
validity of the marriage.
Should only one of the contracting parties need parental consent or
parental advice, the other party must be present at the counseling
referred to in the preceding paragraph. (n)
Q.

When is parental advice required in order to obtain a marriage license?

A.

Parental advice is required if either or both contracting parties are between the
ages of 21 and 25 years old. (Article 15, Family Code)

Q.

Who may give parental advice to obtain a marriage license?

A.

According to Article 15 of the Family Code, the parents or guardian may give
advice upon the intended marriage.

Q.

What is the effect on the marriage if there is no parental advice given to a


contracting party in applying for a marriage license?

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A.

The absence of parental advice, or should it be unfavorable, does not affect the
validity of the marriage. It only serves to delay the issuance of the marriage license
until after three months following the completion of the publication of the
application for marriage license. (Article 15, Family Code)

Q.

What is the purpose or policy behind the requirement of parental advice?

A.

The requirement of a parental advice for those 21 to 25 years of age is in keeping


with Philippine tradition. It is a means to induce further and more mature
deliberation over the decision to get married. (Minutes of the 185th Meeting of the
Civil Code and Family Law committees, Jun. 27, 1987, page 6)

Q.

In cases where parental consent or parental advice is needed, what other


requirement must be submitted to the local civil registrar in order to obtain a
marriage license?

A.

A certificate attesting to the fact that the contracting parties have undergone
marriage counseling shall be submitted in addition to the requirement of parental
consent or parental advice.
Such certificate can be issued either by:
(1) a priest, imam or minister authorized to solemnize marriages under Article 7 of
the Family Code; or
(2) a marriage counselor duly accredited by the proper government agency.
If only one of the contracting parties needs parental consent or parental advice, the
other contracting party must be present at the marriage counseling. (Article 16,
Family Code)

Q.

What is the effect on the marriage if the contracting parties fail to submit a
certificate of marriage counseling?

A.

The failure to submit a certificate of marriage counseling does not affect the validity
of the marriage. Similar to the requirement of a parental advice, it only serves to
delay the issuance of the marriage license for a period of three months from the
completion of the publication of the application for marriage license.
If a marriage license is issued within this three-month period despite the absence of
a certificate of marriage counseling, the issuing officer may be subject to
administrative sanctions. (Article 16, Family Code)
Art. 17. The local civil registrar shall prepare a notice which shall
contain the full names and residences of the applicants for a
marriage license and other data given in the applications. The

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notice shall be posted for ten consecutive days on a bulletin board


outside the office of the local civil registrar located in a
conspicuous place within the building and accessible to the general
public. This notice shall request all persons having knowledge of
any impediment to the marriage to advise the local civil registrar
thereof. The marriage license shall be issued after the completion
of the period of publication. (63a)
Q.

When does the marriage license issue?

A.

The marriage license is issued after the completion of the period of publication of
the notice, except when parental advice has not been given or is unfavorable, or
when the certificate of marriage counseling has not been submitted.
The notice is issued by the local civil registrar and contains the full names and
residences of the contracting parties, as well as other data provided in the
application. The notice is effectively a request to all persons having knowledge of
any impediment to the marriage, to advise the local civil registrar thereof.
The notice is posted for 10 consecutive days on a bulletin board outside the office of
the local civil registrar, in a conspicuous place within the building, and accessible to
the general public.

Q.

What is the period of validity of a marriage license?

A.

A marriage license is valid for 120 days from the date of its issue. It is valid only
within the Philippines.
If the marriage license is not used within the 120 days, then it is deemed
automatically cancelled. (Article 20, Family Code)

Q.

What is deemed to be the date of issue of the marriage license?

A.

The marriage license is deemed issued on the date of signing of the marriage
license by the local civil registrar. Therefore the period of validity of a marriage
license shall be counted from this date of signing.
Art. 18. In case of any impediment known to the local civil registrar
or brought to his attention, he shall note down the particulars
thereof and his findings thereon in the application for marriage
license, but shall nonetheless issue said license after the completion
of the period of publication, unless ordered otherwise by a
competent court at his own instance or that of any interest party.

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No filing fee shall be charged for the petition nor a corresponding


bond required for the issuances of the order. (64a)
Art. 19. The local civil registrar shall require the payment of the
fees prescribed by law or regulations before the issuance of the
marriage license. No other sum shall be collected in the nature of a
fee or tax of any kind for the issuance of said license. It shall,
however, be issued free of charge to indigent parties, that is those
who have no visible means of income or whose income is
insufficient for their subsistence a fact established by their
affidavit, or by their oath before the local civil registrar. (65a)
Art. 20. The license shall be valid in any part of the Philippines for a
period of one hundred twenty days from the date of issue, and shall
be deemed automatically canceled at the expiration of the said
period if the contracting parties have not made use of it. The expiry
date shall be stamped in bold characters on the face of every
license issued. (65a)
Q.

What is the scope of the investigative power of the local civil registrar?

A.

The investigative power of the local civil registrar is limited to noting down
impediments to a marriage that is known to him or brought to his attention, and
his findings thereon, in the application for marriage license. (Article 18, Family
Code)

Q.

Can the local civil registrar withhold the issuance of a marriage license?

A.

The local civil registrar is not authorized to withhold the issuance of the marriage
license. Even if an impediment to the marriage is known by or made known to the
local civil registrar, he is duty bound to issue the marriage license upon payment of
the necessary fees, with the exception of indigent applicants.

Q.

In what instance may the local civil registrar withhold issuance of a marriage
license?

A.

The local civil registrar may withhold issuance of a marriage license upon order by
a competent court initiated by the local civil registrar or that of any interested
party. (Article 18, Family Code)
Interested party includes the contracting parties parents, brothers, sisters,
existing spouse, or those which may be prejudiced by the marriage.

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The petition filed in court to prevent the issuance of the marriage license (i.e.
injunction) shall require no filing fee, nor shall a corresponding bond be required for
the issuance of the court order. (Article 18, Family Code)
The local civil registrar may also withhold the issuance of a marriage license when
the contracting parties are foreigners and fail to submit a certificate of legal
capacity as required in Article 21 of the Family Code. In such a case, the foreigners
must intend to have their marriage solemnized by persons listed in Article 7 of the
Family Code or the mayor pursuant to the Local Government Code.
Q.

What is the effect on the marriage if a marriage license is issued despite an


injunction on it issued by a competent court?

A.

The issuance of the marriage license despite the injunction from the court is only an
irregularity in the formal requisites of a valid marriage license. Therefore it does
not affect the validity of the marriage. However, the party or parties responsible for
such irregularity may be held civilly, criminally, or administratively liable.

Q.

What is the policy behind the ministerial duty of the local civil registrar to issue
marriage licenses, except upon order by a competent court?

A.

It is to eliminate any opportunity for extortion. (Minutes of the 145th Joint


Meeting of the Civil Code and Family Law committees, Jun. 28, 1986, page 10)

Q.

Who are exempted from the payment of marriage license fees?

A.

Indigent parties are exempted from payment of any fees relating to the issuance of
a marriage license. Indigent parties are those who: (1) have no visible means of
income; or (2) whose income is insufficient for their subsistence.
For an indigent party to be excluded from payment of marriage license fees, he
must establish the fact of his indigence via affidavit, or by oath before the local civil
registrar. (Article 19, Family Code)
Art. 21. When either or both of the contracting parties are citizens
of a foreign country, it shall be necessary for them before a
marriage license can be obtained, to submit a certificate of legal
capacity to contract marriage, issued by their respective
diplomatic or consular officials.
Stateless persons or refugees from other countries shall, in lieu of
the certificate of legal capacity herein required, submit an affidavit
stating the circumstances showing such capacity to contract
marriage. (66a)

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Q.

When a foreigner wishes to marry in the Philippines, what must he or she submit
to the local civil registrar to obtain a marriage license?

A.

A foreigner must submit a certificate of legal capacity to contract marriage issued


by his/her diplomatic or consular officials. If the foreigner is a stateless person or a
refugee from another country, then he/she must submit an affidavit stating the
circumstances showing his/her capacity to contract marriage. The affidavit shall be
submitted in lieu of the certificate of legal capacity issued by diplomatic or consular
officials. (Article 21, Family Code)

Q.

Can the local civil registrar withhold the issuance of a marriage license to a
foreigner who has not complied with the provisions of Article 21 of the Family
Code?

A.

Yes. This is one of the exceptions to the rule that the local civil registrar must issue
a marriage license even if he finds an impediment to the impending marriage. The
other exception is when there is an order from a competent court prohibiting the
local civil registrar from doing the same.
Nonetheless, issuance of the marriage license despite non-compliance with Article
21 is a mere irregularity in a formal requirement of the law. The resulting
marriage will still be valid.

Q.

In what instance can a foreigner marry in the Philippines without obtaining a


marriage license with the local civil registrar?

A.

No marriage license is required if the contracting parties are foreigners who desire
to have their marriage solemnized by their countrys consul-general officially
assigned in the Philippines, and provided that their countrys laws allow the same.
Art. 22. The marriage certificate, in which the parties shall declare
that they take each other as husband and wife, shall also state:
(1) The full name, sex and age of each contracting party;
(2) Their citizenship, religion and habitual residence;
(3) The date and precise time of the celebration of the marriage;
(4) That the proper marriage license has been issued according
to law, except in marriage provided for in Chapter 2 of this
Title;
(5) That either or both of the contracting parties have secured
the parental consent in appropriate cases;

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(6) That either or both of the contracting parties have complied


with the legal requirement regarding parental advice in
appropriate cases; and
(7) That the parties have entered into marriage settlement, if
any, attaching a copy thereof. (67a)
Art. 23. It shall be the duty of the person solemnizing the marriage
to furnish either of the contracting parties the original of the
marriage certificate referred to in Article 6 and to send the
duplicate and triplicate copies of the certificate not later than
fifteen days after the marriage, to the local civil registrar of the
place where the marriage was solemnized. Proper receipts shall be
issued by the local civil registrar to the solemnizing officer
transmitting copies of the marriage certificate. The solemnizing
officer shall retain in his file the quadruplicate copy of the
marriage certificate, the copy of the marriage certificate, the
original of the marriage license and, in proper cases, the affidavit of
the contracting party regarding the solemnization of the marriage
in place other than those mentioned in Article 8. (68a)
Q.

State the rule on presumption of marriage.

A.

That a man and a woman deporting themselves as husband and wife have entered
into a lawful contract of marriage is a presumption which is considered satisfactory
if uncontradicted, but may be contracted and overcome by evidence. (Rule 131,
Section 5[aa], New Rules of Court of the Philippines).
Semper presumitur pro matrimonio always presume marriage means that public
policy should aid acts that are intended to validate marriages and to retard acts
that are intended to invalidate marriages. This is necessary for the order of society.
(Adong v. Cheong Seng Gee, 43 Phil. 43).

Q.

What is the best evidence of a marriage?

A.

The best evidence of a marriage is the marriage contract or the marriage certificate.
(Lim Tanhu v. Ramolete, 66 SCRA 425)
It must be the original for a mere photocopy is a worthless piece of paper. (Vda. de
Chua v. Court of Appeals, G.R. No. 116835, Mar. 5, 1998) The exception is when
the photocopy of the marriage certificate is issued by the Office of the Local Civil
Registrar and duly certified by it as an authentic copy of the records in his office.
Such photocopy is admissible as evidence.

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But when the photocopy of the marriage certificate is not certified by the Office of
the Local Civil Registrar, but is presented in court without objection from the
opposing party and consequently admitted by the court, then it serves as proof of
marriage or the facts contained therein. (Sy v. Court of Appeals, G.R. No. 127263,
Apr. 12, 2000)
Q.

What other evidence is deemed sufficient to prove marriage?

A.

Baptismal certificates, birth certificates, judicial decisions, and family bible in


which the names of the spouses have been entered as married can serve as
evidences of marriage. (Trinidad v. Court of Appeals, 289 SCRA 188; Orfila v.
Arellano, 482 SCRA 280).

Q.

Does the absence of a marriage certificate prove that there was in fact no marriage?

A.

No. In Delgado Vda. De La Rosa v. Heirs of Mariciana Rustia Vda. de Damian


(G.R. No. 155733, Jan. 27, 2006), the Court stated that although a marriage
contract is the primary evidence of marriage, its absence does not always prove that
no marriage took place. This is because once the presumption of marriage arises,
other evidence may be presented in support thereof. The evidence presented need
not necessarily or directly establish the marriage but must at least be enough to
strengthen the presumption of marriage.
Therefore marriage may be proved by parol evidence (Watson v. Lawrence, 134 La.
48), but both the testimony and the witness must be credible.

Q.

Is mere cohabitation direct proof of marriage?

A.

No. To prove marriage, proper documents or oral testimony, in case the former has
been lost, must be adduced. The conduct of the parties must show more than mere
living together. Cohabitation must be accompanied by conduct showing that they
intended to do so as husband and wife. (Cox v. State, 117 Ala. 103)

Q.

What kind of proof is required to attack the validity of a marriage?

A.

The evidence assailing the validity of the marriage must be strong, distinct, and
satisfactory in order to overcome the presumption of legality of marriage.
(Murchison v. Green, 128 Ga. 339, 11 LRA [NS] 702).
Thus mere statement of a civil status of a person in a certificate of title is not
sufficient to assail the validity of a marriage. (Perido v. Perido, 63 SCRA 97). So is a
marriage license obtained in a place other than the place of residence of any of the
contracting parties, since it is merely an irregularity that does not invalidate the
marriage. (People v. Janssen, 54 Phil. 176) Certification issued by the local civil

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registrar that no marriage license was issued to the parties, but with an admission
that due to the work load of the office, it cannot give full force in locating the said
marriage license, does not amount to a nullity of the marriage. (Sevilla v. Cardenas,
497 SCRA 428)
Q.

What remedy is available to persons that are not certain as to whether or not they
are legally allowed to marry?

A.

The person can file a petition for declaratory relief to seek from the court a
judgment on his/her capacity to marry. (Republic v. Orbecido III, 472 SCRA 114).

Q.

What are the duties of the solemnizing officer with respect to the marriage
certificate?

A.

The solemnizing officer has the duty to:


(1) furnish either of the contracting parties the original of the marriage certificate;
(2) to send to the local civil registrar where the marriage was solemnized the
duplicate and triplicate copies of the marriage certificate not later than 15 days
after the marriage; and
(3) to retain in his file the quadruplicate copy of the: (a) marriage certificate; (b) the
original marriage license; and (c) the affidavit of the contracting party regarding
the solemnization of the marriage in a place other than what is mentioned in
Article 8 of the Family Code. (Article 23, Family Code)

Q.

What is the effect of the failure of the solemnizing officer to discharge his duties
with respect to the marriage certificate as required in Article 23 of the Family
Code? (see previous question and answer)

A.

Under Section 41 of the Marriage Law of 1929, the officer, priest, or minister who
fails to deliver to either of the contracting parties one of the copies of the marriage
contract, or to forward the other copy to the authorities within the period fixed by
law, shall be punished by imprisonment of not more than one month, or by a fine of
not more than 300 pesos, or both, in the discretion of the court.
Art. 24. It shall be the duty of the local civil registrar to prepare the
documents required by this Title, and to administer oaths to all
interested parties without any charge in both cases. The
documents and affidavits filed in connection with applications for
marriage licenses shall be exempt from documentary stamp tax.(n)
Art. 25. The local civil registrar concerned shall enter all
applications for marriage licenses filed with him in a registry book
strictly in the order in which the same are received. He shall record
in said book the names of the applicants, the date on which the

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marriage license was issued, and such other data as may be


necessary. (n)
Q.

What is a marriage register?

A.

The marriage register is maintained by the local civil registrar and contains details
of all persons married in its locality. It contains: (1) the full names, ages, and
addresses of the contracting parties; (2) the date and place of the solemnization of
the marriage; (3) the full names and addresses of the: (a) witnesses; (b) the persons
who consented to the marriage (including their relationship with the contracting
parties); and (c) the person who solemnized the marriage.
Art. 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and
(6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry under Philippine
law. (As amended by Executive Order 227)

Q.

What is the general rule followed by the Philippines in determining the validity of a
marriage?

A.

The Philippines follows the lex loci celebrationis rule. The validity of a marriage is
determined in reference to the law of the place where it is celebrated. Thus a
marriage valid in the place where it is celebrated is considered valid in the
Philippines.

Q.

What is the exception to the general rule followed by the Philippines in determining
the validity of a marriage?

A.

While the Philippines follows the general rule of lex loci celebrationis, and therefore
recognizes as valid a marriage that is also valid under the law of the country where
it is celebrated, the exception is found in marriages prohibited under Articles 35(1),
(4), (5), and (6), 36, 37, and 38. Any marriage falling under these mentioned articles
remain invalid in the Philippines, even if celebrated in a country where the laws
recognize its validity. The reason behind this exception lies in comity. Each
sovereign has the right to declare what marriages it will or will not recognize.

Q.

Are common law marriages obtained abroad by Filipinos valid in the Philippines?

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A.

No, Philippine laws do not recognize common law marriages obtained abroad by
Filipinos. The first paragraph of Article 26 makes use of the term solemnized and
not merely contracted. The second paragraph uses the term celebrated. By the
use of these words, it is therefore required that there is performance of the formal
act or ceremony joining man and woman as husband and wife for a marriage to be
deemed valid.

Q.

Are same sex marriages of Filipinos abroad valid in the Philippines?

A.

No. Such marriages are prohibited by public policy. Also, the Family Code is replete
with terms and articles (e.g. husband and wife, father and mother, man and
woman) clearly indicating that the law intended heterosexual relationships.

Q.

How do you prove a foreign marriage?

A.

To establish a valid marriage pursuant to the comity provision of Article 26, it is


necessary to prove the foreign law as a question of fact and then to prove the
celebration of marriage pursuant thereto by convincing evidence. (Ching Huat v. Co
Heong, 77 Phil. 988) The presumption arises on proof of a marriage in another
jurisdiction, that such marriage was performed in accordance with the law of that
jurisdiction. (Patterson v. Gaines, 12 L. Ed. 553) If such law of the other state is not
pleaded nor proved and for the purpose of determining the validity of a marriage in
the said state, the laws of such state, in the absence of proof to the contrary, will be
presumed by the court to be the same as the laws of its own state. (Wong Woo Yin v.
Vivo, 13 SCRA 552).

Q.

Who has the burden of proving the fact of a foreign marriage?

A.

He who asserts that the marriage is not valid under our law bears the burden of
proof to present the foreign law. (Board of Commissioners (CID) v. Dela Rosa, 197
SCRA 853)

Q.

Is absolute divorce recognized here in the Philippines?

A.

Generally, absolute divorce between two citizens of the Philippines is not


recognized in the Philippines. (Garcia v. Recio, G.R. No. 138322, October 2, 2001)
Divorce initiated by a Filipino is against public policy. (Cang v. Court of Appeals,
296 SCRA 128)

Q.

A Filipino couple is wed here in the Philippines. Years later, they obtain a divorce
decree from New York. Thereafter, the woman got married again. Is the second
marriage valid?

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A.

No. As Philippine law does not recognize divorce, the wife then committed adultery
in entering into the second marriage. (Tenchavez v. Escano, 15 SCRA 256).

Q.

An American couple is wed in New York. Years later, they obtain a divorce decree
from New York. Thereafter, the woman got married again. Is the second marriage
valid?

A.

Yes, provided the divorce is duly proven in court. Aliens may obtain divorces
abroad, which may be recognized in the Philippines, provided, they are valid
according to their national law. The foreign marital law and the divorce decree
must be duly proven and cannot be taken judicial notice of. (Garcia v. Recio, G.R.
No. 138322, October 2, 2001). Our civil law adheres to the nationality rule on the
matter of status or legal capacity of a person. (Recto v. Harden, 100 Phil. 427; Van
Dorn v. Romillo, 139 SCRA 139; Pilapil v. Ibay Somera, 174 SCRA 653)

Q.

In what instances does the second paragraph of Article 26 apply?

A.

The second paragraph of article 26 applies to the following:


(1) where a valid marriage is celebrated, either in the Philippines or abroad,
between a Filipino citizen and a foreigner and, subsequently, the foreignerspouse obtains a valid divorce abroad capacitating him or her to remarry (2nd
paragraph Article 26, Family Code); and
(2) where originally, at the time of the marriage ceremony, both parties were
Filipinos, but at the time of the divorce, the petitioner was already a citizen of a
foreign country that allows absolute divorce (Republic v. Orbecido III, G.R. No.
154380, October 5, 2005, 472 SCRA 114).

Q.

What is the effect of change of citizenship of a former Filipino as to the applicability


of Article 26?

A.

None. If the Filipino spouse subsequently acquires his or her foreign spouses
citizenship before the divorce and he or she initiates the divorce proceeding, the
eventual divorce decree will be recognized in the Philippines not because of Article
26 but because of our adherence to the nationality principle with respect to the
status of a person. (Quita v. Court of Appeals, 300 SCRA 406; Llorente v. Court of
Appeals, G.R. No. 124371, November 23, 2000; Garcia v. Recio, supra).

Q.

A former Filipino citizen gets a divorce abroad. He/she decides to come home to the
Philippines and reacquire his/her Philippine citizenship. What is the effect to the
divorce decree?

A.

None, the divorce decree will still be recognized here. This is because at the time of
the filing of the petition for divorce, and at the time of the issuance of the decree of
divorce, he or she was not a citizen of the Philippines. His or her status, therefore,

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at the time of the divorce will be governed by the foreign country of which he or she
is a naturalized citizen and will continue even after he or she successfully
reacquires Philippine citizenship. (Recio v. Garcia, supra).
Q.

Marriage is between two Filipinos and one of them obtains an absolute divorce
abroad after he has been naturalized as a citizen of a foreign country where
absolute divorce is recognized. Such naturalized divorcee got a second marriage. Is
the second marriage valid?

A.

Yes, following the nationality principle. At the time of the divorce, he was already a
foreigner. (Recio v Garcia, supra).

Q.

What is the effect if a Filipino obtains a divorce decree abroad from his foreigner
spouse?

A.

As to the foreigner spouse, the divorce decree is recognized here. As to the Filipino
spouse, however, it is not recognized.

Q.

What is the effect on a foreigner spouse if a divorce decree is recognized?

A.

The foreign spouse who obtained the divorce decree loses his right to claim interest
in properties of the Filipino spouse. (Van Dorn v. Romillo, 139 SCRA 139). The
foreigner husband also cannot file a criminal case for adultery because, while the
Filipino wife is still considered married to him under Philippine laws, such
foreigner is not considered married to her and, therefore, does not have any legal
standing to file such criminal case. (Pilapil v. Ibay Somera, 174 SCRA 653)

Q.

How is a foreign decree recognized in the Philippines?

A.

In cases where it can be validly recognized, a foreign divorce would first have to be
proven by presentation of a foreign divorce decree duly authenticated by the foreign
court. Thus, in the case of Roehr v. Rodriguez, the Supreme Court said that before
our courts can give the effect of res judicata to a foreign judgment of divorce, it must
be shown that the parties opposed to the judgment had been given ample
opportunity to do so on grounds allowed under Rule 39, Section 48 of the 1997
Rules of Civil Procedure.

Q.

Upon the presentation of a duly authenticated copy, will the divorce decree then
have a conclusive effect upon Philippine courts such that it is bound to recognize it?

A.

No. In this jurisdiction, our Rules of Court clearly provide that with respect to
actions in personam, as distinguished from actions in rem, a foreign judgment
merely constitutes prima facie evidence of the justness of the claim of a party and,

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as such, is subject to proof to the contrary. (Rule 39, Section 48, Rules of Civil
Procedure).
Q.

What is the effect of valid recognition of a divorce decree?

A.

The marital vinculum between Rebecca and Vicente is considered severed; they are
both freed from the bond of matrimony.

Q.

What is the status in the Philippines of a marriage contracted abroad but is null
and void under the laws of such foreign state?

A.

In the event that a Filipino contracts a foreign marriage which is null and void
under the laws of the state where it has been solemnized, such marriage shall
likewise be null and void in the Philippines.

Q.

How then do you assail here in the Philippines marriage contracted abroad but is
null and void under the laws of such foreign state?

A.

A civil case can be filed in the Philippines to nullify a foreign marriage using as
basis the legal grounds for nullity provided by the marriage laws of the state where
the marriage was celebrated.

Q.

What is the status in the Philippines of a marriage contracted abroad which is null
and void under the laws of such foreign state but valid under the laws of the
Philippines?

A.

Implicit in the first paragraph of Article 26 is also the recognition that a Filipinos
foreign marriage, which is invalid under the laws where such marriage has been
solemnized but which would have been valid had such marriage been celebrated in
the Philippines, is likewise invalid in the Philippines. Thus, if a Filipino contracts a
marriage solemnized in the residence of the solemnizing judge in a country where
the law provides that a marriage shall be void if celebrated in a place other than
the chambers of the solemnizing judge, such marriage shall be considered void in
the Philippines although such marriage would have been valid had the celebration
been performed in the Philippines also in the residence of the judge.

Q.

What is the extent of the authority of a Philippine judge to wed persons?

A.

That the judge is within his or her jurisdiction, the venue of the marriage ceremony
can be anywhere within his or her jurisdiction.

Q.

What is the status in the Philippines of a marriage contracted abroad but is


voidable or annullable under the laws of such foreign state?

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In case of voidable or annullable marriage (valid up to the time of termination), the


same rule as in null and void marriages applies.
Article 27. In case either or both of the contracting parties are at
the point of death, the marriage may be solemnized without
necessity of a marriage license and shall remain valid even if the
ailing party subsequently survives. (72a)
Article 28. If the residence of either party is so located that there is
no means of transportation to enable such party to appear
personally before the local civil registrar, the marriage may be
solemnized without necessity of a marriage license. (72a)

Q.

In marriages celebrated in articulo mortis and exempted from the marriage license
requirement, what is the effect if the spouse who was at the point of death
subsequently survives?

A.

The marriage remains valid.


Article 29. In the cases provided for in the two preceding articles,
the solemnizing officer shall state in an affidavit executed before
the local civil registrar or any other person legally authorized to
administer oaths that the marriage was performed in articulo
mortis or that the residence of either party, specifying the barrio or
barangay, is so located that there is no means of transportation to
enable such party to appear personally before the local civil
registrar and that the officer took the necessary steps to ascertain
the ages and relationship of the contracting parties and the
absence of a legal impediment to the marriage. (72a)
Article 30. The original of the affidavit required in the last
preceding article, together with a legible copy of the marriage
contract, shall be sent by the person solemnizing the marriage to
the local civil registrar of the municipality where it was per formed
within the period of thirty days after the performance of the
marriage. (73a)

Q.

What happens to a marriage celebrated by a solemnizing officer who fails to comply


with the procedural requirements under Articles 29 and 30?

A.

The marriage remains valid. The procedure laid down in Articles 29 to 30 of the
Family Code relative to the duties of the solemnizing officer with respect to the
affidavit he or she has to execute is merely directory in character. Non-observance
of the requirements will not render the marriage void or annullable (Loria v. Felix,

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55 O.G. 8118). However, under the Marriage Law of 1929, any officer, priest or
minister who, having solemnized a marriage in articulo mortis or any other
marriage of an exceptional character, shall fail to comply with the provisions of
Chapter 2, Title I of the Family Code, shall be punished by imprisonment for not
less than one month nor more than two years, or by a fine of not less than three
hundred pesos nor more than two thousand pesos, or both, in the discretion of the
court.
Article 31. A marriage in articulo mortis between passengers or
crew members may also be solemnized by a ship captain or by an
airplane pilot not only while the ship is at sea or the plane is in
flight, but also during stopovers at ports of call. (74a)
Q.

When can a chief plane pilot or a ship captain solemnize marriage?

A.

A chief pilot or a ship captain may solemnize only marriages in articulo mortis
while the plane is in flight or the ship is at sea and even during stopovers at ports of
call. They can solemnize marriages only among their passengers and crew
members.
Article 32. A military commander of a unit, who is a commissioned
officer, shall likewise have authority to solemnize marriages in
articulo mortis between persons within the zone of military
operation, whether members of the armed forces or civilians. (74a)

Q.

When may a military commander solemnize marriage?

A.

As far as the military commander is concerned, he or she must be a commissioned


officer, which means that his or her rank should start from a second lieutenant,
ensign and above. (Webster Dictionary, 1991 edition) He or she must likewise be a
commander of at least a battalion. Also he or she can only solemnize a marriage if it
is in articulo mortis and in the absence of a chaplain. The marriage must be
solemnized within the zone of military operation and during such military
operation. The contracting parties may either be members of the armed forces or
civilians.
Article 33. Marriages among Muslims or among members of the
ethnic cultural communities may be performed validly without the
necessity of a marriage license, provided they are solemnized in
accordance with their customs, rites or practices. (78a)

Q.

Are all ethnic groups exempted by Article 33 from the marriage requirement?

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No, only Muslim tribes (Code of Muslim Personal Laws) and indigenous tribal
groups/cultural communities in the Cordillera Autonomous Region (CAR, RA 6766)
are exempted from the marriage license requirement. As to other ethnic groups in
the Philippines, they are still governed by the Family Code, as they do not have a
separate law.
Article 34. No license shall be necessary for the marriage of a man
and a woman who have lived together as husband and wife for at
least five years and without any legal impediment to marry each
other. The contracting parties shall state the foregoing facts in an
affidavit before any person authorized by law to administer oaths.
The solemnizing officer shall also state under oath that he
ascertained the qualifications of the contracting parties and found
no legal impediment to the marriage. (76a)

Q.
A.

What are the requisites for a marriage to be validly exempted from the marriage
license requirement under Article 34?
With respect to the exemption relative to persons cohabiting for at least five years
under Article 34 of the Family Code, it must be observed that their living together
as husband and wife must meet two distinct conditions namely: (1) they must live
as such for at least five years characterized by exclusivity and continuity that is
unbroken (Republic v. Dayot, G.R. No. 175581, March 28, 2008, 550 SCRA 435);
and (2) they must be without any legal impediment to marry each other.

Q.

Must the legal impediment be absent for the whole five years?

A.

No, for while the two requisites must concur, they do not qualify each other. In
other words, during the five-year period, it is not necessary that they must not have
suffered from any legal impediment. The second condition as to the absence of any
legal impediment must be construed to refer only to the time of the actual marriage
celebration.

Q.

A couple files an affidavit claiming that they have cohabited as husband and wife
for more than five years to qualify them for the exemption from the marriage
license requirement. In truth and in fact, however, they have cohabited only for 4
years. This notwithstanding, they were exempted from the marriage license
requirement and later got married. What is the status of the marriage?

A.

The marriage is null and void. In De Castro v. Assidao-De Castro, G.R. No. 160172,
February 13, 2008, 545 SCRA 162, the Supreme Court ruled the nullity of a
marriage on the ground of absence of a valid marriage license upon evidence that
there was in fact no cohabitation for five years contrary to the statements in the
falsified affidavit executed by the parties. The falsity of the affidavit cannot be
considered to be a mere irregularity considering that the 5-year period is a

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substantial requirement of the law to be exempted from obtaining a marriage


license.

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Chapter 3
Void and Voidable Marriages
Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of
age even with the consent of parents or guardians;
(2) Those 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;
(3) Those solemnized without license, except those covered
the preceding Chapter;
(4) Those bigamous or polygamous marriages not failing
under Article 41;
(5) Those contracted through mistake of one contracting
party as to the identity of the other; and
(6) Those subsequent marriages that are void under Article
53.
Q.

May the grounds for a void marriage under Article 35 co-exist in one case?

A.

Yes. A petition may contain many grounds for nullity of marriage, such as absent of
consent, no marriage license, psychological incapacity of the parties and bigamy,
but it has only one cause of action, which is the nullity of the marriage. (Mallion v.
Alcantara, G.R. No. 141528, October 31, 2006).

Q.

As a general rule, good faith or bad faith of the parties are immaterial in
determining whether or not the marriage is null and void. Are there any
exceptions?

A.

Yes. There are 2 exceptions: a) Article 35(2) states that if either of the contracting
parties is in good faith in believing that a solemnizing officer has authority to
solemnize a marriage though he or she actually has none, the marriage will be
considered valid. b) Article 41 refers to a person whose spouse disappears for 4 or 3
years may validly marry again if he or she has a well-founded belief that his or her
spouse is dead, procures a judicial declaration of presumptive death and at the time
of the subsequent marriage ceremony, is in good faith together with the subsequent
spouse. In these 2 cases, the good faith of only one of the contracting parties shall
make the marriage valid.

Q.

What is the property regime in a void marriage?

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A.

As a general rule, the property regime is one of co-ownership. An exception is the


subsequent void marriage due to the failure of a party to get a prior judicial
declaration of nullity of the previous void marriage pursuant to Article 40 of the
Family Code. In this case, Article 43 par.2 will apply and consequently, ACP or
CPG property regime will govern.

Q.

In a complaint for support against the husband to support their child, the husband
interposed an affirmative defense claiming that he is not married with petitioner.
Can the lower court make a declaration that the marriage was void to determine
the rights of the child to be supported?

A.

Yes. (De Castro v. Assidao-De Castro, G.R. No. 160172, February 13, 2008). A void
marriage can be collaterally attacked. Thus, the nullity of a marriage can be
asserted even if it is not the main issue of a case and that no previous declaration of
nullity if required by law with respect to any other matter where the issue of the
voidness of a marriage is pertinent or material, either directly or indirectly.

Q.

If the first marriage is void and a subsequent marriage is contracted without prior
judicial declaration of nullity of the first marriage, is the subsequent marriage
bigamous?

A.

No. In a bigamous marriage, the first marriage must have been valid. In this case,
the subsequent marriage is also void because it violates Article 40 in relation to
Articles 52 and 53 of the Family Code.

Q.

Does psychological incapacity under Article 36 pertain to insanity or total mental


inability to function in all aspects of human life?

A.

No. The ground for nullity under Article 36 is restricted to psychological incapacity
to comply with the essential marital obligations.

Q.

When must psychological incapacity occur for it to be a ground for nullity of


marriage?

A.

It must occur at the time of the marriage ceremony but can be manifested later on
during the marriage.

Q.

Can the bearing of children and cohabitation be a sign that psychological incapacity
gas been cured?

A.

No. A marriage based on psychological incapacity is void thus, ratification cannot


apply.

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Q.

Why is insanity a ground for voidable marriage while psychological or mental


incapacity is a ground for void ab initio marriages?

A.

As Justice Caguioa explained during the deliberations on the Family Code, insanity
is curable and there are lucid intervals while psychological incapacity is not.
Moreover, psychological incapacity is not a defect in the mind but in the
understanding of the consequences of marriage.

Q.

What are the 3 characteristics of psychological incapacity?

A.

a) gravity, b) juridical antecedence and c) incurability.


Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its
solemnization. (As amended by Executive Order 227)

Q.

What does the incapacity under Article 36 consist of?

A.

This incapacity consists of a) a true inability to commit oneself to the essentials of


marriage, and a real inability to render what is due by contract; b) this inability to
commit oneself must refer to the essential obligations of marriage: the conjugal act,
the community of life and love, the rendering of mutual help, the procreation and
education of offspring; c) the inability must be tantamount to a psychological
abnormality. Mere difficulty of assuming these obligations does not constitute
incapacity. It contemplates a true psychological disorder which incapacitates a
person from giving what is due. (Santos v. Court of Appeals and Julia Rosario
Bedia-Santos, G.R. No. 112019, January 4, 1995) (citing Canons and
Commentaries on Marriage by Ignatius Gramunt, Javier Hervada and Leroy
Wauck)

Q.

What characterizes psychological incapacity?

A.

Psychological incapacity must be characterized by a) gravity, b) juridical


antecedence, and c) incurability. It must be grave or serious such that the party is
incapable of carrying out the ordinary duties required in marriage; it must be
rooted in the history of the party antedating the marriage, although the overt
manifestations may emerge only after the marriage; and it must be incurable or,
even if it were otherwise, the cure would be beyond the means of the party involved.
(Santos v. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019,
January 4, 1995)

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Q.

What type of psychoses does Article 36 contemplate?

A.

It refers to a mental (not physical) incapacity that causes a party to be truly


incognitive of the basic marriage covenants, which under Article 68 of the Family
Code, include the mutual obligations to live together, observe love, respect and
fidelity and render help and support. It is confined to the most serious cases of
personality disorders which clearly demonstrate an utter insensitivity or inability
to give meaning and significance to the marriage.

Q.

When must the psychological condition exist?

A.

It must exist at the time the marriage is celebrated.

Q.

Do other forms of psychoses have any effect?

A.

Yes. If they exist at the inception of the marriage, like unsound mind or
concealment of drug addiction, habitual alcoholism, and homosexuality, they
render the marriage voidable under Article 46. If these occur during the marriage,
they become grounds for legal separation under Article 55. However, these may still
be indicia of psychological incapacity depending on the degree and severity. (Santos
v. Court of Appeals and Julia Rosario Bedia-Santos, G.R. No. 112019, January 4,
1995)

Q.

How is psychological incapacity proven?

A.

Because it deals with a state of mind, it can only be proven by indicators or external
manifestations. These must be alleged in the complaint.

Q.

What are indicators of psychological incapacity?

A.

The inability to comply with marital obligations under Article 68, which provides
that the husband and wife are obliged to live together, observe mutual love, respect,
and fidelity, and render help and support. Procreation is also an essential
obligation. Likewise, they must comply with their duties relative to parental
authority under Articles 220, 221, and 225. The prolonged refusal of a spouse to
have sexual intercourse, although physically capable, is also considered a good
indicator (Chi Ming Tsoi v. Court of Appeals, 78 SCAD 57, 266 SCRA 324). Another
indicator is unreasonable attachment to his or her family (parents, brothers,
sisters) or to his or her friends or barkada such that the importance and devotion
which should be given to his or her own spouse and children are subordinated.
Separation and abandonment may also be a good indicator, although not conclusive
proof (Republic v. Quitero Hamano, 428 SCRA 735).

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Q.

What are not indicators of psychological incapacity?

A.

Mere psychological idiosyncrasies are not of themselves manifestations


psychological incapacity. It cannot be merely physical illness but must be attributed
to psychological illness (Bier v. Bier, G.R. No. 173294, February 27, 2008, 547
SCRA 123). It cannot be mere refusal or neglect to comply with the obligations, it
must be downright incapacity to perform (Republic v. Cabantug-Baguio, G.R. No.
171042, June 30, 2008).

Q.

Does the fact that a person is able to perform his or her marital obligations with a
person other than his or her other spouse negate the existence of psychological
incapacity?

A.

No. This ground is personal and limited so that just because a person is
psychologically incapacitated to perform his or her marital obligations with his or
her present spouse does not mean the such will also be the case with any other
person.

Q.

Should the court consider expert opinion as evidence?

A.

Yes. The court must consider as decisive evidence the expert opinion of
psychologists or psychiatrists in the psychological and mental temperaments of the
parties. Data about a persons life before and after the ceremony were presented to
these experts who were asked to give professional opinions about the partys
mental capacity at the time of the wedding (Te v. Te, G.R. No. 161793, February 13,
2009). Expert testimony is important to establish the precise cause of psychological
incapacity, and to show that it existed at the time of the celebration (Hernandez v.
Court of Appeals). However, the Court may or may not accept the testimony since
the decision must be based on the totality of the evidence (Paras v. Paras, August 2,
2007, 529 SCRA 81).

Q.

Is personal examination by a physician required?

A.

No, if the totality of the evidence presented is enough to sustain a finding of


psychological incapacity. The evidence must show a link between the manifest
psychological incapacity and the psychological disorder itself (Marcos v. Marcos).

Q.

What are some instances when the Supreme Court denied the petition for nullity of
marriage despite a finding of psychological incapacity by a psychiatrist?

A.

The Supreme Court rejected the findings of a psychologist as unreliable when the
conclusions in the reports appear to be exaggerated extrapolations, derived from
isolated incidents, rather than from continuing patterns. The particulars were
mere snapshots, rather than a running account of the partys life (So v. Valera, G.R.

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No. 150677, June 5, 2009). In another case, the Supreme Court found that the
psychological report was very general and did not state specific linkages between
the personality disorder and the behavioral patter of the spouse during the
marriage (Rumbaua v. Rumbaua, G.R. No. 166, August 14, 2009).
Q.

Can the admissibility of the psychiatric report on the wife be objected to on the
ground of privileged communication between doctor and patient?

A.

It is not within the doctor-patient privilege where the one who will testify on the
report is not the doctor but the husband. His testimony will not have the force and
effect of the testimony of the physician who made the report. The proper objection
should have been on the ground of hearsay (Krohn v. Court of Appeals, G.R. No.
108854, June 14, 1994).

Q.

What are some elements necessary for a mature marital relationship which the
court must consider?

A.

1) A permanent and faithful commitment to the marriage partner; 2) openness to


children and partner; 3) stability; 4) emotional maturity; 5) financial responsibility;
6) an ability to cope with the ordinary stresses and strains of marriage, etc. (Te v.
Te, G.R. No. 161793, February 13, 2009).

Q.

What is the shift in the use of these psychological grounds?

A.

Originally, the emphasis was on the parties inability to exercise proper judgment
at the time of the marriage (lack of due discretion). Recently, cases concentrate on
the parties incapacity to assume or carry out their responsibilities and obligations
as promised (lack of competence) (Te v. Te, G.R. No. 161793, February 13, 2009).

Q.

What are some causes of personality disorders?

A.

(1) Freudian. Fixation at certain stages of development leads to certain personality


types. Some disorders are derived from oral, anal and phallic character types.
(2) Genetic factors. There may be a genetic factor involved in the etiology of
antisocial and borderline personality disorders.
(3) Neurobiological theories. Schizotypal personality has been associated with low
platelet monoamine oxidase (MAO) activity and impaired smooth pursuit eye
movement.
(4) Brain wave activity. Abnormalities in EEG have been reported in antisocial
personality. (Te v. Te, G.R. No. 161793, February 13, 2009).

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What are the types of disorders?

A. According to the American Psychiatric Associations Diagnostic and Statistical Manual


of Mental Disorders, there are three clusters:
(1) Cluster A: Paranoid, schizoid and schizotypal personality disorders. Persons with
this disorder have odd or eccentric habits or traits.
(2) Cluster B: Antisocial, borderline, histrionic, narcissistic personality disorders.
Persons appear overly emotional, erratic and dramatic.
(3) Cluster C: Avoidant, dependent, obsessive-compulsive and passive-aggressive
personality disorders. Persons appear anxious or fearful. (Te v. Te, G.R. No. 161793,
February 13, 2009).
Q.

Do decisions of the Catholic tribunal on this matter have any value in court?

A.

Yes, they have persuasive effect. Because psychological incapacity as a ground for
nullity was essentially lifted from the Canon Laws of the catholic Church, the
opinion of Canon Law experts are helpful in understanding Article 36. The
intendment of Article 36 is consistent with Canon Law.

Q.

What are the guidelines in invoking and proving psychological incapacity?

A.

The Supreme Court enumerated the following guidelines:


(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of
marriage.
(2) The root cause of the psychological incapacity must be a) medically or clinically
identified, b) alleged in the complaint, c) sufficiently proven by experts, and d)
clearly explained in the decision. The incapacity must be psychological, not
physical. The evidence must convince the court that the party/parties was
mentally or psychically ill to such an extent that the person could not have
known the obligations he was assuming, or knowing them, could not have given
valid assumption thereof. The root cause must be identified as a psychological
illness and its incapacitating nature fully explained. Expert evidence may be
given by qualified psychiatrists and clinical psychologists.
(3) The incapacity must be proven to be existing at the time of the celebration of the
marriage. While the manifestation of the illness need not be perceivable at that
time, the illness must have attached at such moment or prior thereto.

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(4) The incapacity must be shown to be medically or clinically permanent or


incurable. The incurability may be absolute or relative only in regard to the
other spouse, not necessarily absolutely against everyone. The incapacity must
also refer to the assumption of marriage obligations.
(5) The illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. It must be downright incapacity,
not mere refusal, neglect or difficulty.
(6) The essential marital obligations mustt be those embraced by Articles 68 to 71
of the Family Code as regards the husband and wife, and Articles 220, 221 and
225 in regard to parents and children. The obligations not complied with must
be stated in the petition, proven by evidence, and included in the text of the
decision.
(7) Interpretations by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling, should be given great respect
by the courts.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. (Republic of the Philippines v. Court
of Appeals and Molina, G.R. No. 108763, February 13, 1997).
Q.

Should the guidelines established in Molina be applied strictly?

A.

No. Each case must be judged not on the basis of a priori assumptions, predilections
or generalizations but according to its own facts. The courts should interpret the
provision on a case-to-case basis; guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals (Te v.
Te, G.R. No. 161793, February 13, 2009).
Art. 37. Marriages between the following are incestuous and void
from the beginning, whether relationship between the parties be
legitimate or illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full or half blood. (81a)

Q.
A.

What are the reasons for the prohibition of incestuous marriages?


There are a number of reasons.
1) They are abhorrent to the nature, not only of civilized men, but of barbarous and
semi-civilized peoples (Gould v. Gould, 78 Conn. 242, 61 A 604, cited in 35 Am. Jur.
266);

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2) It leans towards the confusion of rights and duties incident to family relations
(supra);
3) Also, science and experience have established beyond cavil that such
intermarriages very often result in deficient and degenerate offsprings, which
would amount to a serious deterioration of the race (supra);
4) This includes preventing deleterious recessive genes in their offspring (Farrow
and Juberg, Genetics and Laws Prolubity Marriage in the United States, 209
U.A.M.A. 534, 537 [1959]); and
5) Another reason is the social and psychological aspects of an incestuous marriage.
Social prohibitions against incest promote the solidarity of the nuclear family
(American Law Institute, Model and Commentaries 230.2, pp. 403-407 [1980]
contained in Family Law by Harry Krause, St. Paul, Min., West Publishing Co.,
1983, pages 29-30).
Art. 38. The following marriages shall be void from the beginning
for reasons of public policy:
(1) Between collateral blood relatives whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and step-children;
(3) Between parents-in-law and children-in-law;
(4) Between the adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the
adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse, or his or her own
spouse. (82)
Art. 39. The action or defense for the declaration of absolute nullity
of a marriage shall not prescribe. (As amended by Executive Order
227 and Republic Act No. 8533)
Q.

What are the reasons for the prohibition of void marriages?

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A.

Article 38 provides for void marriages by reason of public policy. Marriages


described in Article 38 will not serve the fundamental objective of nurturing a
stable family unit that can effectively be the foundation of society.

Q.

Is the enumeration exclusive?

A.

Yes, following the general rule that only those declared by law as a void marriage
should be treated as such.

Q.

Can a guardian and his/her ward validly marry?

A.

Yes.

Q.

Can a principal and his/her agent marry?

A.

Yes.

Q.

To what extent does the prohibition on collateral blood relatives by consanguinity


apply?

A.

4th civil degree of consanguinity.

Q.

What is the reason behind such prohibition?

A.

The genetic reason and preventing deleterious recessive genes in the offspring
(Farrow and Juberg, Genetics and Laws Prolubity Marriage in the United States,
209 U.A.M.A. 534, 537 [1959]).

Q.

Is relationship by consanguinity capable of dissolution?

A.

No (Sta. Maria 2010 ed., 244).

Q.

If a common ascendant dies, is the relationship of the first cousins severed?

A.

No (Sta. Maria 2010 ed., 244).

Q.

How do you determine whether two persons are relatives?

A.

They have to consider their nearest and immediate common ascendant and then
count the number of relatives from one of them to the common ascendant and from
the common ascendant to the other one.

Q.
A.

Who are considered collateral relatives by consanguinity in the 4th civil degree?

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2.
3.
4.
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First cousins
Uncle
Aunt
Niece
Nephew

Q.

Are marriages between collateral blood relatives by the half-blood prohibited?

A.

No. (Sta. Maria 2010 ed., 247, In Re Simms Estate, 26 NY2d 163, 46 ALR 3d 1398).

Q.

Why are marriages between collateral blood relatives by the half-blood not
prohibited?

A.

All doubts must be construed in favor of marriage. Only those expressly prohibited
by law as void shall be treated as such. Also, since what is involved in Article 38(1)
has been categorized as a marriage against public policy, it must be strictly
construed in favor of the contracting parties and against its illegality.

Q.

What is affinity?

A.

It is a connection formed by marriage. It places the husband in the same degree of


nominal propinquity to the relatives of the wife as that in which she herself stands
towards them and gives the wife the same reciprocal connection with the relations
of the husband. (Kelly v. Neely, 12 Ark. 657, 659, 56 Am. Dec. 288).

Q.

Who are related by affinity?

A.

1. Parents in law and children in law


2. Step parents and step children

Q.

Who are prohibited to marry under marriages by affinity?

A.

Marriages between parents in law and children in law and between step parents
and step children.

Q.
A.

What is the effect of the termination of Marriage on the affinity prohibition?


Relationship by affinity is likewise terminated and said persons become strangers.
Thus, allowing them to validly marry (Sta. Maria 2010 ed., 251-252, Back v. Back,
125 Northern Reports (NW) 1009).

Q.

What is the effect of the death of one of the spouses to the relationship by affinity?

A.

There are two conflicting views (Sta. Maria 2010 ed., 252).

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What are these views?

A.

There are two views.

67

1. That the relationship is not terminated whether there are children or not in the
marriage (Carman v. Newell, N.Y., 1 Demo 25, 26).
2. The relationship by affinity is dissolved, if the spouses have no living issues or
children and one of the spouses dies. The relationship by affinity ceases with the
dissolution of the marriage which produces it (Kelly v. Neely, 12 Ark. 657, 659, 56
Am. Dec. 288).
However, if there are living issues or children of the marriage in whose veins the
blood of the parties are commingled, since the relationship of affinity was continued
through the medium of the issue of the marriage the relationship is continued
despite the death of one of the spouses (Paddock v. Wells, 2 Barb. Ch. 331, 333).
Q.

Which is the better view?

A.

The second view is accepted and supported by most judicial authorities (Sta. Maria
2010 ed., 253).

Q.

What are the prohibitions to marriages between persons who have an adoptive
relationship?

A.

1.
2.
3.
4.

The adopted cannot marry any of the following.


The adopter
The surviving spouse of the adopter
The legitimate child of the adopter
The other adopted children of the adopter

Q.

What is the relationship created in adoption?

A.

Limited to one of parent and child.

Q.

Who can the adopted validly marry?

A.

The following.
1.
Parents of the adopter
2.
Illegitimate child of the adopter
3.
Other relatives of the adopter, whether by consanguinity or affinity

Q.

Who can the adopter validly marry?

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The adopter can marry.


1. The legitimate, illegitimate or adopted child
2. The natural parent
3. Other relatives, whether by consanguinity or affinity, of the adopted.

Q.

What is the prohibition under Art. 38 (9)?

A.

Void marriages between parties, where one, with the intention to marry the other,
killed that other persons spouse or his or her own spouse.

Q.

Is prior conviction required?

A.

No. Mere preponderance of evidence is required to prove the killing (Minutes of the
149th Meeting of the Joint Civil Code and Family Law Committees held on August
2, 1986, page 3).

Q.

Is a mutual intention to kill the other persons spouse required?

A.

No. A unilateral intention is sufficient and need not be shared by the other spouse
so that even the unknowing party will be affected by the void characted of the
marriage (Minutes of the 149th Meeting of the Joint Civil Code and Family Law
Committees held on August 2, 1986, page 3).

Q.

What is the effect of a judicial decree of nullity (JDN)?

A.

A JDN of a marriage does not legally dissolve a marriage because such a marriage
is invalid from the beginning and therefore, being non-existent, cannot be dissolved.
The JDN merely declares or confirms the voidness, non-existence, or incipient
invalidity of a marriage.

Q.

Can a JDN be filed by the children even after the death of the contracting party?

A.

No. Only the husband and the wife can file the case and if filed, the case will be
closed or terminated if during its pendency either of the husband or the wife should
die. Heirs can no longer file a case for the nullity of marriage of their parents or of
their parent with their step-parent (SC en banc resolution in A.M. No. 02-11-10 and
Enrico v. Heirs of Medinaceli, G.R. No. 173614, September 28, 2007, 534 SCRA 419,
reversing Ninal v. Bayadong, 328 SCRA 122).

Q.

Is the petition imprescriptible?

A.

Yes, by express provision of Article 39.

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Q.

Can a contracting party who is a wrongdoer, file a petition for the JDN of marriage?

A.

Yes. Any of the parties to a void marriage may file a nullity case.

Q.

Can a void marriage be collaterally attacked by any interested party?

A.

Yes. In any proceeding where the determination of thr validity of the marriage is
necessary to give rise to certain rights or to negate certain rights (Chi Ming Tsoi v.
CA, 78 SCAD 57, 266 SCRA 324). Ex. In an intestate proceeding where certain
heirs can attack the validity of the marriage of the deceased parent so that the
children of the deceased parent can be considered illegitimate for purposes of
inheritance.
Art. 40. 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. (n)

Q.

What does Art. 40 require?

A.

It requires that if a marriage is void ab initio any one of them may contract a
subsequent valid marriage only upon a previous JDN of marriage of the previous
marriage. Otherwise, the subsequent marriage in itself shall be declared void in
accordance with Art. 40, 52, and 53.
Note: JDN must be registered with the local civil registrar and the partition,
liquidation, and distribution of the properties must be recorded in the proper
registry
of
property.

Q.

What

A.

It depends upon the time of solemnization of the said subsequent marriage.

Q.

What is the reason behind the requirement of a JDN?

A.

For the projected marriage to be free from legal infirmity. The law seeks to ensure
that a prior marriage is no impediment to a second sought to be contracted by one
of the parties.
What is the only acceptable proof of the nullity of a first marriage for purposes of
remarriage?

Q.

is

the

basis

of

the

status

of

subsequent

marriage?

A.

Judicial declaration of nullity of marriage. (Domingo v. Court of Appeals, 226


SCRA 572)

Q.

What is the purpose of Article 40 in requiring a judicial declaration of nullity

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before one can remarry?


A.

To do away with any continuing uncertainty on the status of the second marriage
(Valdes v. RTC, 260 SCRA 221).

Q.

May the validity of a marriage be collaterally attacked in a support case?

A.

Yes. See the case of De Castro v. Assidao-De Castro, G.R. No. 160172, where the
Supreme Court ruled that in a case for support, a lower court can declare a
marriage void even without prior judicial declaration of nullity of void marriage
filed in a separate action. It reasoned that the determination of the validity of
marriage was important in the resolution of the right of the child to be supported.
Art. 41. A marriage contracted by any person during subsistence of
a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present has a
well-founded belief that the absent spouse was already 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, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a summary
proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of reappearance of the absent spouse. (83a)

Q.

How is the crime of bigamy committed?

A.

The crime of bigamy is committed by any person who shall contract a second or
subsequent marriage (1) before the former marriage has been legally dissolved or
(2) before the absent spouse has been declared presumptively dead. (Article 349 of
the Revised Penal Code)

Q.

May there be a prosecution for bigamy where the first marriage is void ab initio?

A.

None. Bigamy contemplates a first marriage which is valid or at least annullable


and not void from the beginning.

Q.

A married B in 1995. There was no marriage license. In 1998, A married C. B was


still living at the time of the celebration of the second marriage. May A be
prosecuted for bigamy?

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A.

No. Since the first marriage is void ab initio.

Q.

A married B in 1995. Their marriage was annullable but was not annulled. In
1998, A married C. B was still living at the time of the celebration of the second
marriage. May A be prosecuted for bigamy?
Yes.

A.
Q.

A married B in 1995. There was no marriage license. In 1998, and without taking
any steps to have the marriage with B declared void, A married C. B was still living
at the time of the celebration of the second marriage. What is the status of A and
Cs marriage?

A.

The marriage is void for failing to comply with the requirement of securing a
judicial declaration of nullity.

Q.

Is there an exception where a second bigamous marriage may be considered valid?

A.

Yes. A bigamous marriage may be considered valid if, prior to the subsequent
marriage and without prejudice to the effect of reappearance of the other spouse,
the present spouse obtains a judicial declaration of presumptive death via a
summary proceeding in court of competent jurisdiction.

Q.

What is the weight of a judicial declaration of presumptive death?

A.

The declaration is only prima facie. Contrary evidence may be shown.

Q.

How may a second marriage contracted after the procurement of a judicial


declaration of presumptive death be terminated?

A.

An affidavit of reappearance of the absent spouse may be filed in the civil registry
where the parties to the second marriage reside. The second marriage will then be
automatically terminated.

Q.

If there is failure to liquidate the property of the first marriage and the present
spouse remarries and thereafter, the absent spouse from the first marriage
reappears, what is the property regime of the second marriage?

A.

Complete separation of property.

Q.

Discuss the requirement of well founded belief as a requirement before a judicial


declaration of presumptive death is issued.

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A.

Due diligence must be exercised to ascertain the whereabouts of the absent spouse.
(United States v. Biasbas, 25 Phil. 71).

Q.

Is a judicial declaration required before the presumption of death applied?

A.

No. The presumption arises by virtue of law.


Art. 42. The subsequent marriage referred to in the preceding
Article shall be automatically terminated by the recording of the
affidavit of reappearance of the absent spouse, unless there is a
judgment annulling the previous marriage or declaring it void ab
initio.
A sworn statement of the fact and circumstances of reappearance
shall be recorded in the civil registry of the residence of the parties
to the subsequent marriage at the instance of any interested
person, with due notice to the spouses of the subsequent marriage
and without prejudice to the fact of reappearance being judicially
determined in case such fact is disputed. (n)
Art. 43. The termination of the subsequent marriage referred to in
the preceding Article shall produce the following effects:
(1) The children of the subsequent marriage conceived prior to its
termination shall be considered legitimate;
(2) The absolute community of property or the conjugal
partnership, as the case may be, shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his or
her share of the net profits of the community property or conjugal
partnership property shall be forfeited in favor of the common
children or, if there are none, the children of the guilty spouse by a
previous marriage or in default of children, the innocent spouse;
(3) Donations by reason of marriage shall remain valid, except that
if the donee contracted the marriage in bad faith, such donations
made to said donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other
spouse who acted in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated as irrevocable; and

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(5) The spouse who contracted the subsequent marriage in bad


faith shall be disqualified to inherit from the innocent spouse by
testate and intestate succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad
faith, said marriage shall be void ab initio and all donations by
reason of marriage and testamentary dispositions made by one in
favor of the other are revoked by operation of law. (n)
Q.

Who may file the sworn statement of reappearance?

A.

Any interested party may file the sworn statement. (parents, children, present
spouse, subsequent spouse and even the parents and children of the other
contracting spouse in the subsequent marriage)

Q.

What is the status of the children conceived during the subsequent marriage in
cases of presumptive death of one of the spouses and before termination of the
same?

A.

The children are legitimate.

Q.

In the event that the absent spouse reappears causing the subsequent marriage to
be automatically terminated, will the donations by reason of the second marriage
remain valid?

A.

It depends. If both the parties are in good faith, the donations by reason of marriage
shall remain valid even if the subsequent marriage is terminated. However, if the
done acted in bad faith in contracting the marriage, the donation is terminated by
operation of law.

Q.

Is the rule with respect to donations the same as in insurance policies?

A.

No the rules are different. Here, the innocent spouse has the choice of revoking or
maintaining as beneficiary in an insurance policy the other spouse who acted in
bad faith. Even if the designation as beneficiary is irrevocable, if the innocent
spouse chooses to revoke, he/she can validly do so.

Q.

Is the spouse who was in bad faith in contracting the subsequent marriage eligible
to succeed the innocent spouse?

A.

No. The spouse in bad faith may not inherit both through testate and intestate
succession.

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Q.

What is the status of the subsequent marriage where bad faith is present?

A.

It depends. If only one of the parties to the subsequent marriage is in bad faith, the
marriage is still valid. For as long as there is one party who is in good faith, such
marriage is valid. It is only when both parties are in bad faith will the subsequent
marriage be void.

Q.

What is the status of the children where both parties in the subsequent marriage
are in bad faith?
The children are illegitimate.

A.

Art. 45. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
(1) That the party in whose behalf it is sought to have the
marriage annulled was eighteen years of age or over but
below twenty-one, and the marriage was solemnized
without the consent of the parents, guardian or person
having substitute parental authority over the party, in
that order, unless after attaining the age of twenty-one,
such party freely cohabited with the other and both lived
together as husband and wife;
(2) That either party was of unsound mind, unless such party
after coming to reason, freely cohabited with the other as
husband and wife;
(3) That the consent of either party was obtained by fraud,
unless such party afterwards, with full knowledge of the
facts constituting the fraud, freely cohabited with the
other as husband and wife;
(4) That the consent of either party was obtained by force,
intimidation or undue influence, unless the same having
disappeared or ceased, such party thereafter freely
cohabited with the other as husband and wife;
(5) That either party was physically incapable of
consummating the marriage with the other, and such
incapacity continues and appears to be incurable; or
(6) That either party was afflicted with a sexuallytransmissible disease found to be serious and appears to
be incurable. (85a)
Art. 46. Any of the following circumstances shall constitute fraud
referred to in Number 3 of the preceding Article:
(1) Non-disclosure of a previous conviction by final judgment of the
other party of a crime involving moral turpitude;

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(2) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its
nature, existing at the time of the marriage; or
(4) Concealment of drug addiction, habitual alcoholism or
homosexuality or lesbianism existing at the time of the
marriage.
No other misrepresentation or deceit as to character, health, rank,
fortune or chastity shall constitute such fraud as will give grounds
for action for the annulment of marriage. (86a)
Q.

Enumerate the grounds which, existing at the time of the marriage, may be a
ground for annulment?

A.

Briefly, as enumerated in Article 45.


(1) One of the contracting parties was eighteen years of age or over but below
twenty-one, and the consent of the parents, guardian or person having substitute
parental authority over the party, in that order, was not given.
(2)One of the contracting parties was of unsound mind;
(3)That the consent of one of the contracting parties was obtained by fraud;
(4)That the consent of one of the contracting parties was obtained by force,
intimidation or undue influence;
(5) That either party was physically incapable of consummating the marriage with
the other, and such incapacity continues and appears to be incurable;
(6)That either party was afflicted with a sexually-transmissible disease found to be
serious and appears to be incurable
The grounds for annulment are exclusive such that only those grounds provided by
law can sustain an action to bring an annulment suit.

Q.

What constitutes fraud as stated in number 3 of Article 45?

A.

Fraud is constituted by any of the following acts as stated in Article 46:


(1) Non-disclosure of a previous conviction by final judgment of the other party of a
crime involving moral turpitude;

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(2) Concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband;
(3) Concealment of sexually transmissible disease, regardless of its nature, existing
at the time of the marriage; or

.
Q.
A.

(4) Concealment of drug addiction, habitual alcoholism or homosexuality or


lesbianism existing at the time of the marriage.
Are the grounds for annulment of marriage under the Family Code exclusive?
Yes. Annulment cannot be left to the whims of the spouses, as the state has a
serious concern and interest over the maintenance of the marriage and the family
unit brought about by the same. Thus, mere co-habitation is not a ground for
annulment. (Villanueva v. Court of Appeals, G.R. No. 132955, October 27, 2006)
Note that annullable marriage is the same as a voidable marriage.

Q.

What is the difference between void and voidable marriage?

A.

A void marriage is invalid from the beginning, but an annullable or voidable


marriage is considered valid up to the time it is terminated.

Q.

Why is the lack of parental consent a ground for annulment?

A.

The law considers persons age of at least 18 years and below 21 years as not
possessing that degree of maturity to be able to comprehend thoroughly the
consequences and serious responsibilities of marital relations.

Q.

What does the Family Code mean by unsound mind as a ground for annulment?

A.

Unsoundness of the mind refers to a derangement of the mind to prevent the party
from comprehending the nature of the contract and from giving to it his free and
intelligent consent. Thus, it is clear that marriages are not invalidated by mere
weakness of mind or dullness of intellect, or eccentricities or partial dementia are

Q.

Who has the burden of proving the unsoundness of mind?

A.

The burden of proof of insanity rests upon him who alleges insanity and it devolves
upon him to establish the fact of insanity by a preponderance of evidence. However,
if previous insanity is proved, the burden of proof is usually considered to shift to
him who asserts that the act was done while the person was sane.

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Q.

What does the Family Code mean by fraud as a ground for annulment?

A.

Fraud refers to the non-disclosure or concealment of certain circumstances, which


materially affect the essence of marriage.

Q.
A.

Can any form of fraud or concealment be considered a ground for annulment?


No. The circumstances of fraud are limited to those enumerated in Article 46. It is
exclusive

Q.

Can any conviction be considered as fraud for its non-disclosure?

A.

No. The conviction contemplated under the Family Code is a conviction by final
judgment of a crime involving moral turpitude, which includes everything that is
contrary to justice, honesty, or good morals. It also must be conviction prior to
marriage

Q.

Can failure to investigate the criminal record of a spouse bar the other spouse for
raising it as a ground for annulment?

A.

No. It is not necessary that one of the parties investigate the other and his or her
failure to do so will not bar a case for annulment on this ground if it later develops
that the party concerned has been convicted of a crime before the marriage.

Q.

Can both the husband and the wife be guilty of concealment of pregnancy as fraud?

A.

No. Only the wife can commit fraud, because maternity is always certain while
paternity may be disputed.

Q.

Does good faith of the wife matter when the ground for annulment is concealment
of pregnancy as fraud?

A.

Yes. The concealment must have been done in bad faith. Thus, if a woman, after
having sexual intercourse with another man previous to marriage ceremony was
diagnosed as not pregnant and thereafter married her fianc believing that she was
not pregnant, the marriage cannot later be annulled. Thus, even if it turned out
that her previous diagnosis was completely wrong and that she was really
pregnant. There was no bad faith on her part. Thus, she could not be guilty of
fraud.

Q.

Is the mere pregnancy of the wife at the time of marriage sufficient to annul the
marriage?

A.

No. There must be a concealment of such pregnancy by the wife. However, if the
woman did not expressly inform the man of her pregnancy, but such physical

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condition was readily apparent to the man, he cannot claim lack of knowledge of
such pregnancy (Buccat v. Buccat, 72 Phil. 19). Also, the mere fact that the woman
at the time of the marriage is four months pregnant cannot be conclusive as to the
apparency of such pregnancy so as to bar the man from invoking this particular
ground (Aquino v. Delizo, 109 Phil. 21).
Is the unchaste character of the wife a bar to raise the ground of concealment of
pregnancy as fraud?

A.

Yes. A man knew of the unchaste character of a woman with whom he likewise had
extra-marital sexual intercourse. He subsequently married such woman who was
pregnant and assured him that it was his child and when in fact it could not have
been his child. The man is not allowed to have his marriage annulled on this
particular fraudulent act. The American Court gave four reasons: (1) he did not to
court with clean hands, (2) the husband, knowing of the wifes unchastity and
pregnancy, was put upon his inquiry as to her condition and the paternity of any
child she may have conceived, (3) he was sufficiently apprised of her want of
chastity to deprive him of the right to complain, (4) he, having taken the woman as
his wife for better or for worse, he ought not to be permitted to say that she was
worse than he expected (Lyman v. Lyman, 90 Conn. 399, 97 Atl. 312, L.R.A. 1916E,
643).

Q.

If a woman misrepresented to her fianc that she was pregnant for the purpose of
inducing her fianc to marry her when in fact she was not pregnant, can the
husband use concealment of pregnancy as fraud to be a ground for annulment of
their marriage?

A.

No. Article 46 (2) only contemplates concealment of a pregnancy and not


concealment of non-pregnancy.

Q.

Is the nature or gravity of sexually-transmissible disease concealed material to


constitute fraud as a ground for annulment of marriage?

A.

No. The fact that the STD fraudulently concealed was of a less virulent character
and one that would be more correctly described as local, will not bar this ground.
Also, consummation of the marriage is not required for this ground to exist.

Q.

Define habitual drunkenness.

A.

Habitual drunkenness is defined as the persistent habit of becoming intoxicated,


and that the nature and extent of the drunkenness must be such that the person by
frequent indulgence may be said to have a fixed and irresistible habit of
drunkenness, whereby he has lost the power or will to control his appetite for
intoxicating liquor, as where he indulges in the practice of becoming intoxicated
whenever the temptation is presented and the opportunity is offered. (Lewis v.

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Lewis, 235 Iowa 693). However, to be a habitual drunkard, a person does not have
to drink all the time, nor necessarily be incapacitated from pursuing, during the
working hours of the day, ordinary unskilled manual labor (Page v. Page, 43 Wash.
293).
Q.

Why is concealment of habitual drunkenness a ground to sever the marriage


relations?

A.

It is a ground because it renders him unfit for the duties of the marital relation and
disqualifies him from properly rearing and caring for the children born of the
marriage (Lewis v. Lewis, 235 Iowa 693).

Q.

Why is concealment of drug addiction as fraud a ground to sever the marriage


relations?

A.

The deleterious and evil effects resulting from the continued and excessive use of
drugs are well-known, and that they interfere with the happiness of married life,
and produce other effects upon the marriage relation as deplorable. (Gowey v.
Gowey, 191 Mass. 72).

Q.

What would constitute concealment of homosexuality or lesbianism as fraud that


would be a ground for the annulment of marriage?

A.

There must be concealment because homosexuality or lesbianism per se is not a


ground for annulment. Hence, the element of bad faith on the part of the one
making the concealment is essential and must be proven. (Almedor v. RTC, G.R.
No. 179620, August 26, 2008).

Q.

When is consent to a marriage vitiated?

A.

Consent is vitiated when it is obtained through force, intimidation or undue


influence.

Q.

When is there intimidation to vitiate consent?

A.

There is intimidation when one of the contracting parties is compelled by a


reasonable and well-grounded fear of an imminent and grave evil upon his person
or property or upon the person or property of his spouse, descendants, or
ascendants, to give his consent. To determine the degree of intimidation, the age,
sex and condition of the person shall be borne in mind.

Q.

When is incapacity to consummate a ground for annulment?

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A.

Incapacity to consummate denotes the permanent inability on the part of one of the
spouses to perform the complete act of sexual intercourse. It includes all types of
causes for non-consummation, even psychological, which leads to physical inability.
Thus, the provision is not limited to impotence.

Q.

Is a psychogenic cause, which is the reason for the spouses mental block or
disturbance and causing to him being physically incapable of performing the
marriage act, tantamount to incapacity to consummate marriage?

A.

Yes. (Alcazar v. Alcazar, G.R. No. 174451, October 13, 2009)

Q.

Is excessive sensibility of the wife rendering sexual intercourse practically


impossible on account of the pain it must inflict a ground to annul the marriage?

A.

Yes. It is contemplated under the provision of incapacity to consummate marriage


if it is medically and sufficiently proven.

Q.

Is vaginismus contemplated within the meaning of incapacity to consummate the


marriage?

A.

Yes. Vaginismus is an incurable nervous disorder on the part of the wife, which
renders sexual coition impossible.

Q.

Is any type of sickness or refusal to consummate the marriage considered to be


incapacity to consummate a marriage?

A.

No.

Q.

What is required in order that incapacity to consummate the marriage could be


successfully invoked?

A.

The incapacity must be physical. It must exist at the time of the marriage
ceremony. It must continuous and appears to be incurable. Accidental or temporary
impotency is not enough.

Q.

Who has the burden of proving the incapacity of the spouse to consummate the
marriage?

A.

Whoever alleges the incapacity has the burden of proving the same. As a general
rule, incapacity to engage in sexual intercourse cannot be presumed but must be
proven by preponderance of evidence.

Q.

Must the incapacity or impotence be universal?

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A.

No. Hence, it has been said that when impotence is psychological in origin, the
condition may exist only as to the present spouse and not as to others.

Q.

Explain the Rule of Triennial Cohabitation.

A.

There is a presumption of impotence if the situation comes within the preview of


the rule of triennial cohabitation. If the wife remains a virgin for 3 years from the
time the spouses started cohabitating, the husband must show that he was not
impotent during the said period and the burden will be upon him to overcome the
presumption of impotence.

Q.

Is sterility equivalent to impotency?

A.

No, because a sterile person can successfully engage in sexual coition. Sterility does
not imply want of power of copulation.

Q.

If the STD of the spouse is not concealed, can it still be a ground for annulment of
marriage?

A.

Yes, however, in order that it may be successfully invoked, sexually transmissible


disease must be serious and incurable. The STD must still exist at the time of the
marriage ceremony.

Q.

Can there be a ratification of annullable marriage?

A.

Yes. Under the Family Code, ratification is made if the injured party freely
cohabits with the guilty party in the proper situations provided by law, such as lack
of parental consent, insanity, fraud and vitiated consent.

Q.

Can all types of annullable marriage be ratified?

A.

No. If the ground relied upon is either the incurable physical incapacity to
consummate marriage by either party or the affliction of either party with an
incurable sexually-transmissible disease, both existing at the time of the marriage
ceremony, the mere free cohabitation as husband and wife of the parties will not
ratify the annullable marriage.

Q.

May the grounds of incapacity to consummate a marriage and incurable sexually


transmitted disease be barred by prescription?

A.

Yes, if the aggrieved parties do not bring the suit within five years after the
marriage ceremony.

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Art. 47. The action for annulment of marriage must be filed by the
following persons and within the periods indicated herein:
(1) For causes mentioned in number 1 of Article 45 by the party
whose parent or guardian did not give his or her consent,
within five years after attaining the age of twenty-one, or by
the parent or guardian or person having legal charge of the
minor, at any time before such party has reached the age of
twenty-one;
(2) For causes mentioned in number 2 of Article 45, by the same
spouse, who had no knowledge of the other's insanity; or by
any relative or guardian or person having legal charge of the
insane, at any time before the death of either party, or by the
insane spouse during a lucid interval or after regaining
sanity;
(3) For causes mentioned in number 3 of Article 45, by the
injured party, within five years after the discovery of the
fraud;
(4) For causes mentioned in number 4 of Article 45, by the
injured party, within five years from the time the force,
intimidation or undue influence disappeared or ceased;
(5) For causes mentioned in number 5 and 6 of Article 45, by the
injured party, within five years after the marriage. (87a)
Q.

What is the nature of an annulment case?

A.

Annulment cases are actions in rem because they concerned status of the parties,
and the status affects or binds the whole world.

Q.

Which court has jurisdiction of an annulment case?

A.

The proper court depends upon the nationality or domicile of the parties and not
the place of the celebration of the marriage, or locus celebrationis. Hence, when a
Filipino is domiciled in the Philippines, the lower court has jurisdiction to annul his
marriage to a Korean girl contracted by him.

Q.

Summarize the rules on the prescriptive periods and who may file the suit for each
ground of annulment.

A.

GROUND
1. No
Consent

PARTY TO FILE

PRESCRIPTION
PERIOD
Parental- a. Parent or Guardian Anytime before no-consent
having Legal Charge of no- party reaches the age of 21
consent party

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b. No-Consent Party

Within Five Years after


attaining 21
2. Insanity
a. Sane Spouse without At any time before death of
knowledge of insanity
either party
b. Relative, guardian or At any time before death of
person having legal charge either party
of the insane spouse
c. Insane spouse
During lucid interval or
after regaining sanity
3. Fraud
Injured Party
Within Five Years after
discovery of Fraud
4. Vitiated Consent
Injured Party
Within Five Years from time
force, intimidation or undue
influence disappeared or
ceased
5. Incapability to Injured Party
Within Five Years after the
Consummate/
marriage ceremony
Sexually
transmissible
disease
Art. 48. In all cases of annulment or declaration of absolute nullity
of marriage, the Court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the State to take steps to
prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of
judgment. (88a)
Art. 49. During the pendency of the action and in the absence of
adequate provisions in a written agreement between the spouses,
the Court shall provide for the support of the spouses and the
custody and support of 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 to in Title IX. It shall also provide for
appropriate visitation rights of the other parent. (n)
Q.

What governs the procedure for annulment and declaration of nullity cases?

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A.

The procedure is now governed by the Supreme Court En Banc Resolution in A.M.
No. 00-11-01 effective March 15, 2003.

Q.

In annulment proceedings, can the defendant be declared in default as in ordinary


civil actions?

A.

No. The court will order a full-blown hearing of the case where the fiscal shall
appear on behalf of the state.

Q.

What if the court renders a default judgment in an annulment case?

A.

It has held that an erroneous judgment is not a void judgment.

Q.

May an annulment case be dismissed by the court upon motion of the fiscal?

A.

Yes. In the case of Tolentino v. Villanueva, the court issued an order directing the
fiscal to investigate whether or not there is collusion and the petitioner, upon being
subpoenaed by the Fiscal, does not appear claiming that she does not want to
reveal her evidence prematurely to the fiscal.

Q.

Can an annulment suit be terminated by compromise agreement?

A.

No. There is no valid compromise legally possible on the issue of the validity of
marriage. (Mendoza v. CA, 19 SCRA 756).

Q.

Are annulment cases subject to summary proceedings?

A.

No. Summary proceedings are allowed. A full-blown hearing must be undertaken


where the parties are duty-bound to prove their grounds by preponderance of
evidence.

Q.

What is the role of the Fiscal or Solicitor General in annulment and nullity cases?

A.

The fiscal or the Solicitor General is tasked to take necessary steps to prevent
collusion between the parties and to take care that evidence is not
fabricated or
suppressed. He must actively participate. (Republic vs Cuison-Melgar, 486 SCRA
177, 2006)

Q.

What is collusion?

A.

Collusion occurs where, for purposes of getting an annulment or nullity


decree, the parties come up with an agreement making it appear that the
marriage is defective due to the existence of any of the grounds for the

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annulment of the marriage or the declaration of its nullity provided by


law and agreeing to represent such false or non existent cause of action
before the
proper court with the objective of facilitating the issuance of a decree
of
annulment or nullity of marriage. (page 317, no reference)
Q.

Is the failure of the defendant to file an answer or to appeal in court a


conclusive evidence of collusion?

A.

No. (Aquino vs Delizo, 109 Phil 21, 1960)

Q.

Is an agreement between the parties to file an annulment or nullity proceeding a


conclusive evidence of collusion?

A.

No. Even if there is an agreement, collusion will not exist if the grounds
relied
upon for the nullity or annulment truly exist and are not concocted. (page 318, no
reference)

Q.

What will happen to a judge who does not order an investigation for collusion?

A.

He can be subject to administrative sanction. (Corpus vs Garchitorena, 435 SCRA


446, 2004)

Q.

Can an annulment or nullity decree be issued by the court on the basis of


stipulation of facts or confession of judgment?

A.

No, if it is solely based on stipulation of facts or confession of judgment.


However, stipulations of fact or confession of judgment sufficiently
supported or corroborated by other independent substantial evidence to
support the main ground relied upon, an annulment or nullity decree may
be
issued. (Ocampo vs Florenciano, 107 Phil 31, 1960)
Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of
Article 43 and by Article 44 shall also apply in the proper cases to
marriages which are declared ab initio or annulled by final
judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation,
partition and distribution of the properties of the spouses, the
custody and support of the common children, and the delivery of
third presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.

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All creditors of the spouses as well as of the absolute community or


the conjugal partnership shall be notified of the proceedings for
liquidation.
In the partition, the conjugal dwelling and the lot on which it is
situated, shall be adjudicated in accordance with the provisions of
Articles 102 and 129.
Art. 51. In said partition, the value of the presumptive legitimes of
all common children, computed as of the date of the final judgment
of the trial court, shall be delivered in cash, property or sound
securities, unless the parties, by mutual agreement judicially
approved, had already provided for such matters.
The children or their guardian or the trustee of their property may
ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall
in no way prejudice the ultimate successional rights of the children
accruing upon the death of either of both of the parents; but the
value of the properties already received under the decree of
annulment or absolute nullity shall be considered as advances on
their legitime. (n)
Q.

Is the trial courts finding of existence or non-existence of psychological


incapacity binding on the Supreme Court?

A.

Yes, unless it can be sufficiently shown that the trial courts factual findings and
evaluation of the testimonies and the pieces of evidence presented are
clearly
and manifestly erroneous. (Tuason v. Court of Appeals, 256 SCRA
158, 1996)

Q.

What is the meaning of the 1st paragraph in Art 50?

A.

In so far as void marriages are concerned, paragraphs (2), (3), (4) and (5) of Article
43 exceptionally apply ONLY to void subsequent marriages that
occur as a
result of the non observance of Article 40. Specifically, they
apply only to the
subsequent void marriage contracted by a spouse of a prior void
marriage
before the latter is judicially declared void. In this case, the
property shall be
liquidated as if there is a conjugal partnership of gains or an absolute community
of property. In all other cases of a void marriage (except non observance of article
40), co-ownership will govern. (Valdes
v. RTC, 260 SCRA 221, 1996)
But see: Nicdao Carino vs Carino, 351 SCRA 131, 2001.

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Q.

When will the decree of nullity or annulment be issued?

A.

The decision of the court will be final if no motion for reconsideration or appeal is
filed within 15 days from receipt of the parties of the decision.
Subsequently, a Decree of Absolute Nullity of Marriage or Annulment
of
Marriage shall be issued. However, the decree will only be issued after
the
registrations of the Entry of Judgment in the proper local civil registries and of the
approved partition and distribution of properties of the spouses in the proper
registry of deeds and the delivery of the presumptive legitime. (page 330, no
reference)

Q.

What is presumptive legitime?

A.

It is that part of the testators property which he cannot dispose of because the
law has
reserved it for certain heirs who are, therefore, called compulsory
heirs. (Art 886 of the New Civil Code)

Q.

When is the presumptive legitime computed?

A.

It shall be computed as of the date of the final judgment of the trial court.
51 of the Family Code)

Q.

When should legitime be delivered?

A.

(1) Void subsequent marriages resulting from non observance of Article 40 in


relation Articles 52 and 53 of the Family Code. (Valdes vs RTC, 260 SCRA 221,

1996)

(Art

(2) Annulment cases (Article 43 of the Family Code)


Art. 52. The judgment of annulment or of absolute nullity of the
marriage, 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; otherwise, the same shall not affect third persons. (n)
Art. 53. Either of the former spouses may marry again after
compliance with the requirements of the immediately preceding
Article; otherwise, the subsequent marriage shall be null and void.
Art. 54. Children conceived or born before the judgment of
annulment or absolute nullity of the marriage under Article 36 has
become final and executory shall be considered legitimate.

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Children conceived or born of the subsequent marriage under


Article 53 shall likewise be legitimate.
Q.

Is a partial voluntary separation of property agreed upon by the parties via a


compromise agreement duly approved by the court prior to the judicial
declaration of nullity of a marriage valid?

A.

Yes. (Maquilan vs Maquilan, 524 SCRA 166, 2007)

Q.

When will the observance or non-observance of the requirements of liquidation,


partition, distribution and delivery of presumptive legitime
be significant?

A.

It will only be crucially material in determining whether or not the subsequent


marriage is void only if the previous marriage has been judicially
nullified
or
annulled in accordance with law. Hence, it will not be applicable if the first
marriage was terminated by death of one of the spouses and the surviving spouse
remarries. (page 335, no reference)

Q.

Where should the judgment of annulment or judicial decree of nullity be


recorded?

A.

(1) In the local civil registry of the city or municipality where the court that issued
the decision is functioning. (Art 409 of the New Civil Code) AND
(2) In the local civil registry of the city or municipality where the marriage
solemnized. (Section 7 of the Civil Registry Law, Act No. 3753)

was

Q.

Give the rule on the status of children.

A.

As a general rule, children conceived and born inside a valid marriage are
legitimate. Children conceived and born inside an annullable marriage are
legitimate. Children conceived and born outside a valid marriage or inside a void
marriage are illegitimate. However, children conceived and born inside a void
marriage because one of the parties is psychologically incapacitated to perform the
essential martial obligations or because the parties to the
subsequent
marriage have not complied with the mandatory recording and distribution
requirements under Article 52 in relation to Article 53 are legitimate.

Q.

Within what time period could a respondent in a case for declaration of absolute
nullity of void marriages or annulment of voidable marriages file an answer?

A.

It depends on how the summons were served. If the summons were served to the
respondent directly, he must file an answer within fifteen days from said service of

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summons. If the summons were served by publication, he must file his answer
within thirty days from the last issue of publication. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, 8
Q.

How is the respondents answer to a petition for declaration of absolute nullity of


void marriages or annulment of voidable marriages to be verified?

A.

It must be verified by the respondent himself, and not by counsel or attorney-infact. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 8

Q.

What happens when the respondent does not file an answer?

A.

The court shall not declare the respondent in default. However, in such cases, and
where the answer does not tender an issue, the court shall order the public
prosecutor to investigate whether collusion exists between the parties. Supreme
Court En Banc Resolution A. M. 02-11-10-SC, 8

Q.

What happens when the court orders the public prosecutor to investigate whether
collusion exists between the parties to a case for declaration of absolute nullity of
void marriages or annulment of voidable marriages?

A.

Within one month from the receipt of said court order, the public prosecutor will
submit an investigation report stating whether the parties are in collusion or not,
and serve copies thereof on the parties and their respective counsels, if any.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, 9

Q.

What happens when the public prosecutor determines that collusion exists?

A.

He shall state the basis of such finding in his report. The parties shall file their
respective comments on this finding within ten days from receipt of a copy of the
report. The court shall set the report for hearing, and dismiss the case if it finds
that collusion indeed exists. Supreme Court En Banc Resolution A. M. 02-11-10-SC,
9

Q.
A.

What happens when the public prosecutor determines that collusion does not exist?
The court shall set the case for pre-trial, where the public prosecutor will appear for
the State. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 9

Q.

When does pre-trial commence?

A.

On motion or motu proprio, the court shall set the pre-trial after the last pleading
has been served and filed, or upon receipt of the public prosecutors investigation
report stating that collusion does not exist between the parties. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, 11

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Q.

Must there always be pre-trial?

A.

Yes, a pre-trial in such cases is mandatory. Supreme Court En Banc Resolution A.


M. 02-11-10-SC, 11

Q.

What must the notice of pre-trial contain?

A.

(1) Date of the pre-trial conference, (2) Order directing the parties to file their pretrial briefs in such manner that the same be served upon the adverse party at least
three days before the date of pre-trial. Supreme Court En Banc Resolution A. M. 0211-10-SC, 11

Q.

How is the notice of pre-trial to be served?

A.

The notice shall be served separately on the parties and their respective counsels as
well as the public prosecutor. It shall be sent to the respondent even if he fails to
file an answer. In case of summons by publication and the respondent failed to file
an answer, notice of pre-trial will be sent to his last known address. Supreme Court
En Banc Resolution A. M. 02-11-10-SC, 11

Q.

Must the parties appear personally at the pre-trial?

A.

Yes, it shall be their duty to appear personally. Supreme Court En Banc Resolution
A. M. 02-11-10-SC, 11

Q.

What must the pre-trial brief contain?

A.

(1) Statement that the parties are willing to enter into agreements as may be
allowed by law, indicating the desired terms thereof, (2) Concise statement of their
respective claims with applicable laws and authorities, (3) Admitted facts and
proposed stipulations of facts as well as disputed legal and factual issues, (4) All the
evidence to be presented, including expert opinions if any, stating the nature and
purpose thereof, (5) Number and names of witnesses and their affidavits, (6) Such
other matters as the court may require. Supreme Court En Banc Resolution A. M.
02-11-10-SC, 12

Q.

What is the effect of failure to file the pre-trial brief or to comply with the contents
required by law for such?

A.

Such have the same effect as failure to appear at the pre-trial. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, 12

Q.

What is the effect of failure to appear at the pre-trial?

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If the petitioner fails to appear personally, the case will be dismissed until his
counsel or representative appears in court and proves a valid excuse for the nonappearance of the petitioner.
If the respondent filed an answer but fails to appear personally, pre-trial will
proceed and the court will order the public prosecutor to investigate whether the
non-appearance is due to any collusion. The public prosecutor will submit a report
on such investigation within fifteen days from the order. If there is no collusion, the
court will order the public prosecutor to intervene for the State during the trial on
the merits to prevent suppression or fabrication of evidence. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, 13

Q.

May the issues of the case be referred to a mediator?

A.

Yes, the court may refer the case to a mediator at the pre-trial conference, in order
to reach an agreement on matters not prohibited by law. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, 14

Q.

What matters are prohibited by law from becoming the subjects of a compromise?

A.

(1) Civil status of person, (2) Validity of a marriage or a legal separation, (3) Any
ground for legal separation, (4) Future support, (5) Jurisdiction of courts, (6) Future
legitime. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 16

Q.

What happens after pre-trial?

A.

The court shall issue a pre-trial order. The parties have five days from receipt of
the pre-trial order to propose corrections or modifications. Afterwards, the action
shall proceed to trial in the proper cases. Supreme Court En Banc Resolution A. M.
02-11-10-SC, 15

Q.

Must the presiding judge conduct the trial personally?

A.

Yes. Only the reception of evidence related to matters involving the property
relations of the spouses may be delegated to a commissioner. Supreme Court En
Banc Resolution A. M. 02-11-10-SC, 17

Q.

May a judgment on the pleading, summary judgment, or confession of judgment be


allowed?

A.

No. The grounds for declaration of absolute nullity or annulment of the marriage
must be proved. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 17

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Q.

Must the trial be conducted in open court?

A.

Not necessarily. The court may order the exclusion from the courtroom of all
persons, including the press, who do not have a direct interest in the case if it
determines on record that requiring a party to testify in open court would not
enhance the ascertainment of truth; would cause the party psychological harm or
inability to effectively communicate due to embarrassment, fear, or timidity; would
violate the right of a party to privacy; or would be offensive to decency or public
morals. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 17

Q.

How must the court render its decision?

A.

It shall declare in its decision that the decree of absolute nullity or decree of
annulment be issued only after compliance with Articles 50 and 51 of the Family
Code as implemented under the Rules on Liquidation, Partition, and Distribution
of Properties. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 19

Q.

When do liquidation, partition and distribution, custody, support of common


children and delivery of their presumptive legitimes take place?

A.

Upon entry of the judgment granting the petition or, where there is an appeal,
upon the receipt of the entry of judgment of the appellate court granting the
petition the Family Court upon motion of either party shall proceed with the above
actions unless such matters have been adjudicated in previous judicial proceedings.
Supreme Court En Banc Resolution A. M. 02-11-10-SC, 21

Q.

When shall the Decree of Declaration of Absolute Nullity or Annulment of


Marriage be issued?

A.

After (1) registration of the entry of judgment granting the petition in the Civil
Registries where the marriage was celebrated and where the Family Court is
located, (2) registration of the partition and distribution of the properties of the
spouses in the Register of Deeds where the real properties are located, and (3)
delivery of the childrens presumptive legitimes in cash, property, or sound
securities. Supreme Court En Banc Resolution A. M. 02-11-10-SC, 22

Q.

What if a party dies during the course of the proceedings?

A.

(1) If the party dies before the entry of judgment, the court shall order the case
closed and terminated, without prejudice to the settlement of the estate in proper
proceedings in the regular courts. (2) If the party dies after the entry of judgment,
the judgment shall be binding upon the parties and their successors in interest in
the settlement of the estate in the regular courts. Supreme Court En Banc
Resolution A. M. 02-11-10-SC, 24

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Q.

How may the court issue provisional orders and protection orders in petitions for
declaration of absolute nullity of void marriage or for annulment of voidable
marriage?

A.

Motu proprio or upon application under oath of any of the parties, guardian, or
designated custodian, with or without a hearing. Supreme Court En Banc
Resolution A. M. 02-11-12-SC, 1

Q.

When can these order be enforced?

A.

Immediately, with or without a bond. Supreme Court En Banc Resolution A. M. 0211-12-SC, 1

Q.

Where can the support for the spouses be taken from?

A.

In the absence of any agreement between the spouses, support may be taken from
the properties of the absolute community of property or the conjugal partnership.
Supreme Court En Banc Resolution A. M. 02-11-12-SC, 2

Q.

What factors would guide the court in making an award of support to either
spouse?

A.

The court may award support in such amount and for such period as it may deem
just and reasonable based on the standard of the spouses living during the
marriage. It may also consider other relevant factors that the court may deem just
and equitable. Supreme Court En Banc Resolution A. M. 02-11-12-SC, 2

Q.

Where can the support for the common children be taken from?

A.

From the properties of the absolute community or conjugal partnership. Either


parent may be required to give an amount necessary for the support, maintenance
and education of the child. It shall be in proportion to the resources or means of
said spouse and the necessities of the child. Supreme Court En Banc Resolution A.
M. 02-11-12-SC, 3

Q.

What must the court consider in determining the right party to whom custody of
the child is to be awarded?

A.

The courts shall consider the best interests of the child and give paramount
consideration to the material and moral welfare of the child. Supreme Court En
Banc Resolution A. M. 02-11-12-SC, 4

Q.

To whom may the courts award provisional custody?

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A.

The courts may awards provisional custody in the following order of preference: (1)
To both parents jointly, (2) To either parent taking into account all relevant
considerations under the foregoing paragraph, especially the choice of the child over
seven years of age, unless the parent chosen is unfit, (3) To the surviving
grandparent, or if there are several of them, the grandparent chosen by the child
over seven years of age and of sufficient discernment, unless the grandparent is
unfit or disqualified, (4) to the eldest brother or sister over twenty-one years of age,
unless he or she is unfit or disqualified, (5) To the childs actual custodian over
twenty-one yeas of age, unless unfit or disqualified, (6) To any other person deemed
by the court suitable to provide proper care and guidance for the child. Supreme
Court En Banc Resolution A. M. 02-11-12-SC, 4

Q.

What is granted to the parent who is not awarded provisional custody?

A.

Appropriate visitation rights, provided he or she is not unfit or disqualified.


Supreme Court En Banc Resolution A. M. 02-11-12-SC, 5

Q.

What is a Hold Departure Order?

A.

It is an order issued ex-parte by the court motu proprio or upon application under
oath, addressed to the Bureau of Immigration and Deportation, directing it not to
allow the departure of the child from the Philippines without permission of the
court. Supreme Court En Banc Resolution A. M. 02-11-12-SC, 6

TITLE II
LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed on any of the
following grounds:
(1) Repeated physical violence or grossly abusive conduct
directed against the petitioner, a common child, or a child
of the petitioner;
(2) Physical violence or moral pressure to compel the
petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner,
a common child, or a child of the petitioner, to engage in
prostitution, or connivance in such corruption or
inducement;
(4) Final
judgment
sentencing
the
respondent
to
imprisonment of more than six years, even if pardoned;

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(5) Drug addiction or habitual alcoholism of the respondent;


(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous
marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the
petitioner; or
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by
nature or by adoption. (9a)
Q.

Does a decree of legal separation or relative divorce dissolve the marriage?

A.

No, it does not affect the marital status, there being no severance of the vinculum
(Laperal v. Republic, 6 SCRA 357). A legal separation decree involves nothing
more than a bed-and-board separation of the spouses (Lapuz v. Eufemio, 43 SCRA
177).

Q.

Are the grounds enumerated in Article 55 for legal separation exclusive?

A.

Yes. No other grounds may be invoked by any party other than those stated by
law. This is in furtherance of the policy of the State to foster unity in and preserve
the marital relation as the same is essential to the public welfare.

Q.

May repeated physical injury or grossly abusive conduct be invoked as a ground for
legal separation when inflicted upon the child of the respondent or the guilty
spouse?

A.

No. It is only a valid ground when inflicted upon the petitioner, a common child, or
a child of the petitioner. The law does not give a cause of action to the petitioner to
file a case for legal separation on the ground that the respondent-spouse repeatedly
inflicts injury upon his or her own child with another person. However, such
repeated physical violence may be a cause to suspend or terminate the parental
authority of the respondent upon his or her own minor child with another person
pursuant to Article 231(1) of the Family Code.

Q.

What is the determinative factor of physical violence under this ground?

A.

The frequency of the act, and not the severity is the determinative factor. It must
be committed repeatedly and with bad faith or malice.

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Q.

Could acts not done repeatedly warrant a decree of legal separation under this
ground?

A.

Yes. Even if the act is not repeated or does not involve physical violence, such act
may nevertheless constitute grossly abusive conduct under this ground. Grossly
abusive conduct has no exact definition and, therefore, is determined on a case-tocase basis.

Q.

Differentiate physical violence under Article 55(1) from physical violence under
Article 55(2).

A.

Physical violence under Article 55(1) is for any purpose, so that no matter how
insignificant the purpose, if there is repeated physical violence, there is a ground for
legal separation. Under Article 55(2), the physical violence is related to political
and religious conviction, and need not be repeated. One incident of physical
violence or moral pressure to compel a change in political or religious affiliation is
sufficient grounds for legal separation under Article 55(2).

Q.

How must the ground of corruption or inducement to engage in prostitution be


interpreted?

A.

The children under this ground may or may not be emancipated. The immoral or
corrupt act referred to is prostitution only. It cannot be any other immoral or
corrupt act. To stretch the import of the article otherwise would not serve the
policy of the law of discouraging legal separation.

Q.

Must the respondent have successfully corrupted or induced the petitioner, a


common child, or a child of the petitioner to engage in prostitution or connive in
such corruption or inducement?

A.

No, a mere attempt is enough to be a ground for legal separation.

Q.

Under the ground of final judgment involving more than six years of imprisonment,
against whom must the offense for which the spouse is sentenced to imprisonment
be committed?

A.

Anybody. It is not necessary that said offense be committed against the other
spouse, their common children, or the petitioners children.

Q.

Distinguish drug addiction, habitual alcoholism, lesbianism and homosexuality as


a ground for legal separation from the same as a ground for annulment.

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A.

In annulment, such factors are instances of fraud which must exist at the time of
the celebration of marriage. In legal separation, such grounds can exist even after
the marriage ceremony.

Q.

What is the effect of committing bigamy abroad?

A.

So long as there is a second bigamous marriage, wherever celebrated, a legal


separation decree may issue. However, the guilty party cannot be criminally
prosecuted in the Philippines for such act committed abroad as our penal statutes
are penal in nature.

Q.

Must sexual infidelity or perversion amount to concubinage in order to be


considered a ground for legal separation?

A.

No. A husbands single sexual act of sexual intercourse with a woman other than
his wife may warrant the issuance of a decree of legal separation. This is true even
if the husband and the woman did not commit concubinage by: (a) maintaining a
mistress in the conjugal home, (b) sexual intercourse with another woman under
scandalous circumstances, and (c) cohabiting with her in any place.

Q.

Would sexual intercourse with a person other than ones spouse after a divorce is
obtained abroad still constitute a ground for legal separation?

A.

Yes. It has been held that a Filipina who obtains an absolute divorce abroad and
subsequently marries a foreigner and cohabits with the same has technically
committed intercourse with a person other than her husband, considering that
the divorce obtained abroad is not recognized in the Philippines and her subsequent
marriage therefore is bigamous. (Tenchavez v. Escano, 15 SCRA 355; Manila
Surety & Fidelity Co., Inc. v. Teodoro, 20 SCRA 463)

Q.

Against whom must the ground of sexual perversion be committed?

A.

Sexual perversion includes engaging in such behavior not only with third persons
but also with the spouse. (Minutes of the 156th Joint Meeting of the Civil Code and
Family Law committees held on September 27, 1986, page 12)

Q.

What is the effect of condonation of sexual infidelity or perversion?

A.

The party who condoned such act is estopped from raising it as a ground for legal
separation because condonation would be tantamount to consent. (Minutes of the
156th Joint Meeting of the Civil Code and Family Law committees held on
September 27, 1986, page 12)

Q.

Are all attempts on the life of the spouse grounds for legal separation?

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A.

No. The attempt on the life of the spouse must proceed from an evil design and not
from any justifiable cause like self-defense, or from the fact that the spouse caught
the other in flagrante delicto having carnal knowledge with another man or
woman.

Q.

Must the spouse who made an attempt on the life of the other be first convicted
before legal separation can take place?

A.

No. No previous criminal conviction is required for the legal separation case to
prosper. The criminal attempt may be proven by preponderance of evidence in the
case for legal separation.

Q.

What is required for unjustified abandonment to be a valid ground for legal


separation?

A.

The abandonment or desertion must be willful. The act is willful when there is a
design to forsake the other spouse intentionally, or without cause and therefore,
break up the marital union; deliberate intent to cease living with the other spouse;
abnegation of all duties of the marriage relation, not to return. Mere severance of
the relation is not sufficient. There must be a wrongful intent to desert, continued
for the statutory period. (Tipton v. Tipton, 169 Ia. 182, 151 N.W. 90)

Q.

Characterize the abandonment contemplated by this ground for legal separation.

A.

It must be an abandonment without justifiable cause. Thus, in a case where the


wife left the conjugal abode because she was being battered by the husband, the
Supreme Court ruled that the act of the wife was for a justifiable cause and
therefore cannot be a ground for legal separation (Ong v. Ong, 505 SCRA 76).
Physical separation alone is not the full meaning of the term abandonment, if the
wife or husband, despite his or her voluntary departure from the society of his or
her spouse, neither neglects the management of the conjugal partnership nor
ceases to give support to his wife or her husband (Dela Cruz v. Dela Cruz, 22 SCRA
333). There must be absolute cessation of marital relations, duties, and rights, with
the intention of perpetual separation (Partosa-Jo v. Court of Appeals, 216 SCRA
692). The act of separation, and the continued intent to remain separate, must be
wrongful in the sense that there is no excuse for the spouse that separated
(Williamson v. Williamson, 183 Ky. 435, 209 S.W. 503, 3 ALR 799).

Q.

What if both spouses agree to the separation contemplated by this ground?

A.

A separation where both parties willingly concur is not, in any sense of the word, a
willful desertion of one by the other (Smythe v. Smyth, 80 Ore. 150, 149 Pac. 516).

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Q.

How much time must pass before a spouse can be said to have abandoned the
other?

A.

A spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without intention of returning. The spouse who left the conjugal
dwelling for a period of three months or has failed within the same period to give
any information as to his or her whereabouts shall be prima facie presumed to have
no intention of returning to the conjugal dwelling. (Articles 101 and 128 of the
Family Code)
Art. 56. The petition for legal separation shall be denied on any of
the following grounds:
(1) Where the aggrieved party has condoned the offense or act
complained of;
(2) Where the aggrieved party has consented to the commission of
the offense or act complained of;
(3) Where there is connivance between the parties in the
commission of the offense or act constituting the ground for
legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of
legal separation; or
(6) Where the action is barred by prescription. (100a)
Art. 57. An action for legal separation shall be filed within five
years from the time of the occurrence of the cause. (102)

Q.

What is condonation?

A.

Condonation is the act of forgiving the offense after its commission. However,
condonation implies a condition of future good behavior by the offending spouse.
Subsequent violation of this condition nullifies the condonation and revives the
original offense (Ann. Cas. 1918A 657 note; Brown v. Brown, 103 Kan. 53, 172 Pac.
1005, LRA 1918F 1033 and note).

Q.

How is condonation manifested?

A.

It has been held that the act of giving money to an erring wife and the fact that no
action was taken against her in the courts of justice are sufficient to establish
forgiveness amounting to condonation, for condonation is the forgiveness of one
othe married parties of an offense which he knows the other has committed against
the other. Pardon or condonation does not require sexual intercourse, and it may
be express or implied (Almacen v. Baltazar, 103 Phil. 1147).

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Q.

When is there consent?

A.

There is consent when either of the spouses agreed to or did not object, despite full
knowledge, to the act giving rise to a ground for legal separation, before such act
was in fact committed. Consent may also be deduced from the acts of the spouses.

Q.

What is connivance?

A.

Connivance denotes direction, influence, personal exertion, or other action with


knowledge and belief that such action would produce certain results and which
results are produced (Cohen, Divorce and Alimony in North Carolina, 59, IV, p. 98).

Q.

What is the doctrine enunciated in the case of Witherspoon v. Witherspoon, 108 Pa.
Super. 309, 64 A. 842, 84e)?

A.

Where a husband employed agents to induce, persuade and coerce his wife into
participating in illicit sexual activities, this act of the husband can be considered as
active connivance. When a husband lays a lure for his wife, either acting in person
or through an agent, his will necessarily concurs in her act.

Q.

Why is recrimination or equal guilt a ground for denying legal separation?

A.

The reason for this rule lies in the equitable maxim that he who comes into equity
must come with clean hands (Ann. Cas. 1917A 178 note). When two persons acted
in bad faith, they should be considered as having acted in good faith. They are in
pari delicto. Hence, the plaintiff-spouse cannot invoke the guilt of the other if such
plaintiff-spouse is guilty for giving grounds for legal separation.

Q.

Distinguish collusion from connivance.

A.

Collusion is a corrupt agreement, while connivance is a corrupt consenting. To


constitute collusion, there must be an agreement between husband and wife
looking to the procuring of a divorce (2 ALR 701 note). It means there is an
agreement between husband and wife for one of the to commit, or to be represented
in court as having committed, a matrimonial offense, or to suppress evidence of a
valid defense, for the purpose of enabling the other to obtain a divorce (Griffith v.
Griffith, 69 N.J. Eq. 689, 60 Atl. 1099; Sandoz v. Sandoz, 107 Ore. 282, 214 Pas.
590)

Q.

What is the prescriptive period of legal separation?

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A.

An action for legal separation must be filed within 5 years from the occurrence of
the cause. After the lapse of this period, the legal separation case can no longer be
filed.

Q.

Is the time of discovery material in counting the prescriptive period?

A.

No. Time of discovery is not material.


Art. 58. An action for legal separation shall in no case be tried
before six months shall have elapsed since the filing of the
petition. (103)
Art. 59. No legal separation may be decreed unless the Court has
taken steps toward the reconciliation of the spouses and is fully
satisfied, despite such efforts, that reconciliation is highly
improbable. (n)
Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or
suppressed. (101a)
Art. 61. After the filing of the petition for legal separation, the
spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the
spouses, shall designate either of them or a third person to
administer the absolute community or conjugal partnership
property. The administrator appointed by the court shall have the
same powers and duties as those of a guardian under the Rules of
Court. (104a)
Art. 62. During the pendency of the action for legal separation, the
provisions of Article 49 shall likewise apply to the support of the
spouses and the custody and support of the common
children. (105a)

Q.

What is the procedure in filing a complaint for legal separation?

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(1) Upon filing of the complaint, the defendant shall be required to answer within
15 days from receipt of the summons and a copy of the petition. If the defending
party fails to answer, he or she cannot be defaulted and the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the state in order to see to it that
the evidence submitted is not fabricated.
(2) Whether or not the defendant files an answer to the complaint, no hearing on
the merits shall be set by the courts for 6 months.
(3) The court should take steps toward the reconciliation of the spouses and should
be satisfied that despite such efforts, reconciliation is highly improbable.
(4) Proof by preponderance of evidence is required to substantiate the ground for
legal separation. The material facts alleged in the complaint must be proved.
(5) Judgment shall be issued by the judge, either granting the legal separation or
denying the same,

Q.

If the party answers, is the fiscal still required to be present during trial?

A.

Yes. To make sure that there is no collusion and the evidence presented is not
fabricated. However, if the legal separation case is vehemently opposed, it is clear
that there is no collusion. In these cases, the non-intervention of the prosecutingattorney to assure lack of collusion between the contending parties is not fatal to
the validity of the proceedings in court especially when it was not shown that the
evidence was suppressed or fabricated by any of the parties. (Tuason v. Court of
Appeals, 25 SCRA 158).

Q.

What is the purpose of the 6-month cooling off period?

A.

This 6-month period is designed to give the parties enough time to further
contemplate their positions with the end in view of attaining reconciliation between
them.

Q.

What is the exception to the 6-month cooling off period?

A.

When the ground for legal separation involves violence against woman or the child
(Sec. 19 of RA 9262).

Q.

What is the consequence for non-observance of the 6-month cooling-off period?

A.

It is a ground to set aside a decision granting legal separation (Pacete v. Carriaga,


49 SCAD 673).

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Q.

What can be litigated during the 6-month cooling-off period?

A.

Any other incident such as the determination of the custody of the children,
alimony and support pendnte lite may be heard inside the 6-month cooling-off
period. S motion to dismiss during the 6-month period may also be filed if there are
grounds to do so. What is prevented from being heard in this 6-month period is the
hearing on the merits with respect to the validity or invalidity of the ground for
legal separation.

Q.

What is required to substantiate the legal separation case?

A.

Proof by preponderant of evidence is required to substantiate the ground for legal


separation (Gandionco v. Pearanda, 155 SCRA 725). In actions for legal
separation, the material facts alleged in the complaint shall always be proved (Sec.
1, Rule 34 of the 1997 Rules of Civil Procedure).

Q.

Who shall manage the properties during the legal separation suit?

A.

There should be a written agreement between the spouses as to who shall manage
the properties. In the absence of a written agreement between the spouses, the
court shall designate either of the spouses or a third person to administer the
absolute community or conjugal partnership property.

Q.

What are the powers and duties of a court appointed administrator?

A.

He or she has the same powers and duties as that of a guardian under the Rules of
Court.

Q.

What is the effect of death of the plaintiff before the final decree in an action for
legal separation?

A.

The death of one of the party to the action causes the death of the action itself (actio
personalis moritur cum persona).
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each
other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall
be dissolved and liquidated but the offending spouse shall
have no right to any share of the net profits earned by the
absolute community or the conjugal partnership, which

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shall be forfeited in accordance with the provisions of


Article 43(2);
(3) The custody of the minor children shall be awarded to the
innocent spouse, subject to the provisions of Article 213 of
this Code; and
(4) The offending spouse shall be disqualified from inheriting
from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse
made in the will of the innocent spouse shall be revoked
by operation of law. (106a)
Q.

What are the effects of a decree of legal separation?

A.

(a) The spouses shall be entitled to live separately from each other, but the
marriage bond shall not be severed
(b) The absolute community or the conjugal partnership shall be dissolve and
liquidated but the offending spouse shall have no right to any share of the net
profits earned by the absolute community or the conjugal partnership, which shall
be forfeited in accordance with the provisions of Article 43(2)
(c) The custody of the minor children shall be awarded to the innocent spouse,
subject to the provision of Article 213 of the Family Code; and
(d) The offending spouse shall be disqualified from inheriting form the innocent
spouse by intestate succession, Moreover, provisions in favor of the offending
spouse in the will of the innocent spouse shall be revoked by operation of law.

Q.

When will the decree of legal separation be deemed as final?

A.

When the decree is itself is issued, the finality of the separation is complete after
the lapse of the period to appeal the decision to a higher court even if the effects,
such as the liquidation of the property, have not yet been commenced nor
terminated.

Q.

Is the marriage bond severed by a decree of legal separation?

A.

No. The spouses are only entitled to live separately from each other but the
marriage bond is not severed. They are still married to each other. Thus, a spouse
can still be held criminally liable for bigamy, concubinage or adultery of he or she
commits the act.

Q.

The share of the offending spouse shall be forfeited in whose favor?

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A.

His share shall be forfeited in favor of the common children or, if there be none, the
children of the guilty spouse by a previous marriage or, I default of children, the
innocent spouse.

Q.

Who will have custody of minor children?

A.

The innocent spouse shall be awarded the custody of the minor children. However,
in all matters relating to the custody of the child, the paramount interest of the
child shall be the standard. Hence, the court may even award the custody of the
child to a third person of the court believes that both spouses are not fit to take care
of the child.

Q.

What is the effect of legal separation in testate or intestate succession?

A.

The offending spouse is disqualified from inheriting from the innocent spouse by
intestate succession. Moreover, the provisions in favor of the offending spouse made
in the will of the innocent spouse shall be revoked by operation of law.
Art. 64. After the finality of the decree of legal separation, the
innocent spouse may revoke the donations made by him or by her
in favor of the offending spouse, as well as the designation of the
latter as beneficiary in any insurance policy, even if such
designation be stipulated as irrevocable. The revocation of the
donations shall be recorded in the registries of property in the
places where the properties are located. Alienations, liens and
encumbrances registered in good faith before the recording of the
complaint for revocation in the registries of property shall be
respected. The revocation of or change in the designation of the
insurance beneficiary shall take effect upon written notification
thereof to the insured.
The action to revoke the donation under this Article must be
brought within five years from the time the decree of legal
separation become final. (107a)

Q.

In case of legal separation case, what happens to donations and insurance in the
name of the offending spouse?

A.

The law gives the option to the innocent party whether or not he or she will revoke
the donation or the designation as beneficiary of the guilty party in an insurance.

Q.

How to revoke a donation?

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A.

The innocent spouse must file an action for revocation within 5 years from the time
the decree of legal separation has become final.

Q.

What if the donation is void?

A.

The right to bring an action to declare the nullity of the donation does not prescribe.

Q.

When will the revocation take effect?

A.

From the deliberations of the Code, the revocation of, or change in, the designation
of the insurance beneficiary shall take effect upon written notification thereof to the
insurer and not to the insured as provided for in the law. There is a discrepancy
between the final version of the provision and the one signed by the President into
law.
Art. 65. If the spouses should reconcile, a corresponding joint
manifestation under oath duly signed by them shall be filed with
the court in the same proceeding for legal separation. (n)
Art. 66. The reconciliation referred to in the preceding Articles
shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall
thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but
the separation of property and any forfeiture of the share
of the guilty spouse already effected shall subsist, unless
the spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the
proper civil registries. (108a)
Art. 67. The agreement to revive the former property regime
referred to in the preceding Article shall be executed under oath
and shall specify:
(1) The properties to be contributed anew to the restored
regime;
(2) Those to be retained as separated properties of each spouse;
and
(3) The names of all their known creditors, their addresses and
the amounts owing to each.
The agreement of revival and the motion for its approval shall be
filed with the court in the same proceeding for legal separation,
with copies of both furnished to the creditors named therein. After

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due hearing, the court shall, in its order, take measure to protect
the interest of creditors and such order shall be recorded in the
proper registries of properties.
The recording of the ordering in the registries of property shall not
prejudice any creditor not listed or not notified, unless the debtorspouse has sufficient separate properties to satisfy the creditor's
claim. (195a, 108a)
Q.

What are the effects of reconciliation?

A.

(1) The legal separation proceedings, if still pending, shall thereby be terminated in
whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of
property and any forfeiture of the share of the guilty spouse already effected shall
subsist, unless the spouses agree to revive their former property regime.
The order containing the termination of the case or the setting aide of the decree, as
the case may be, shall be recorded in the proper civil registries.

Q.

What shall the agreement to revive the property regime specify?

A.

(1) The properties to be contributed anew to the restored regime


(2) Those to be retained as separate properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing
to each.

Q.

How should the parties make known their reconciliation?

A.

The spouses should file a joint manifestation of reconciliation in court.

Q.

What is the effect of reconciliation to the separation of properties?

A.

The separation of properties shall subsist. However, the parties can enter into an
agreement, which should be approved by the court, reviving the previous property
regime. The agreement shall contain a list of which properties shall remain
separate and which properties shall be contributed to the revived property regime.

Q.

What is the effect of reconciliation with the creditors of the spouses?

A.

The agreement reviving the previous property regime shall contain the names and
addresses of the creditors and the amounts of the credit. The creditors must be

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furnished the motion seeking the approval of the agreement. After due hearing, the
court shall, in its order, take measures to protect the interest of creditors and such
order shall be recorded in the proper registry of property. The recording of the order
in the registries of property shall not prejudice any creditor any creditor not listed
or not notified, unless the debtor-spouse has sufficient separate properties to satisfy
the creditors claim.
Q.

May the parties adopt a different property regime after reconciliation?

A.

Yes. The new rules promulgated by the Supreme Court specifically allow the
adoption of another regime of property relations different from that which they had
prior to the filing of the petition for legal separation.

Q.

What is the effect of reconciliation with the disinheritance of the offending spouse?

A.

The innocent spouse has an option to again reinstitute the provision in a will
previously made to the guilty spouse, but which was revoked by operation of law by
the issuance of the decree of legal separation.

TITLE III
RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
Art. 68. The husband and wife are obliged to live together,
observe mutual love, respect and fidelity, and render mutual
help and support. (109a)
Q.

What is role does procreation play in marriage?

A.

Procreation is an essential marital obligation, considering that such obligation


springs from the universal principle that procreation of children through sexual
cooperation is the basic end of marriage (Chi Ming Tsoi v. CA).

Q.

When may a court compel a husband and a wife to comply with obligations of
marriage?

A.

A court cannot compel the spouses to live together, observe mutual love, respect
and fidelity. However, as an exception, the court may compel the spouses to comply
with their obligation for support (Ramirez-Cuaderno v. Cuaderno; Potenciano v.
CA). Because marital duties and obligations are highly personal, spouses may not
be compelled to render them.

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Q.

May a court compel a wife to render domestic assistance and conjugal


companionship?

A.

No. Jurisprudence has held that a wifes domestic assistance and conjugal
companionship are purely personal and voluntary acts, which neither the spouses
may be compelled to render (Arroyo v. Arroyo).

Q.

May damages be awarded in case of a breach or a failure to comply with marital


obligations?

A.

No (Ty v. CA).

Q.
A.

What then is the remedy of the innocent spouse against the guilty spouse?
The guilty spouse may be held liable under the Articles 19, 20 or 21 of the Civil
Code or the abuse of right doctrine, if he or she acted in bad faith in refusing to
comply with the marital obligations and if the property regime is separation of
property.

Q.

What are some examples of instances when damages were awarded in relation to
marital obligations?

A.

1. The desertion and securing of an invalid divorce decree of one consort entitled the
other to damages and attorneys fees (Tenchavez v. Escano);
2. A person who deprives a spouse of the consortium or services of the other spouse
can be held liable for damages, but this must first be fully proven (Lilius v. Manila
Railroad Company).

Q.

Can a husband commit rape against his wife?

A.

Yes (Article 266-A of the Revised Penal Code). But the subsequent forgiveness by
the wife as the offended party shall extinguish the criminal action or the penalty.

Q.

What is the exception to this rule?

A.

If the marriage is void ab initio, the crime shall not be extinguished nor shall the
penalty be abated.
Art. 69. The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling
reasons for the exemption.

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However, such exemption shall not apply if the same is not


compatible with the solidarity of the family. (110a)
Q.

Define domicile.

A.

The domicile of natural persons is the place of their habitual residence. It is the
place where the parties intend to have their permanent residence with the
intention of always returning even if they have left it for some time. Thus, the
spouses can have only one domicile but many residences.

Q.

What is the rule on domicile regarding minors?

A.

A minor follows the domicile of his or her parents.

Q.

What is the nature of the judicial proceedings described in paragraph 1 and 2 of


this Article?

A.

The judicial proceedings shall be summary in nature.


Art. 70. The spouses are jointly responsible for the support of the
family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the
absence thereof, from the income or fruits of their separate
properties. In case of insufficiency or absence of said income or
fruits, such obligations shall be satisfied from the separate
properties. (111a)
Art. 71. The management of the household shall be the right and
the duty of both spouses. The expenses for such management shall
be paid in accordance with the provisions of Article 70. (115a)
Art. 72. When one of the spouses neglects his or her duties to the
conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the aggrieved party
may apply to the court for relief. (116a)

Q.

Who is responsible for the management of the household?

A.

It shall be the right and duty of both the spouses regardless of their property
regime (e.g. if the family house is separately owned by one of the spouses, the other
spouse still has the right and duty relative to the management of the household).

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Q.

What is the remedy of the aggrieved spouse if the other spouse neglects his or her
duties to the conjugal union or commits acts which tend to bring danger, dishonor
or injury to the other or to the family?

A.

The aggrieved spouse may apply to court for relief, which includes:
1.
Legal separation case;
2.
Annulment of marriage case;
3.
Petition for receivership;
4.
Petition for judicial separation of property; or
5.
Petition for authority to be the sole administrator of the community property
or the conjugal partnership.
Art. 73. Either spouse may exercise any legitimate profession,
occupation, business or activity without the consent of the other.
The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall decide whether or not:
(11) The objection is proper, and
(12) Benefit has occurred to the family prior to the
objection or thereafter. If the benefit accrued prior to the
objection, the resulting obligation shall be enforced
against the separate property of the spouse who has not
obtained consent.
The foregoing provisions shall not prejudice the rights of creditors
who acted in good faith. (117a)

Q.

What is the regarding the exercise of the husband and the wife of a business or
profession?

A.

The general rule is that the law does not require a spouse to obtain prior consent
from the other before entering into any legitimate profession or activity.
The exception is when one spouse objects to the occupation of the other on valid
serious and moral grounds, in which case the court may decide on the objection in a
summary proceeding.

Q.

What are chargeable against the absolute community property or the conjugal
partnership of gains?

A.

Generally, the following are chargeable:


1.
The exercise of a legitimate profession, occupation, business or activity is
presumed to redound to the benefit of the family, except if is involves an
isolated transaction (proof showing a direct benefit to the family must be
presented);

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Obligations incurred by the spouse in the exercise of his or her legitimate


profession, occupation, business or family business are presumed to
redound to the benefit of the family;
Debts and obligations of whatever nature and regardless of the time they
were incurred, whether before or after the marriage ceremony, and redound
to the benefit of the family.

Q.

What is the exception to this rule?

A.

In case the profession is seriously invalid and immoral, the separate property of the
erring spouse shall be liable, even if benefits accrued in favor of the family.
However, for this to apply the innocent spouse must have no knowledge of the other
spouses engagement in an immoral activity such that he could not have interposed
any objection; otherwise, the innocent spouse would be deemed to have agreed with
the other spouses immoral endeavors.

TITLE IV
PROPERTY RELATIONS BETWEEN
HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between husband and wife shall
be governed in the following order:
(1) By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
Art. 75. The future spouses may, in the marriage settlements, agree
upon the regime of absolute community, conjugal partnership of
gains, complete separation of property, or any other regime. In the
absence of a marriage settlement, or when the regime agreed upon
is void, the system of absolute community of property as
established in this Code shall govern. (119a)
Art. 76. In order that any modification in the marriage settlements
may be valid, it must be made before the celebration of the
marriage, subject to the provisions of Articles 66, 67, 128, 135 and
136. (121)

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General Provisions
Art. 77. The marriage settlements and any modification thereof
shall be in writing, signed by the parties and executed before the
celebration of the marriage. They shall not prejudice third persons
unless they are registered in the local civil registry where the
marriage contract is recorded as well as in the proper registries of
properties. (122a)
Q.

What are the requisites for a valid marriage settlement?

A.

The requisites for a valid marriage settlement are the following:


1.
Must be in writing;
2.
Must be signed by the parties;
3.
Made prior to the marriage ceremony;
4.
Parties may agree on any arrangement in their marriage settlement,
provided it is not contrary to law and public policy; and
5.
Must be effective at the moment of the marriage ceremony.
That the marriage settlement be registered in the local civil registrar is not
required for its validity, but only to bind third parties.

Q.

What are examples of prohibited stipulations in a marriage settlement?

A.

The following are invalid:


1.
A stipulation that the absolute community property or conjugal partnership
of gains will start at a time other than the precise moment of the
celebration of marriage;
2.
A stipulation that the spouses can make substantial donations to each other
during the marriage;
3.
In case a marriage has been terminated by the death of one spouse and
there has been no liquidation of the properties of the previous marriage, the
surviving spouse, if he or she decides to remarry, cannot executed a
marriage settlement providing for a regime other than complete separation
of property regime.

Q.

May parties design their own property regime?

A.

Yes, provided it is not in violation of any law.

Q.

When must modifications to marriage settlements be made?

A.

Generally, these must be made prior to the marriage ceremony. Exceptionally,


modifications may be made after the marriage ceremony, provided that:
1.
There is judicial approval; and
2.
It involves the following modifications:

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General Provisions
a. Revival of the former property regime after a legal separation
reconciliation can be made only through a court order recorded in the
proper civil registries (Arts. 66 and 67);
b. Abandonment or failure to comply with marital obligations, the court
may issue a decree of judicial separation of property upon petition by the
aggrieved spouse (Art. 128);
c. Provides sufficient causes for judicial separation of property (Art. 135); or
d. Voluntary separation and dissolution of absolute community property or
conjugal partnership of gains (Art. 136).
Q.

What is a custom?

A.

It is a rule of conduct formed by the repetition of acts uniformly observed as a social


result, legally binding and obligatory.

Q.

What property regime will apply in case where the parties stipulate in their
marriage settlement that local customs shall apply, or that absolute community
property shall not govern their property relations but fail to stipulate what
property regime shall be applied?

A.

The local custom shall be applied.


Art. 78. A minor who according to law may contract marriage may
also execute his or her marriage settlements, but they shall be valid
only if the persons designated in Article 14 to give consent to the
marriage are made parties to the agreement, subject to the
provisions of Title IX of this Code. (120a)
Art. 79. For the validity of any marriage settlement executed by a
person upon whom a sentence of civil interdiction has been
pronounced or who is subject to any other disability, it shall be
indispensable for the guardian appointed by a competent court to
be made a party thereto. (123a)

Q.

What is the rule now in relation to Article 78?

A.

Article 78 was impliedly repealed when the age of majority was lowered to 18.
Now, no minor may contract a valid marriage.

Q.

What is civil interdiction?

A.

It deprives the offender during the time of his sentence of:


1.
Rights of parental authority;

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General Provisions
2.
3.
4.

Guardianship, either as to the person or property of any ward;


Right to manage his property; and
Right to dispose of such property by any conveyance inter vivo.

Art. 80. In the absence of a contrary stipulation in a marriage


settlement, the property relations of the spouses shall be governed
by Philippine laws, regardless of the place of the celebration of the
marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting
property not situated in the Philippines and executed in
the country where the property is located; and
(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. (124a)
Q.

What is the rule when it comes to property relations of the spouses?

A.

The general rule is the property relations of the spouses will be governed by their
agreement in the marriage settlement, provided that it must not be contrary to law
or public policy and that it must be within the limits provided in the Family Code.

Q.

What if there is no agreement between the spouses?

A.

In the absence of any agreement, property relations will be governed by Philippine


laws if the parties are both Filipinos, even is they married abroad or reside abroad.
This is because the basis is the nationality rule.
However, this rule is not applicable, and thus other laws shall govern, in the
following cases:
a. where both spouse are foreigners; or
b. involving the extrinsic validity of a contract when the property is
executed abroad, whether the contract is executed in the Philippines
or abroad.
Art. 81. Everything stipulated in the settlements or contracts
referred to in the preceding articles in consideration of a future
marriage, including donations between the prospective spouses
made therein, shall be rendered void if the marriage does not take
place. However, stipulations that do not depend upon the
celebration of the marriages shall be valid. (125a)

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General Provisions
Q.

What is the effect of a marriage settlement if the marriage does not take place?

A.

Generally, the marriage settlement is rendered void because the consideration of


the marriage settlement is the marriage itself.

Q.
A.

Are there cases when the provisions in a marriage settlement are separable?
Yes, for instance:
1.
Provisions which invalid but do not affect the rest of the provisions
stipulated in the marriage settlement will be rendered ineffectual, the rest
will continue to remain enforced; or
2.
Stipulations which do not depend upon the celebration of marriage shall be
valid (e.g. provision to suppose the common children of the contracting
parties).
Chapter 2. Donations by Reason of Marriage
Art. 82. Donations by reason of marriage are those which are made
before its celebration, in consideration of the same, and in favor of
one or both of the future spouses. (126)
Art. 83. These donations are governed by the rules on ordinary
donations established in Title III of Book III of the Civil Code,
insofar as they are not modified by the following articles. (127a)
Art. 84. If the future spouses agree upon a regime other than the
absolute community of property, they cannot donate to each other
in their marriage settlements more than one-fifth of their present
property. Any excess shall be considered void.

Q.

What is a donation propter nuptias?

A.

Donations by reason of marriage, or donation propter nuptias, are those which are
made before its celebration, in consideration of the same, and in favor of one or both
of the future spouses. (article 82, FC)

Q.

What is the consideration for donations propter nuptias?

A.

Donations propter nuptias are without onerous consideration, the marriage being
merely the occasion or motive for the donation, not its causa. Being liberalities,
they remain subject to reduction for inofficiousness upon the donors death, if they
should infringe the legitime of the forced heir (Mateo v. Lagua, 29 SCRA 864) Thus,

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Donations by Reason of Marriage


it has been held that a deed of donation executed before the marriage by one of the
spouses, which, among other things, provides that the marriage would have to be
childless, that one of the spouses would have to die before the donation would
operate, and that the donation was made not in favor of the wife but rather in favor
of those who acted as her parents and raised her from girlhood to womanhood in
the absence of her father, cannot be regarded as one made in consideration of
marriage. (Serrano vs. Solomon, 105 Phil. 998)
Q.

What are the requisites of a valid donation?

A.

The following are the requisites of a valid donation:


1. Must be made prior to the marriage ceremony
2. Made in consideration of marriage
3. Made in favor of one or both spouses
4. Donee must accept the donation personally or thru an authorized person with
special power of attorney for the purpose or with a general/sufficient power
5. The acceptance must be made during the lifetime of donor and donee

Q.

What kind of donations are excluded?

A.

The following donations are excluded:


1. Made in favor of the spouses after the celebration of the marriage;
2. Executed in favor of the future spouses but not in consideration of marriage; and
3. Granted to persons other than the spouses even though they may be founded on
the marriage (6 Manresa 232, cited in Serrano v. Solomon, 105 Phil. 998)

Q.

What are the requisites of a valid donation between future spouses?

A.

The following are the requisites of a valid donation between future spouses:
1. There must be a valid marriage settlement
2. The marriage settlement must stipulate a property regime other than
ACP
3. The donation contained in the marriage must not be more than 1/5 of
his/her present property
4. The donation must be accepted by the would-be spouse
5. It must comply w/ the requisites on donations (Title 3, Book 3, NCC)

Q.

When can there be a donation between future spouses?

A.

Giving a donation propter nuptias to a would- be spouse prior to the marriage is


useless if the property regime that will govern their marriage is the absolute
community of property. This is so because generally, in an absolute community of

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Donations by Reason of Marriage


property, the spouses become co- owners of whatever each of them owns before the
marriage and whatever each of them acquires after the marriage.
Q.

When will the not more than one- fifth limitation not apply?

A.

If there is a marriage settlement providing for a particular property regime other


than the absolute community property and there is also a donation propter nuptias
not included in a marriage settlement but contained in a separate deed, the not
more than one- fifth limitation will not apply. Instead, the general rules on
donation contained in Title III of Book III of the Civil Code shall govern. This is
subject to the provision in the Civil Code that no person may give or receive, by
way of donation, more than he may give or receive by will. The donation shall be
inofficious in all that it may exceed this limitation. (Article 752 of the Civil Code)
Art. 85. Donations by reason of marriage of property subject to
encumbrances shall be valid. In case of foreclosure of the
encumbrance and the property is sold for less than the total
amount of the obligation secured, the donee shall not be liable for
the deficiency. If the property is sold for more than the total
amount of said obligation, the donee shall be entitled to the excess.
(131a)

Q.

If the object of the donation is subject of an encumbrance, is the donation valid?

A.

Yes. The donation is still valid even if the object of donation is subject of an
encumbrance. However, the donees rights are subject to the encumbrance.

Q.

What are the consequences if the property donated is subject to an encumbrance?

A.

The following are the consequences if the object donated is foreclosed:


1. Deficiency donee NOT liable if the amount obtained is less than amount of the
debt of donor; he is not a solidary debtor of the liability of the donor
2. Excess donee entitled to the excess; but donee cannot seek reimbursement from
donor for the amount w/c was taken by the creditor
Art. 86. A donation by reason of marriage may be revoked by the
donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void
ab initio except donations made in the marriage settlements,
which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the
parents or guardian, as required by law;

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(3) When the marriage is annulled, and the donee acted in bad
faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is
complied with;
(6) When the donee has committed an act of ingratitude as
specified by the provisions of the Civil Code on donations in
general. (132a)
Art. 87. Every donation or grant of gratuitous advantage, direct or
indirect, between the spouses during the marriage shall be void,
except moderate gifts which the spouses may give each other on
the occasion of any family rejoicing. The prohibition shall also
apply to persons living together as husband and wife without a
valid marriage. (133a)
Q.

What are the grounds for the revocation of a donation propter nuptias?

A.

A donation by reason of marriage may be revoked by the donor in the following


cases:
1. If the marriage is not celebrated or judicially declared void ab initio except
donations made in the marriage settlements, which shall be governed by Article 81;
2. When the marriage takes place without the consent of the parents or guardian,
as required by law;
3. When the marriage is annulled, and the donee acted in bad faith;
4. Upon legal separation, the donee being the guilty spouse;
5. If it is with a resolutory condition and the condition is complied with;
6. When the donee has committed an act of ingratitude as specified by the
provisions of the Civil Code on donations in general.

Q.

What is the effect on the donation propter nuptias if the marriage is not celebrated?

A.

If the marriage is not celebrated, the donor has the option to revoke or to maintain
the donation.

Q.

What happens to the donation propter nuptias, contained in a marriage settlement


executed prior to the marriage, if the marriage is not celebrated?

A.

Generally, if the donation is contained in a marriage settlement executed prior to


the marriage, the donation is void. Except in cases where the donation does not
depend on the celebration of the marriage, in which case, the donation remains
effected.

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Q.

Is there a prescriptive period within which the donor can exercise the right to
revoke or recover the donation given?

A.

Donor may revoke the donation within 5 years from the moment the marriage is
not solemnized on the fixed date.

Q.

When can the donor have the right to revoke the donation on the ground that he
marriage is void?

A.

Before revocation, there must be a judicial declaration that the marriage is void.
Notably, there are five situations that can arise depending on the reason for the
nullity of marriage:
1.
Subsequent void marriage for failure to comply w/ Art. 40 donation
revoked by operation of law if the donee-spouse contracted the subsequent
void marriage in BF (Arts. 40, 52, 53)
2.
One obtains judicial declaration of presumptive death & both are in bad
faith in the subsequent marriage donation revoked by operation of law
(Arts. 41, 44)
3.
All other rounds for nullity where good faith and bad faith of the donee are
irrelevant donor has option to revoke the donation
4.
Donation inside a bigamous marriage second spouse has option to revoke
the donation made to his/her spouse who has a prior subsisting marriage;
but if the spouse who contracted 2 marriages made a donation to his/her 2nd
spouse, it is void if they are guilty of adultery, concubinage, or they were
living together as H&W w/o a valid marriage.
5.
If both parties in GF donor has option to revoke the donation

Q.

What is the effect of the absence of the consent of the parents or guardian to the
donation propter nuptias?

A.

The donor has the option to revoke the donation even before the marriage is
annulled. If the donor knew of the non- consent of the parents before the marriage,
the donor may not yet revoke because the parents can still give their consent
anytime prior to the marriage ceremony. With this, the donor has five years from
the time he had knowledge that the needed consent was not obtained by the parties
as it is only from that time that the cause of action will accrue.

Q.

What is the effect of the annulment of marriage and the bad faith of the donee to
the donation?

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A.

The spouse who acted in bad faith in procuring the marriage should not be allowed
to profit/gain from the donation. The donation, in the instant case, is revoked by
operation of law.

Q.

What is the effect of the legal separation and where the donee is the guilty party on
the donation?

A.

Generally, the donor has the option either to revoke or to maintain the donation.
Unless, if the ground is sexual infidelity in the form of concubinage or adultery, the
donation is VOID. Thus, the donor has 5 years from the finality of the decree of
legal separation within which to exercise his right to revoke.

Q.

What is the consequence if the donation propter nuptias is with a resolutory


condition and the condition is complied with?

A.

Generally, if the donation propter nuptias is with a resolutory condition and the
condition is complied with, such donation the donor has option to revoke or to
maintain donation within 5 years. However, if one spouse makes the donation to
the other, the donor can recover anytime.

Q.

When can the donor revoke the donation by reason of acts of ingratitude?

A.

Donor may exercise his option to revoke or to maintain the donation within one
year from knowledge of the fact of ingratitude & its possible to bring the suit.
However, alienations & mortgages effected before the notation of the complaint for
revocation in the Registry of Property shall subsist. Later ones are void.

Q.
A.

What are deemed as void donations?


The following are void donations:
1.
Donations made by persons guilty of adultery/concubinage at the time of the
donation
2.
Donations between persons living together as H&W w/o a valid marriage

Q.

Can spouses, during the marriage, make donations to the other spouse?

A.

Generally, donations made, directly or indirectly, between spouses during the


marriage are VOID. This prohibition applies to common-law spouses or those living
together as H&W w/o the benefit of marriage. (Matabuena v. Cervantes, 38 SCRA
284). Exceptions in the following cases:
1.
Moderate gifts which the spouses may give each other on occasion of family
rejoicing. Moderate gifts will depend on a case-to-case basis esp. considering the
financial capacity of the donor.

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2.
Donations by both spouses in favor of their common legitimate children for
the exclusive purpose of commencing/completing a professional or vocational
course/activity for self-improvement are valid. The amount shall be chargeable to
the ACP/CPG.
Q.

Are donations made by persons who were guilty of adultery or concubinage at the
time of donation, valid?

A.

No. In Agapay v. Palang, 85 SCRA 640, where the husband transferred a property
to his second wife at the time his first marriage was still subsisting, the Supreme
Court ruled that the transfer was in fact a donation, and therefore, void under
Article 739 of the Civil Code and also under Article 87 of the Family Code which
pertinently provides that donations between persons living together as husband
and wife without a valid marriage is void.

Q.

What are considered as indirect donations of a spouse, and are thus void under
Article 87?

A.

Article 87 includes the following donations of a spouse to


1.
A stepchild who has no compulsory and/or legal heirs, as his or her
children, other than the other spouse at the time of the donation;
2.
A common child who has no compulsory and/or legal heirs other than
the other spouse at the time of the donation;
3.
The parents of the other spouse;
4.
The other spouses adopted child who has no compulsory and/or heirs
or, in cases when, at the time of the donation, the only surviving
relative of the adopted is the other spouse (parent of the adopted);
5.
A common adopted child who has no other compulsory and/or legal
heirs.

Q.

Who can challenge the validity of the transfer?

A.

Only persons who bear such a relation to the parties making the transfer or to the
property itself that such transfer interfere w/ their rights or interests. The validity
of the donation cannot be challenged by those who bore absolutely no relation to the
parties to the transfer at the time it occurred & had no rights or interests inchoate,
present, remote, or otherwise in the property in question at the time the transfer
occurred.

Chapter 3
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System of Absolute Community


Section 1
General Provisions
Art. 88. The absolute community of property between spouses shall
commence at the precise moment that the marriage is celebrated.
Any stipulation, express or implied, for the commencement of the
community regime at any other time shall be void. (145a)
Art. 89. No waiver of rights, shares and effects of the absolute
community of property during the marriage can be made except in
case of judicial separation of property.
When the waiver takes place upon a judicial separation of
property, or after the marriage has been dissolved or annulled, the
same shall appear in a public instrument and shall be recorded as
provided in Article 77. The creditors of the spouse who made such
waiver may petition the court to rescind the waiver to the extent of
the amount sufficient to cover the amount of their credits. (146a)
Art. 90. The provisions on co-ownership shall apply to the absolute
community of property between the spouses in all matters not
provided for in this Chapter.
Q.

What comprises the absolute community property (ACP) between spouses?

A.

All properties owned by the contracting parties before the marriage ceremony and
those which they may acquire thereafter shall comprise the absolute community
property regime. Also, in a partial separation of property regime, the property not
agreed upon as separate shall pertain to the absolute community.

Q.

Can an alien married to a Filipino have any interest in the community or


partnership?

A.

No. The Supreme Court said in the case of Matthews v. Taylor, G.R. no. 164584,
June 22, 2009 that alienshave been disqualified from acquiring lands of the
public domain. Hence, by virtue of the aforecited constitutional provision, they are
also disqualified from acquiring private lands. The primary purpose of this
constitutional provision is the conservation of the national patrimony.

Q.

When will the ACP commence?

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A.

ACP commences at the precise moment of the celebration of the marriage. Any
stipulation, express or implied, for the commencement of the community regime at
any other time shall be void.

Section 2
What Constitutes Community Property
Art. 91. Unless otherwise provided in this Chapter or in the
marriage settlements, the community property shall consist of all
the property owned by the spouses at the time of the celebration of
the marriage or acquired thereafter. (197a)
Art. 92. The following shall be excluded from the community
property:
(1) Property acquired during the marriage by gratuitous title by
either spouse, and the fruits as well as the income thereof, if
any, unless it is expressly provided by the donor, testator or
grantor that they shall form part of the community property;
(2) Property for personal and exclusive use of either spouse.
However, jewelry shall form part of the community property;
(3) Property acquired before the marriage by either spouse who
has legitimate descendants by a former marriage, and the
fruits as well as the income, if any, of such property. (201a)
Art. 93. Property acquired during the marriage is presumed to
belong to the community, unless it is proved that it is one of those
excluded therefrom. (160)
Q.

Why is it that the system of absolute community of property (ACP) is considered as


a special type of co- ownership?

A.

ACP is considered as a special type of co- ownership because the spouses, as coowners, can use the thing they owned in common in such a way as not to injure the
interests of the co- ownership. However, unlike ordinary co-ownership, no waiver of
rights, interests, shares and effects of the ACP during the marriage can be made,
except in case of a judicial separation of property. This is for the reason that the
interest of the parties in the community property is merely inchoate or an
expectance prior to liquidation. (Abalos v. Macatangay, 439 SCRA 649)

Q.

Where can a waiver of rights, interests, shares and effects of the ACP be made?

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A.

When a waiver takes place upon a judicial separation of property, or after the
marriage has been dissolved or annulled, the same shall appear in a public
instrument and shall be recorded, as provided in Article 77.

Q.

Who may petition the court to rescind the waiver?

A.

The creditors of the spouse who made such waiver may petition the court to rescind
the waiver to the extent of the amount sufficient to cover the amount of their
credits.

Q.

What is the effect of a waiver without a judicial separation of property decree?

A.

If the waiver takes place without a judicial separation of property decree, such
waiver shall be void because it is contrary to law and public policy pursuant to
Article 6 of the Civil Code and because such waiver shall constitute an act which is
against a prohibitory law as provided in Article 5 of the Civil Code.

Q.

What would govern the relationship if there was no marital agreement entered into
by the contracting parties prior to the marriage?
The property regime, in the absence of any agreement to the contrary, shall be the
absolute community of property.

A.
Q.

What properties can be excluded from the ACP?

A.

The following shall be excluded from the community property:


1.
Properties of each spouse that are excluded from the community of property
in the marriage settlement.
2.
Property acquired by valid gratuitous title during the marriage. However,
the donor, testor, or grantor may provide that the property and the fruits as
well as the income thereof shall form part of the community property.
3.
Property for personal and exclusive use of either of the spouses, except
jewelry which shall form part of the community property.
4.
Property acquired before the marriage by either spouse who has legitimate
descendants by a former marriage, and the fruits as well as the income, if
any, of such property.

Section 3
Charges and Obligations of the Absolute Community
Art. 94. The absolute community of property shall be liable for:

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(1) The support of the spouses, their common children, and


legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the
community, or by both spouses, or by one spouse with the
consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have been
benefited;
(4) All taxes, liens, charges and expenses, including major or minor
repairs, upon the community property;
(5) All taxes and expenses for mere preservation made during
marriage upon the separate property of either spouse used by
the family;
(6) Expenses to enable either spouse to commence or complete a
professional or vocational course, or other activity for selfimprovement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those falling
under paragraph (7) of this Article, the support of illegitimate
children of either spouse, and liabilities incurred by either
spouse by reason of a crime or a quasi-delict, in case of absence
or insufficiency of the exclusive property of the debtor-spouse,
the payment of which shall be considered as advances to be
deducted from the share of the debtor-spouse upon liquidation
of the community; and
(10) Expenses of litigation between the spouses unless the suit is
found to be groundless.
If the community property is insufficient to cover the foregoing
liabilities, except those falling under paragraph (9), the spouses
shall be solidarily liable for the unpaid balance with their separate
properties. (161a, 162a, 163a, 202a-205a)
Q.

What is Support?

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A.

Support comprises everything indispensable for sustenance, dwelling, clothing,


medical attendance, education and transportation, in keeping with the financial
capacity of the family.

Q.

Does the right for support to education end upon reaching the age of majority?

A.

No.

Q.

Where will the support for illegitimate child come from?

A.

It shall be taken from the separate property of the parent-spouse. In case of


absence or insufficiency of separate property, the ACP shall pay but it shall be
considered as advances to be deducted from the share of the parent concerned upon
liquidation of the community.

Q.

Can an administrator-spouse contract a debt or obligation for and in behalf of the


ACP without obtaining the consent of the other spouse?

A.

Yes, provided there is proof to show that it redounded to the benefit of the family.
This requirement is indicative of the solicitude and tender regard that the law
manifests for the family as a unit. (BA Finance Corporation v. Court of Appeals,
161 SCRA 608; Luzon Surety Co., Inc. v. De Garcia, 30 SCRA 111)

Q.

What if the debt or obligation was not for the benefit of the family, will the ACP be
held liable?

A.

Yes, if the other spouse consented. Consent may be express or implied. (Marmont
Resort Hotel Enterprises v. Guiang, 168 SCRA 373)

Q.

Supposing the debt or obligation was contracted prior to the marriage, can the ACP
be held liable?

A.

Yes, provided it redounded to the benefit of the family. But if it did not benefit the
family, the ACP, in the absence or insufficiency of the exclusive property of the
debtor spouse, shall pay and it will be considered as advances to be deducted on the
share of the debtor spouse upon liquidation.

Q.

Are the losses resulting from the exercise of a profession or family business by any
of the spouses chargeable to the ACP?

A.

Yes. (Ayala Investment v. Court of Appeals, G.R. No. 118305, February 12, 1998.)

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Q.

Suppose one of the spouses makes himself a surety or guarantor in relation to an


obligation of another person, can the ACP be held liable?

A.

Any personal undertaking by a spouse cannot be presumed to be for the benefit of


the family as any advantage that may arise therefore is merely indirect. (Security
Bank and Trust Company v. Mar Tierra Corporation, G.R. No. 143382, November
29, 2006; Ching v. Court of Appeals, 423 SCRA 356).

Q.

Can the taxes, liens, charges, and expenses upon the community property be done
without the consent of the other spouse?

A.

Yes, following the general rules on co-ownership.

Q.

Is the ACP liable for the expenditures incurred for the preservation of the separate
property of any of the spouses?

A.

Yes, because it is premised on the fact that the separate property has been used or
is being used by the family during the marriage.

Q.

Can the value of a donation or promise by both spouses in favor of their common
legitimate children ne chargeable to the ACP?

A.

Only if it is for the exclusive purpose of commencing or completing a professional or


vocational course or other activity for self-improvement.

Q.

What if only one of the spouses donates?

A.

This may fall under the prohibition under Article 87 making donations between
spouses, direct or indirect, void. A donation by one spouse to a common child who
has no descendants or compulsory heir other that his or her parents is an indirect
donation to the other spouse.

Q.

Can the ACP be held liable to pay the obligation or debt arising from a crime or
quasi-delict of a particular spouse?

A.

The separate property of the erring spouse shall be liable. In case of absence or
insufficiency of the exclusive property, the ACP shall pay, but such payments shall
be considered as advances, to be deducted from share of debtor spouse upon
liquidation.

Q.
Can the ACP be held liable for the expenses of litigation between husband and
wife?

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A.

Yes, provided that the case is not groundless.

Q.
Can the ACP be held liable for a suit not involving a case between husband and
wife?
A.

Yes, for as long as the suit benefits the family.

Q.

A wife was criminally sued by her husband for adultery and the wife had to spend
attorneys fees to defend herself, can the ACP be held liable for such fees?

A.

Yes. The legal fees spent during litigation, wherein she was subsequently
acquitted, was as necessary as a claim for support, inasmuch as the right to a good
name and reputation and the right to personal liberty are, at least, as vital and
deserving of protection as the right to existence which is, in the last analysis, the
meaning of the right to support. (Seva v. Nolan, 64 Phil. 374)

Q.

A stipulation in a lawyer-client agreement stating:


I hereby agree to pay said Attorney Claro M. Recto
twenty (20%) per cent of the value of the share and
participation which I may receive in the funds and properties
of the said conjugal partnership of myself and Defendant Fred
M. Harden, as a result of the liquidation thereof either by
death, divorce, judicial separation, compromise or by any
means or method by virtue of which said partnership is or
may be liquidated.
Can the CPG be held liable?

A.

No, it does not seek to bind the CPG. By virtue of said contract, Mrs. Harden
merely bound herself or assumed the personal obligation to pay, by way of
contingent fees, 20% of her share in said partnership. The contract neither gives,
nor purports to give, to the Appellee any right whatsoever, personal or real, in and
to her aforesaid share. The amount thereof is simply a basis for the computation of
said fees. (Recto v. Harden, 100 Phil. 427)

Q.

The spouses shall be solidarily liable for unpaid balance with their separate
properties if the community property is insufficient to cover the liabilities for which
the ACP is liable. What are not included in the solidary liability?

A.

(1) Ante-nuptial debts not redounding to the benefit of the family, (2) support of
illegitimate children by either spouses, and (3) liabilities incurred by the spouse by
reason of a crime or quasi-delict.

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Q.
A.

If the husband and wife maintains joint administration, and one of them becomes
insolvent, may the right of the insolvent spouse be to jointly administer be legally
curtailed by the court?
Yes. The court may make the non-insolvent spouse the sole administrator or
appoint a third person.
Art. 95. Whatever may be lost during the marriage in any game of
chance, betting, sweepstakes, or any other kind of gambling,
whether permitted or prohibited by law, shall be borne by the loser
and shall not be charged to the community but any winnings
therefrom shall form part of the community property. (164a)

Q.

Suppose a stranger just gave, without consideration, one of the spouses a


sweepstake ticket which eventually won, will the winning form part of the ACP?

A.
No. It is separate property, unless the donor expressly provided it to form part of
the ACP.

Section 4. Ownership, Administration, Enjoyment


and Disposition of the Community Property
Art. 96. The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable
to participate in the administration of the common properties, the
other spouse may assume sole powers of administration. These
powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both
offerors. (206a)

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Q.

May administration of property be validly delegated to only one spouse?

A.

Yes, in a marriage settlement executed prior to the marriage.

Q.

Does joint administration require the husband and wife to always act together?

A.

No. Each spouse may validly exercise full power of management alone, subject to
the
intervention of the court in proper cases.

Q.

The signature of the husband or wife alone appears in a complaint filed in court
involving community or conjugal property. Is this valid?

A.

Yes. Each of the spouse may be reasonably presumed to have personal knowledge
of the filing or non-filing by the other spouse of any action or claim similar to the
petition which the other spouse filed given the notices and legal processes involved
in a legal proceeding involving real property. (Docena v. Lapesura, G.R. No.
140153, March 28, 2001)
Note: The ordinary rules on co-ownership apply in a suppletory character.

Q.

If, despite a disagreement, the wife implements her desires or enters into any
contract to enforce her objectives, what is the remedy of the husband?

A.

The husband can go to court for adequate relief.

Q.

What is the effect of any disposition by one spouse of the properties in an ACP,
without the knowledge and consent of the other spouse?

A.

It is null and void. It is likewise imprescriptible.

Q.

Suppose that a third-party purchaser relied in good faith on the Transfer


Certificate of Title indicating that the person named therein is single, when in fact
he/she is married. Can the transaction be voided?

A.

No. The innocent purchaser for value may rely on what is officially annotated in the
TCT. The remedy of the aggrieved spouse is to compel the erring spouse to account
for the proceeds of the sale, as the same is part of the ACP. (PNB v. Court of
Appeals, 153 SCRA 435)

Q.

Suppose that a husband, without the consent of his wife but with her knowledge,
enters into a contract affecting the ACP, what is the status of the contract?

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A.

It is annullable at the instance of the wife. (Ravina v. Abrille, G.R. No. 160708,
October 16, 2009) However, if the wife ratifies the contract by any express or
implied act, she cannot seek the annulment of the contract even within the 5 year
prescriptive period.
Note: The wife has the right to annul or nullify, as the case may be, not only her
share in the property involved, but the entire contract itself.

Q.

What is the effect of incapacity of one of the spouses on administration?

A.

The other spouse may assume sole powers of administration.

Q.

If the spouse if absent or separated in fact, or abandoned the other, or consent is


withheld, how is the appointment to be effected?

A.

Through a summary proceeding.

Q.

What about if the spouse is incompetent who is in a comatose or semi-comatose


condition, without motor or mental faculties?

A.

The proper remedy is a judicial guardianship proceeding under Rule 93 of the


Rules of Court, not a summary proceeding under the Family Code. (Uy v. Court of
Appeals, G.R. No. 109557, November 29, 2000)
Note: In any event, should the administering spouse decide to sell real property as
such administrator of the community of conjugal property, he or she must observe
the procedure for sale of the wards estate required of judicial guardians under Rule
95, not summary proceedings under the Family Code. This is so because as the
administrator spouse, he or she must perform the duties of a guardian. (Uy v.
Court of Appeals, G.R. No. 109557, November 29, 2000)

Q.

What is the legal significance of a transaction under this article?

A.
It is treated as a continuing offer on the part of the consenting spouse and the third
person.
Art. 97. Either spouse may dispose by will of his or her interest in
the community property. (n)
Q.

Will such disposition be considered a waiver of interest in the community property?

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A.

No. Such waiver is prohibited under Article 89 of the Family Code. The act of
disposition precisely highlights the testators intent to control the property to take
effect after death.
Art. 98. Neither spouse may donate any community property
without the consent of the other. However, either spouse may,
without the consent of the other, make moderate donations from
the community property for charity or on occasions of family
rejoicing or family distress. (n)

Q.

What is the reason for the prohibition?

A.

It is intended to protect the other spouses share from the prodigality of a reckless
or faithless spouse. (Estate of McNutt, 36 Cal App 2d 542, 98 P2d 253)

Q.

What are the exceptions?

A.

Either spouse may, without the consent of the other, make moderate donations
from the community property for charity or on occasions of family rejoicing or
distress.

Section 5
Dissolution of Absolute Community Regime
Art. 99. The absolute community terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138. (175a)
Q.

Does the termination of the ACP result to the termination of the marriage?

A.

No. But the termination of the marriage simultaneously results in the dissolution
of the ACP.

Q.

Suppose that after a decree of legal separation has been obtained, the parties
reconciled, may they agree to revive the property regime?

A.

Yes, subject to the provisions of Article 67.

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Q.

What happens when a reappearing spouse or an interested person files an affidavit


of reappearance to terminate the subsequent marriage of the present spouse?

A.

The subsequent marriage shall be terminated and result in the dissolution of the
ACP or CPG.
Art. 100. The separation in fact between husband and wife shall not
affect the regime of absolute community except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the
other is required by law, judicial authorization shall be
obtained in a summary proceeding;
(3) In the absence of sufficient community property, the
separate property of both spouses shall be solidarily liable
for the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial
authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds
thereof to satisfy the latter's share. (178a)

Q.

What is the effect of a separation in fact between the spouses?

A.

Generally, the ACP will not be affected, with the exception of the circumstances
enumerated in the article.

Q.

May the mere fact of separating from the conjugal roof constitute a reason for
annulling the right of support?

A.

No. It cannot be presumed culpable when there is no evidence of any fault or guilt
on the part of the one who so separates. (Sumulong v. Cembrano, 51 Phil. 719)
Fault must always be proven.

Q.

May the spouse who left the conjugal home without a valid cause seek judicial
authorization when the consent of the other spouse is not obtained?

A.

Yes.

Q.

Who is given legal standing by law to seek judicial authority to administer or


encumber any specific property of the other spouse and use the fruits or proceeds
thereof to satisfy the latters share in the absence or insufficiency of community
property for the support of the family?

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A.

Only the present spouse.


Art. 101. If a spouse without just cause abandons the other or fails
to comply with his or her obligations to the family, the aggrieved
spouse may petition the court for receivership, for judicial
separation of property or for authority to be the sole administrator
of the absolute community, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or she
has left the conjugal dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (178a)

Q.

What is abandonment?

A.

Abandonment must not only be physical estrangement but also amount to financial
and moral desertion. (Dela Cruz v. Dela Cruz, 130 Phil. 324)

Q.

What obligations are contemplated in this article?

A.

Marital, parental, or property relationship.

Q.

Does mere refusal or failure of the administrator of the property to inform the other
spouse of the progress of family businesses constitute abuse of administration?

A.

No. (Dela Cruz v. Dela Cruz, 130 Phil. 32)


Note: If it is shown that such failure to comply with the obligations of a family
constitutes a psychological incapacity to perform the essential marital obligations,
which existed at the time of marriage, the marriage itself can be considered void
under Article 36. And if the abandonment without just cause is for more than one
year, another remedy is the filing of a legal separation case.

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Section 6
Liquidation of the Absolute Community
Art. 102. Upon dissolution of the absolute community regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the absolute community and the exclusive
properties of each spouse.
(2) The debts and obligations of the absolute community shall
be paid out of its assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance
with their separate properties in accordance with the
provisions of the second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute
community shall constitute its net assets, which shall be
divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage
settlements, or unless there has been a voluntary waiver of
such share provided in this Code. For purpose of computing
the net profits subject to forfeiture in accordance with Articles
43, No. (2) and 63, No. (2), the said profits shall be the increase
in value between the market value of the community property
at the time of the celebration of the marriage and the market
value at the time of its dissolution.
(5) The presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon by the parties, in the
partition of the properties, the conjugal dwelling and the lot on
which it is situated shall be adjudicated to the spouse with
whom the majority of the common children choose to remain.
Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In
case there in no such majority, the court shall decide, taking
into consideration the best interests of said children. (n)

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Q.

How do you liquidate an Absolute Community Regime?

A.

See Art. 102

Q.

When can the dissolution process begin?

A.

It occurs upon the happening of the events enumerated in Art. 99

Q.

Does this procedure apply in a voluntary judicial separation of property?

A.

No. It may be governed by the agreement of the parties provided that the court
approves the same.

Q.

What should be inventoried?

A.

All properties or assets at the time of the dissolution, whether belonging to the
Absolute Community of property or separate property of the spouses, should be
inventoried.

Q.

What should be the basis when appraising the value of the inventoried items?

A.

The market value or, in default thereof, the assessed value at the time of
liquidation should be taken into account and not the purchase price.

Q.

Will equal sharing between the spouses always apply in the partition of the net
assets?

A.

No. If there is a division agreed upon in the marriage settlement, it will be followed.
Or if there is a voluntary waiver made by one of the spouses in accordance with the
law.

Q.

When should the presumptive legitime be delivered?

A.

It should be delivered only after the finality of a judicial decree of annulment or of


nullity of a subsequent void marriage.

Q.

Should the presumptive legitimes be delivered in cases of legal separation or in a


case of judicially declared void marriage other than in a subsequent void marriage
as a result of the non-observance of Article 40?

A.

No. It is only delivered in the two situations mentioned previously.

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Art. 103. Upon the termination of the marriage by death, the


community property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the community property either judicially
or extra-judicially within six months from the death of the
deceased spouse. If upon the lapse of the six months period, no
liquidation is made, any disposition or encumbrance involving
the community property of the terminated marriage shall be
void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a
mandatory regime of complete separation of property shall
govern the property relations of the subsequent marriage. (n)
Q.

Why is any disposition or encumbrance involving the community property void if no


liquidation was made prior to such actions?

A.

This is because it is only after liquidation and partition when specific properties are
definitely and physically determined. This is only the time when a sale of such
allotted property can be made. Prior to liquidation and partition, the spouse or
heirs of the decedent only acquires an interest to the entire property.

Q.

What happens if there is a surviving spouse and compulsory heirs?

A.

A co-ownership of the community property will be formed between them upon the
death of the spouse.

Q.

Can the surviving spouse or the compulsory heirs undertake any act of dominion
over the property prior liquidation and partition?

A.

Yes they can but only over their interest, share or participation and not over a
specific concrete property.

Q.

If a co-owner mortgages his interest over the property, can an administrator still
sell such property?

A.

Yes. The attachment is still subject to the administration of the estate. The
administrator retains the power to sell the property if it is necessary to pay off the
debts of the deceased.

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Q.

Where should a creditor make his claim against the community property upon the
death of the debtor-spouse?

A.

The claim should be filed in the settlement of estate proceeding of the deceased
spouse.

Q.

Is this rule absolute?

A.

No. If the surviving spouse committed himself or herself to be solidarily liable for
the claim against the community property, a complaint may be brought against
such spouse.

Q.

What happens if the surviving spouse remarries without liquidating and


partitioning the community property of the first marriage?

A.

The regime of Complete Separation of Property shall govern the subsequent


marriage.

Q.

Is this mandatory?

A.

Yes, it is mandatory.

Q.

What if prior to the subsequent marriage, a marriage settlement was executed


which states that either the ACP or CPG shall govern?

A.

Such stipulation is not valid as it is against the law.

Q.

Does this mandatory regime apply if the termination of the marriage is by nullity
or annulment?
No. This mandatory regime will only apply in case the termination of the first
marriage is by DEATH. If it is by nullity or annulment, the property regime in the
subsequent marriage is co-ownership since it is void pursuant to Articles 52 and 53.

A.

Art. 104. Whenever the liquidation of the community properties


of two or more marriages contracted by the same person before
the effectivity of this Code is carried out simultaneously, the
respective capital, fruits and income of each community shall
be determined upon such proof as may be considered
according to the rules of evidence. In case of doubt as to which
community the existing properties belong, the same shall be

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divided between the different communities in proportion to


the capital and duration of each. (189a)
Q.

When is Article 104 applicable?

A.

It is applicable when there are at least two marriages contracted prior August 3,
1988 and the community properties of such marriages are to be liquidated at the
same time.

Q.

What happens if there are two marriages that are equal in duration and the total
amount of assets is 15k?

A.

The heirs of each marriage get 7.5k each

Q.

What if the first marriage lasted 2 years while the other 3 years and the total
amount of assets is 15k?

A.

The first marriage gets 2/5 of 15k and the second marriage gets 3/5.

Q.
What if the duration of the marriage is unknown but the amount of assets of each
marriage are known (1k for the first, 2k for the second)?
A.

The first marriage will get 1/3 of 15k while the second 2/3.

Q.

What if the first marriage lasted for 2 years and had 1k of assets while the second
lasted for 3 years and had 2k of assets?
Multiply the duration and the amount of each marriage then pro-rate the entire
amount of assets. In this case the first marriage will get 2/8 of 15k while the second
marriage will get 6/8 of 15k.

A.

Chapter 4
Conjugal Partnership of Gains
Section 1
General Provisions
Art. 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership gains shall

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govern their property relations during marriage, the provisions in


this Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to vested
rights already acquired in accordance with the Civil Code or
other
laws,
as
provided
in
Article
256.
(n)
Art. 106. Under the regime of conjugal partnership of gains, the
husband and wife place in a common fund the proceeds,
products, fruits and income from their separate properties and
those acquired by either or both spouses through their efforts
or by chance, and, upon dissolution of the marriage or of the
partnership, the net gains or benefits obtained by either or
both spouses shall be divided equally between them, unless
otherwise agreed in the marriage settlements. (142a)
Q.

What is covered by the Conjugal Partnership of Gains?

A.

The spouses place in a common fund the proceeds, products, fruits and income from
their separate properties and those acquired by either or both spouses through
their efforts or by chance.

Q.

When is there a presumption of conjugality?

A.

The presumption attaches if it can be proven that the property was acquired
DURING the marriage.
Art. 107. The rules provided in Articles 88 and 89 shall also apply to
conjugal partnership of gains. (n)

Q.

When does the Conjugal Partnership commence?

A.

It commences at the precise moment (hour, not day) when the marriage ceremony
is celebrated.
Can a waiver be made of rights, interests, shares and effects of the conjugal
property during the marriage?
There can be no waiver during marriage by any of the spouse except when there is
a judicial separation of property.

Q.
A.

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Art. 108. The conjugal partnership shall be governed by the rules on


the contract of partnership in all that is not in conflict with what is
expressly determined in this Chapter or by the spouses in their
marriage settlements. (147a)
Q.

How is the ACP different from the CPG?

A.

In ACP, the rules on CO-OWNERSHIP apply suppletorily while in CPG, it is the


rules on the contract of PARTNERSHIP which applies.

Q.

If a spouse files an action against the third party, is it required to make the other
spouse a party to the case?

A.

No, the other spouse is not an indispensable party to the case. Being a partner, they
are deemed co-owners and the filing of one co-owner does not need the joining of the
other co-owners.
Section 2
Exclusive Property of Each Spouse
Art. 109. The following shall be the exclusive property of each
spouse:
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by
gratuitous title;
(3) That which is acquired by right of redemption, by barter
or by exchange with property belonging to only one of the
spouses; and
(4) That which is purchased with exclusive money of the wife
or of the husband. (148a)

Q.

What are the properties to be deemed owned exclusively by the spouses?

A.

See Art. 109.

Q.

Can the properties brought into the marriage by the owner-spouse as his own be
encumbered, alienated or disposed of by the other spouse?

A.

Yes, if the owner-spouse consents to such. Otherwise, the other spouse cannot.

Q.

What if the property was purchased before the marriage but was only registered
after the marriage under the name of the owner-spouse and the other spouse as coowner?

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A.

Such property is still to be deemed as the exclusive property of the owner-spouse


since he bought it with his exclusive funds prior the marriage. The registering of
the other spouse as co-owner only creates a trust.

Q.

How are properties acquired by gratuitous title made in ACP similar with
donations made in CPG?

A.

Both donations shall belong exclusively to the spouse-recipient.

Q.

How are they different?

A.

In ACP, the income and fruits of such property are deemed as exclusive property of
the recipient-spouse while in CPG, it shall be considered as conjugal property.

Q.

What about redeemed properties?

A.

It shall belong exclusively to the spouse who had the right to redeem such property
even if he uses his own funds or used conjugal funds. If conjugal funds were used,
such spouse is obliged to reimburse such amount.

Q.

What if conjugal property were executed upon and sold and one of the spouses
redeemed such property with her own funds, would it still be conjugal property?

A.

No, it will be the exclusive property of the redeeming spouse.

Q.

What happens if separate properties were sold and the proceeds were added to
conjugal funds to buy properties, what is the nature of such property?

A.

The property will be considered as conjugal property.

Q.

A property was purchased using the exclusive money of one of the spouses and the
title was taken in the spouses joint names, what is the nature of the property?

A.

It depends. The circumstances of the situation will be considered to see if such is a


donation to the other spouse or a trust was intended.
Art. 110. The spouses retain the ownership, possession,
administration and enjoyment of their exclusive properties.
Either spouse may, during the marriage, transfer the
administration of his or her exclusive property to the other by
means of a public instrument, which shall be recorded in the

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registry of property of the place the property is located. (137a, 168a,


169a)
Q.

Can an owner-spouse still encumber, dispose or donate his exclusive properties


even after he transferred its administration to the other spouse?

A.

Yes, he still can.


Art. 111. A spouse of age may mortgage, encumber, alienate or
otherwise dispose of his or her exclusive property, without the
consent of the other spouse, and appear alone in court to litigate
with regard to the same. (n)
Art. 112. The alienation of any exclusive property of a spouse
administered by the other automatically terminates the
administration over such property and the proceeds of the
alienation shall be turned over to the owner-spouse. (n)

Q.

Is Article 111 still in effect?

A.

It has been rendered superfluous by Article 234 which lowers the majority age to
eighteen years.

Q.

Is there a limitation on the power of the owner-spouse to automatically terminate


the administration of the other spouse by alienating the property?

A.

Yes. Article 127 contemplates a situation where the spouses are separated in fact
and the present spouse had been given authority by the courts to administer or
encumber any specific property of the other spouse if the conjugal funds are not
sufficient to pay off its obligations. In this case, the owner-spouse cannot revoke
such administration by merely alienating such property. He may only alienate it
upon the courts approval.
Art. 113. Property donated or left by will to the spouses, jointly and
with designation of determinate shares, shall pertain to the doneespouses as his or her own exclusive property, and in the absence of
designation, share and share alike, without prejudice to the right of
accretion when proper. (150a)
Art. 114. If the donations are onerous, the amount of the charges
shall be borne by the exclusive property of the donee spouse,

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whenever they have been advanced by the conjugal partnership of


gains. (151a)
Q.

Is there accretion in cases of donation made in favor of husband and wife?

A.

Yes, there is accretion. If of a property is donated to a husband and to the wife,


the share of one spouse will go to the other in case he/she rejects such donation.

Q.

What about in properties left by will, will there be accretion?

A.

It depends, if the property left by will to the husband and wife is pro-indiviso (not
divided), then there would be accretion. However, if the will states that husband
will get Cebu property while wife will get Makati property, there would be no
accretion in this case as the properties are not pro-indiviso.

Q.

What if conjugal funds were used to pay for an onerous donation?

A.

The property donated will still be considered as exclusive property of the doneespouse. However, he will be obligated to reimburse the conjugal partnership.
Art. 115. Retirement benefits, pensions, annuities, gratuities,
usufructs and similar benefits shall be governed by the rules on
gratuitous or onerous acquisitions as may be proper in each case.
(n)

Q.

Are pensions, annuities and gratuities conjugal or separate?

A.

It would depend on a case-to-case basis. The manner it was obtained and the
circumstances of the case will be considered.

Q.

When does a gratuity become separate property?

A.

It is considered as separate property if it was given because of previous work.

Q.

Is an annuity a gratuity?

A.

An annuity is not a gratuity if the recipient thereof is entitled to it as a matter of


right. So if a government teacher complied with all the requirements of law to be
entitled to an annuity which shall be considered as conjugal.

Q.

Are pensions gratuity?

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A.

No. Pensions are in the nature of compensation for services previously rendered for
which full compensation was not received. It is, in effect, pay withheld. Therefore,
pensions are considered as conjugal.

Q.

What about Insurance proceeds?

A.

It would depend on how the insurance was paid. If it were paid by conjugal funds,
then the proceeds would be conjugal property. If it was paid by exclusive funds,
then the proceeds will be exclusive property. If it was paid partly by conjugal funds
and partly by exclusive funds, the proceeds will be partly owned by the conjugal
partnership and partly separate property in proportion with the amount of
contribution.

Section 3
Conjugal Partnership Property
Art. 116. All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or registered in
the name of one or both spouses, is presumed to be conjugal unless
the contrary is proved. (160a)
Q.

What property is presumed to be conjugal?

A.

All property acquired during the marriage, whether the acquisition appears to have
been made, contracted or registered in the name of one or both spouses, is
presumed to be conjugal unless the contrary is proved.

Q.

When is the presumption applicable?

A.

The presumption is applied when it has been proven that the property in
controversy was acquired during the marriage. Proof of acquisition during the
marriage is a condition sine qua non for the presumption to operate. (Jocson v.
Court of Appeals, 170 SCRA 333) For as long as acquisition is proven during the
marriage, the presumption will apply even when the manner in which the
properties were acquired does not appear (Tan v. Court of Appeals, 273 SCRA 229)
and even if the property is registered in the name of one or both of the spouses
(Villanueva v. Court of Appeals, G.R. No. 143286, April 12, 2004, 427 SCRA 439)

Q.

Does the presumption apply even when the spouses are living separately?

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A.

Yes, the presumption also applies even though the spouses are living separately
(Wong v. IAC, 200 SCRA 792)

Q.

Is the presumption conclusive?

A.

No, it is a rebuttable presumption. The presumption of the conjugal nature of


properties subsists in the absence of clear, satisfactory and convincing evidence to
overcome said presumption or to prove that the properties are exclusively owned by
one of the spouses. (Wong v. IAC, 200 SCRA 792)

Q.

What happens when there is no showing as to when the property in question was
acquired and the title is in the wifes name alone?

A.

The fact that the title is in the wifes name alone is determinative. (Maramba v.
Lozano, et al., G.R. No. L-21533, June 29, 1967, 20 SCRA 474)

Q.

A Torrens Title states that the owner is A married to B. Does that inscription
prove that the land is conjugal?

A.

No, the phrase married to is merely descriptive of civil status. (Magallon v.


Mantejo, 146 SCRA 282; see also Heirs of Jugalbot v. Court of Appeals, G.R. No.
170346, March 12, 2007, 518 SCRA 203)

Q.

Is registration of the property proof of acquisition during the marriage?

A.

No, because the property could have been acquired while the owner was single and
registered only after the marriage ceremony (Metropolitan Bank and Trust
Company v. Tan, G.R. No. 163712, November 30, 2006, 509 SCRA 383)

Q.

A left his wife B and family to bigamously marry another woman, C. Does
registration of the property under the name of C disprove that the property is
conjugal property of A and B?

A.

No, it does not. (Belcodero v. Court of Appeals, 45 SCAD 400, 227 SCRA 303)

Q.

A is the wife of B. A conveyed her property to a third person C. It was reconveyed to


A several months later. Is the property automatically transformed into conjugal
property?

A.

No, the reconveyance does not transform it to conjugal property, in the absence of
proof that the money paid in the reconveyance came from conjugal funds. (Plata v.
Yatco, 12 SCRA 718)

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Q.

Are proofs consisting of tax declaration in the name of one of the spouses obtained
during the marriage evidence of acquisition and enough to give rise to the
presumption that the property is conjugal?

A.

No, they are not. (Pintiano-Anno v. Anno, G.R. No. 163743, January 27, 2006, 480
SCRA 419)
Art. 117. The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the
expense of the common fund, whether the acquisition be for the
partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of
either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during
the marriage from the common property, as well as the net
fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the
treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in
excess of the number of each kind brought to the marriage by
either spouse; and
(7) Those which are acquired by chance, such as winnings from
gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse. (153a, 154a, 155, 159)

Q.

What consists of conjugal property?

A.

The following are conjugal partnership properties:


(1) Those acquired by onerous title during the marriage at the expense of the
common fund, whether the acquisition be for the partnership, or for only one of
the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of
the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from
the common property, as well as the net fruits from the exclusive property of
each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the
finder or owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the
number of each kind brought to the marriage by either spouse; and

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(7) Those which are acquired by chance, such as winnings from gambling or
betting. However, losses therefrom shall be borne exclusively by the loserspouse. (153a, 154a, 155, 159)
Q.

Spouses A and B finance a contract through their conjugal partnership of gains. A


third person C unduly breaches the contract. Are damages granted by the courts in
favor of any of the spouses conjugal?

A.

Yes (Zulueta v. Pan American World Airways, Inc., 49 SCRA 1)

Q.

The exclusive property of spouse A was illegally detained. Are the damages arising
out of such illegal detention conjugal?

A.

Yes, if such detention deprived the partnership of the use and earnings of the same.
(Bismorte v. Aldecoa, 17 Phil. 480)

Q.

Spouse A was physically injured by a third person C. Damages were awarded to A.


Is the damages conjugal?

A.

No, said damages exclusively belong to the said injured spouse. (Lilius v. Manila
Railroad Co., 62 Phil. 56, 64-65, cited in Zulueta v. Pan American World Airways,
Inc., 49 SCRA 1)

Q.

What is the significance of using the term net fruits?

A.

Net fruits are referred to because the fruits of the separate property will be
applied first to the expenses of administration of the said separate property and the
remaining balance of the said fruits which constitute the net fruits shall be
considered conjugal (See Minutes of the 174th Joint Meeting of the Civil Code and
Family Law committees held on February 28, 1987, page 13)

Q.

What is the meaning of hidden treasure?

A.

Hidden treasure contemplates artifacts or objects which have undergone


transformation from their original raw state, such as earrings, necklace and the
like.

Q.
A.

Are gold nuggets, precious stones in the raw state, oil and the like hidden
treasures?
No, because they did not undergo transformation from their original raw state.

Q.

Who bears the losses from gambling or betting?

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Losses shall be borne exclusively by the loser-spouse.


Art. 118. Property bought on installments paid partly from
exclusive funds of either or both spouses and partly from conjugal
funds belongs to the buyer or buyers if full ownership was vested
before the marriage and to the conjugal partnership if such
ownership was vested during the marriage. In either case, any
amount advanced by the partnership or by either or both spouses
shall be reimbursed by the owner or owners upon liquidation of the
partnership. (n)

Q.

What does Article 118 contemplate?

A.

It contemplates a situation when installment was initiated prior to the marriage


and ended during the marriage.

Q.

How is ownership determined when property is bought on installment basis partly


by exclusive funds of either or both spouses and partly by conjugal funds?

A.

The ownership is determined by the time when the title is vested. If ownership is
vested before the marriage, it belongs to the class of properties exempted from
conjugal partnership as property brought to the marriage by the spouses. However,
if ownership is vested upon the buyer-spouse after the marriage ceremony, it shall
form part of the conjugal partnership and the spouse who contracted the purchase
shall have the right of reimbursement from the partnership.

Q.

Spouse A bought friar lands before her marriage. However, some of the
installments were paid for with the conjugal funds during their marriage. Is the
conjugal partnership entitled to the land?

A.

No, the conjugal funds would only be entitled to reimbursement for the expense
(Lorenzo v. Nicolas, 91 Phil. 686). Under the Friar Lands Act No. 1120, the
equitable and beneficial title to the land passes to the purchaser the moment the
first installment is paid and a certificate of sale is issued. (Alvarez v. Espiritu, 14
SCRA 892, citing Director of Lands v. Rizal, 87 Phil. 806)

Q.

A property was bought during the marriage. The purchase was funded partly by
the exclusive money of either or both of the spouses and partly by conjugal funds.
Should the property be deemed both paraphernal and conjugal in proportion to the
contributions of each?

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In the case of Castillo, Jr. v. Pasco, 11 SCRA 102, the Supreme Court decided that
the property should be considered as both paraphernal and conjugal, taking in
consideration the contributions of each to the total purchase price.
However, the applicability of the above jurisprudence may be questioned right now
in view of Article 118. Clearly, the reason is to give life to the states public policy of,
as much as possible creating a unified ownership of properties between husband
and wife during the time of marriage. While Article 118 contemplates a situation
where the property was bought prior to the marriage, the public policy sought to be
achieved by the said provision must with more reason, necessarily be carried into
effect also in cases where the property was purchased at the time when the parties
are already and legally married.
If it is bought partly by conjugal funds and partly by separate funds, it cannot be
said to be exclusively bought by the exclusive money of either of the spouses and
therefore, the property so bought should be considered conjugal, subject to the same
reimbursement scheme under the last sentence of Article 118.
Art. 119. Whenever an amount or credit payable within a period of
time belongs to one of the spouses, the sums which may be
collected during the marriage in partial payments or by
installments on the principal shall be the exclusive property of the
spouse. However, interests falling due during the marriage on the
principal shall belong to the conjugal partnership. (156a, 157a)

Q.

What does Article 119 contemplate?

A.

It contemplates a situation where one of the spouses has in his or her favor, a credit
payable in installments or, in any case, a credit which will be fully paid during the
marriage. Article 119 provides that in such instances, all payments made on the
principal during the marriage shall belong exclusively to the spouse who owns the
credit.

Q.

Will interests falling due during the marriage belong exclusively to the spouse who
owns the credit?

A.

No, the second sentence of Article 119 specifically provides that interests falling due
during the marriage on the principal shall belong to the conjugal partnership.
Art. 120. The ownership of improvements, whether for utility or
adornment, made on the separate property of the spouses at the
expense of the partnership or through the acts or efforts of either
or both spouses shall pertain to the conjugal partnership, or to the
original owner-spouse, subject to the following rules:

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When the cost of the improvement made by the conjugal


partnership and any resulting increase in value are more than the
value of the property at the time of the improvement, the entire
property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property
of the owner-spouse at the time of the improvement; otherwise,
said property shall be retained in ownership by the owner-spouse,
likewise subject to reimbursement of the cost of the improvement.
In either case, the ownership of the entire property shall be vested
upon the reimbursement, which shall be made at the time of the
liquidation of the conjugal partnership. (158a)
Q.

When an improvement is made on a separate property at the expense of the


partnership, to who shall the improvement and property belong?

A.

It depends. If the value of the improvement and any resulting increase in value are
more than the value of the separate property at the time of improvement, the entire
property shall belong to the conjugal partnership. But ownership shall vest only
upon reimbursement to the owner-spouse. If the value of the improvement and any
resulting increase in value are not more than the value of the separate property at
the time of improvement, the property shall be retained by the owner-spouse,
subject to reimbursement of the cost of improvement.

Q.

When shall reimbursement be made?

A.

Reimbursement shall be made at the time of the liquidation of the conjugal


partnership.

Section 4
Charges Upon and Obligations of the Conjugal
Partnership
Art. 121. The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the
legitimate children of either spouse; however, the support of
illegitimate children shall be governed by the provisions of this
Code on Support;
(2) All debts and obligations contracted during the marriage by the
designated administrator-spouse for the benefit of the conjugal

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partnership of gains, or by both spouses or by one of them with


the consent of the other;
(3) Debts and obligations contracted by either spouse without the
consent of the other to the extent that the family may have
benefited;
(4) All taxes, liens, charges, and expenses, including major or minor
repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the
marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a
professional, vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in
favor of their common legitimate children for the exclusive
purpose of commencing or completing a professional or
vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is
found to groundless.
If the conjugal partnership is insufficient to cover the foregoing
liabilities, the spouses shall be solidarily liable for the unpaid
balance with their separate properties. (161a)
Q.

What are the charges upon and obligations of the conjugal partnership?

A.

The conjugal partnership shall be liable for:


(1) The support of the spouse, their common children, and the legitimate children of
either spouse; however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
(2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the
other to the extent that the family may have benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon
the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon
the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional,
vocational, or other activity for self-improvement;
(7) Ante-nuptial debts of either spouse insofar as they have redounded to the
benefit of the family;

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(8) The value of what is donated or promised by both spouses in favor of their
common legitimate children for the exclusive purpose of commencing or completing
a professional or vocational course or other activity for self-improvement; and
(9) Expenses of litigation between the spouses unless the suit is found to
groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the
spouses shall be solidarily liable for the unpaid balance with their separate
properties. (161a)
Q.

Are liabilities always chargeable to the conjugal partnership?

A.

No, liabilities shall only be chargeable to the conjugal partnership if it benefits the
same.

Q.

Can creditors of a third person go against the conjugal partnership property if one
of the spouses is the surety?

A.

No, a husband acting as guarantor or surety for another does not act for the benefit
of the conjugal partnership. A contrary view would put in peril the conjugal
partnership property by allowing it to be given gratuitously as in cases of donation
of conjugal partnership property which is prohibited. (Ayala Investment &
Development Corp. v. Court of Appeals, G.R. No. 118305, February 12, 1998)

Q.

Can creditors go against the conjugal partnership property if both the husband and
the wife are sureties of a third person?
Yes, if both spouses signed the surety agreement, then the conjugal partnership is
liable.

A.
Q.

Is the signature of one of the spouses as a mere witness and not as a party to the
contract indicative of her implied consent to a contract executed by the other
spouse?

A.

Yes. (Pelayo v. Perez, G.R. No. 141323, June 8, 2005).

Q.

Who has the burden of proof to show that the liability redounded to the benefit of
the family?

A.

The burden of proof must be on the person claiming it. (Homeowners Savings and
Loan Bank v. Dalio, G.R. No. 153802, March 11, 2005, 453 SCRA 283)

Q.

A husband is the administrator of a commercial enterprise. Debts are incurred by


the husband for gain or in exercise of the industry or profession by which he

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contributes to the support of the family. Are such debts chargeable to the conjugal
partnership?
A.

Yes, the conjugal partnership of gains shall be liable. (Cobb-Perez v. Lantin, 23


SCRA 637; Abella de Diaz v. Erlanger and Galinger, 56 Phil. 326; Javier v.
Osmena, 34 Phil. 336)

Q.

What happens if the conjugal partnership is insufficient to cover the debts and
obligations enumerated in Article 121?

A.

The creditors may demand payment from either or any of the spouses with their
respective separate properties. He or she who made the payment may claim from
his or her spouse only the share which corresponds to each, with the interest for the
payment already due. If the payment is made before the debt is due, no interest for
the intervening period may be demanded (Article 1217 of the Civil Code).

Q.

When can the separate properties of the spouses be solidarily held liable?

A.

(1) If the conjugal partnership is insufficient to cover the debts and obligations
enumerated in Article 121.
(2) If the spouses expressly made themselves liable in a solidary manner in any
obligation contracted by them for the benefit of the conjugal partnership of gains.

Q.

Can the assignee take possession of the conjugal partnership property for the
payment of the insolvent debtors obligations?

A.

No, except insofar as it has redounded to the benefit of the family. (Article 2238)
Art. 122. The payment of personal debts contracted by the husband
or the wife before or during the marriage shall not be charged to
the conjugal partnership except insofar as they redounded to the
benefit of the family.
Neither shall the fines and pecuniary indemnities imposed upon
them be charged to the partnership.
However, the payment of personal debts contracted by either
spouse before the marriage, that of fines and indemnities imposed
upon them, as well as the support of illegitimate children of either
spouse, may be enforced against the partnership assets after the
responsibilities enumerated in the preceding Article have been
covered, if the spouse who is bound should have no exclusive
property or if it should be insufficient; but at the time of the

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liquidation of the partnership, such spouse shall be charged for


what has been paid for the purpose above-mentioned. (163a)
Q.

Are payments of personal debts contracted by one spouse before or during the
marriage, fines and indemnities imposed upon them chargeable to the conjugal
partnership?

A.

As a general rule, no. However, if it redounded to the benefit of the family, it shall
be chargeable to the conjugal partnership. Also, the payment of the personal debts
contracted by either spouse before the marriage, that of fines and indemnities
imposed upon them, as well as the support of illegitimate children of either spouse,
may be enforced against the partnership assets after the responsibilities in Article
121 have been covered, if the spouse who is bound should have no exclusive
property or if it should be insufficient. However, at the time of the liquidation of the
partnership, such spouse shall be charged for what has been paid for.

Q.

What must be shown so that the payment of the personal debts contracted by
either spouse before the marriage, that of fines and indemnities imposed upon
them, as well as the support of illegitimate children of either spouse, may be
enforced against the partnership assets?

A.

It must be shown that the obligations under Article 121 have been covered and that
the debtor-spouse has insufficient or not exclusive properties to pay the debt or
obligation involved.

Q.

What is the difference between the conjugal partnership of gains and the absolute
community regime in terms of liabilities and obligations?

A.

The conjugal partnership is liable for the personal debts, fines and indemnities of
either spouse only after payment of all the liabilities of the conjugal partnership as
enumerated under Article 121 are covered and when the separate property of the
spouse is insufficient. Under the absolute community regime, such liabilities may
be charged against the community in case the separate property of the spouse is
insufficient, without the need for payment of all the liabilities of the absolute
community property.
Art. 123. Whatever may be lost during the marriage in any game of
chance or in betting, sweepstakes, or any other kind of gambling
whether permitted or prohibited by law, shall be borne by the loser
and shall not be charged to the conjugal partnership but any
winnings therefrom shall form part of the conjugal partnership
property. (164a)

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Q.

Who bears the loss in a game of chance, betting, sweepstakes or any other kind of
gambling?

A.

The loser. It shall not be charged to the conjugal partnership.

Q.

Who gains the winnings in a game of chance, betting, sweepstakes or any other
kind of gambling?

A.

The conjugal partnership property, regardless of which of the spouses won.


Section 5. Administration of the Conjugal Partnership Property
Art. 124. The administration and enjoyment of the conjugal
partnership shall belong to both spouses jointly. In case of
disagreement, the husband's decision shall prevail, subject to
recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract
implementing such decision.
In the event that one spouse is incapacitated or otherwise unable
to participate in the administration of the conjugal properties, the
other spouse may assume sole powers of administration. These
powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be
construed as a continuing offer on the part of the consenting
spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization
by the court before the offer is withdrawn by either or both
offerors. (165a)
Art. 125. Neither spouse may donate any conjugal partnership
property without the consent of the other. However, either spouse
may, without the consent of the other, make moderate donations
from the conjugal partnership property for charity or on occasions
of family rejoicing or family distress. (174a)

Q.

Is the rule for conjugal partnership of gains and absolute community of property
the same with regard to administration of the properties?

A.

Yes, Articles 124 and 125, pertaining to conjugal partnership of gains and Articles
96 and 98, pertaining to absolute community property are exactly identical.

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Q.

To whom shall the administration and enjoyment of the conjugal partnership


belong?

A.

To both spouses jointly.

Q.

What happens in case of disagreement of the spouses with regard to the


administration and enjoyment of the conjugal partnership?

A.

The husband's decision shall prevail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five years from the date of the
contract implementing such decision.

Q.

What happens to the administration of the conjugal properties in the event that
one spouse is incapacitated or unable to participate in such administration?

A.

The other spouse may assume sole powers of administration.

Q.

Does this mean that the spouse having sole powers of administration may
encumber or dispose the properties?

A.

No, the powers do not include disposition or encumbrance without authority of the
court or the written consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void. However, the transaction
shall be construed as a continuing offer on the part of the consenting spouse and
the third person, and may be perfected as a binding contract upon the acceptance
by the other spouse or authorization by the court before the offer is withdrawn by
either or both offerors.

Q.

If the marriage settlement provides for the conjugal partnership of gains as


governing the property relationship within a marriage, but the same stipulates
that the sharing will not be equal upon liquidation, will such unequal sharing affect
the administration?

A.

No, such unequal sharing will not affect the joint administration of the spouses
during the marriage which places the spouses in equal footing, unless otherwise
agreed upon also in the marriage settlement (See Minutes of the 173rd Joint
Meeting of the Civil Code and Family Law committees held on February 21, 1987,
page 13).

Q.

Are alienations of conjugal partnership property made by one spouse valid?

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A.

No, any alienation made by one spouse without the knowledge and consent of the
other is invalid. (Homeowners Savings & Loans Bank v. Dialo, G.R. No. 153802,
March 11, 2005, 453 SCRA 283; Bautista v. Silva, G.R. No. 157434, September 19,
2006, 502 SCRA 334)

Q.

If the sale of the conjugal partnership property done by the husband was with the
knowledge but without the approval of the wife, is the sale valid?

A.

The sale is voidable at the instance of the wife who is given five (5) years from the
date of the contract implementing the decision of the husband to institute the case
(Ravina v. Abrille, G.R. No. 160708, October 16, 2009)

Q.

If an act of administration is with the knowledge but without the consent of the
wife, is the contract valid?
Yes, the contract is merely rescissible at the instance of the wife and she can
question the transaction in court within five (5) years from the implementation of
the contract.

A.

Q.

In case the buyers knew that the property formed part of conjugal partnership
property but they bought it from the husband only without the consent of the wife,
is the sale valid?

A.

No, the sale is totally void. However, because of the doctrine of unjust enrichment,
the purchase price had to be returned to the buyers with interest (Onesiforo v.
Alinas, G.R. No. 158040, April 14, 2008)

Q.

What is the nature of the proceedings when the wife seeks to annul the husbands
decision in the administration and enjoyment of the conjugal property?

A.

Summary procedure pursuant to Title XI (Articles 238 up to 253) of the Family


Code shall apply.

Section 6
Dissolution of Conjugal Partnership Regime
Art. 126. The conjugal partnership terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled or declared void; or
(4) In case of judicial separation of property during the marriage
under Articles 134 to 138. (175a)

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Q.

How does the conjugal partnership terminate?

A.

Through the death of either spouse, a decree of legal separation, a decree of


annulment or nullity, or judicial separation of property.

Q.

Will partnership rules apply upon the dissolution of the conjugal partnership?

A.

No. Upon termination, the conjugal partnership immediately ceases to exist. (Nable
Jose v. Nable Jose, 41 Phil. 713)
Art. 127. The separation in fact between husband and wife shall not
affect the regime of conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live
therein, without just cause, shall not have the right to be
supported;
(2) When the consent of one spouse to any transaction of the other
is required by law, judicial authorization shall be obtained in a
summary proceeding;
(3) In the absence of sufficient conjugal partnership property, the
separate property of both spouses shall be solidarily liable for
the support of the family. The spouse present shall, upon
petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the
other spouse and use the fruits or proceeds thereof to satisfy the
latter's share. (178a)

Q.
If one spouse leaves the conjugal home without just case, is he or she entitled to
support?
A.

No.

Q.

In case of separation in fact, how is consent to a conjugal transaction acquired?

A.

Through a judicial authorization obtained in a summary proceeding.

Q.

In case of separation in fact and the property of the absent spouse is necessary in
order to support the family, how is his separate property sold or encumbered?

A.

Through judicial authorization.

Q.

Is the conjugal partnership liable if a spouse who leaves the conjugal home incurs
a debt for the benefit of the family?

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Yes. Their separation in fact will not justify the non-liability of the
property. (Garcia v. Cruz, 25 SCRA 225)

community

Art. 128. If a spouse without just cause abandons the other or fails
to comply with his or her obligation to the family, the aggrieved
spouse may petition the court for receivership, for judicial
separation of property, or for authority to be the sole administrator
of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding
paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when he or she
has left the conjugal dwelling without intention of returning. The
spouse who has left the conjugal dwelling for a period of three
months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal
dwelling. (167a, 191a)
Q.

What is the essence of abandonment?

A.

Abandonment implies a departure by one spouse with the avowed intent never to
return, followed by prolonged absence without just cause, and without in the
meantime providing in the lease for ones family although able
to do so.
There must be absolute cessation of marital relations, duties, and
rights with
the intention of perpetual separation.

Q.
A.

Statutorily, when is a spouse deemed to have abandoned the other?


When he or she has left the conjugal dwelling without intention of returning.

Q.

When does a prima facie presumption of abandonment arise?

A.

When a spouse leaves the conjugal dwelling for a period of three months or has
failed within the same period to give any information as to his or her whereabouts.

Q.

Does mere physical estrangement constitute abandonment?

A.

No. There must be financial and moral desertation as well. (Dela Cruz v. Dela
Cruz, 130 Phil. 324)

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Q.

What are the remedies of the aggrieved spouse in case of abandonment?

A.

Receivership, judicial separation of property, and authority to be the sole


administrator of the conjugal partnership.

Q.

Any limitations?

A.

Subject to such precautionary measures as the court may impose.

Q.
Do these rules likewise apply in case of failure to comply with obligations to the
family?
A.

Yes.

Q.

Specifically, what are the obligations to the family being referred to?

A.

Marital, parental or property obligations.

Section 7
Liquidation of the
Conjugal Partnership
Assets and Liabilities
Art. 129. Upon the dissolution of the conjugal partnership regime,
the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of
personal debts and obligations of either spouse shall be credited
to the conjugal partnership as an asset thereof.

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(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value of
his or her exclusive property, the ownership of which has been
vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be
paid out of the conjugal assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties, in accordance with the
provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever source,
the loss or deterioration of movables used for the benefit of the
family, belonging to either spouse, even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between
husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as provided
in this Code.
(8) The presumptive legitimes of the common children shall be
delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and the
lot on which it is situated shall, unless otherwise agreed upon by
the parties, be adjudicated to the spouse with whom the
majority of the common children choose to remain. Children
below the age of seven years are deemed to have chosen the
mother, unless the court has decided otherwise. In case there is
no such majority, the court shall decide, taking into
consideration the best interests of said children. (181a, 182a,
183a, 184a, 185a)
Q.

What is the step by step procedure in dissolution?

A.

See article 129.

Q.

What are the modes of liquidating the conjugal partnership?

A.

Extrajudicial settlement, partition, testate proceedings, and intestate proceedings.


(Villocino v. Doyon , 63 SCRA 460)

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164

Q.

In the inventory, what value is taken into consideration?

A.

The market value and, in the default thereof the assessed value at the time of
liquidation. (Prado v. Natividad, 47 Phil. 775)

Q.

Is the initial determination of the value fixed?

A.

No. If the proceedings take a long time and the values assessed are substantially
altered, a new valuation can be made. (Padilla v. Paterno, 93 Phil. 884)

Q.

How are amounts advanced by the conjugal partnership to the spouses treated?

A.

They are treated as assets.

Q.

In the payment of partnership debts and obligations, what is paid first?

A.

Advances made by either spouse in favor of the conjugal partnership are paid
first.

Q.

In the absence of stipulation or a valid waiver, how will the net remainder be
shared by the spouses?

A.

Equally.

Q.

In what instances is the presumptive legitime delivered?

A.

In case of annulment of marriage under Article 45 or nullity under Article 40.

Q.

Which spouse retains possession of the conjugal dwelling?

A.

The spouse with whom majority of the children remain.


Art. 130. Upon the termination of the marriage by death, the
conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either
judicially or extra-judicially within six months from the death of
the deceased spouse. If upon the lapse of the six-month period no
liquidation is made, any disposition or encumbrance involving the
conjugal partnership property of the terminated marriage shall be
void.

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165

Should the surviving spouse contract a subsequent marriage


without compliance with the foregoing requirements, a mandatory
regime of complete separation of property shall govern the
property relations of the subsequent marriage. (n)
Q.

In case of termination of the marriage by death, where shall the conjugal


partnership property be liquidated?

A.

In the settlement of the estate of the deceased.

Q.

What if settlement proceedings are not instituted?

A.

Judicial or extrajudicial liquidation within one year from death.

Q.

What if there is no liquidation within one year from death?

A.

Any disposition or encumbrance involving the conjugal partnership shall be void.

Q.

What if the surviving spouse remarries without liquidating assets of the


conjugal partnership?

A.

Complete separation of property governs the property relations of the


subsequent marriage.

Q.

A and B are married. A dies. A parcel of land is in Bs name but Bs civil


status
is described as married. Should the property be treated as separate or conjugal?

A.

Separate. In the absence of proof that the property was acquired during the
marriage, the property shall be considered as owned by the person stated in
the certificate. (Estonia v. Court of Appeals, 266 SCRA 627)
Art. 131. Whenever the liquidation of the conjugal partnership
properties of two or more marriages contracted by the same person
before the effectivity of this Code is carried out simultaneously, the
respective capital, fruits and income of each partnership shall be
determined upon such proof as may be considered according to the
rules of evidence. In case of doubt as to which partnership the
existing properties belong, the same shall be divided between the
different partnerships in proportion to the capital and duration of
each. (189a)

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166

Q.

In case a person has had two marriages and the properties of both marriages
are being liquidated simultaneously, how is the liquidation carried out?

A.

The capital, fruits and income shall pertain to the marriage where they were
respectively acquired.

Q.

What if there is doubt as to which marriage the capital fruits and income
belong?

A.

They shall be apportioned in proportion to the capital and duration of each.


(For further illustrations, see the five scenarios under Article 104).
Art. 132. The Rules of Court on the administration of estates of
deceased persons shall be observed in the appraisal and sale of
property of the conjugal partnership, and other matters which are
not expressly determined in this Chapter. (187a)

Q.

In cases of appraisal and sale of property, what rules govern?

A.

The Rules of Court.


Art. 133. From the common mass of property support shall be given
to the surviving spouse and to the children during the liquidation
of the inventoried property and until what belongs to them is
delivered; but from this shall be deducted that amount received for
support which exceeds the fruits or rents pertaining to them. (188a)

Q.

During the liquidation, who can claim support from the common mass of property?

A.

Only the surviving spouse and the children.

Q.

Is this enumeration exclusive?

A.

Yes. (Babao v. Villavicencio, 44 Phil. 921)

Q.

What if the children are already of age, gainfully employed, or married?

A.

They can still claim support. (Santero v CFI, 153 SCRA 728)

Q.

How is the maintenance and support taken by a widow from the conjugal
partnership treated?

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167

It is treated as an advance to be deducted from her share in the final distribution.


(Santos v. Bartolome, 44 Phil. 76)

Chapter 5.
Separation of Property of the
Spouses and Administration of Common
Property by One Spouse During the Marriage
Art. 134. In the absence of an express declaration in the marriage
settlements, the separation of property between spouses during the
marriage shall not take place except by judicial order. Such judicial
separation of property may either be voluntary or for sufficient
cause. (190a)
Q.

What are the ways for a separation of property to exist?

A.

Marriage settlement or judicial order.

Q.

How will a judicial order be obtained?

A.

Voluntarily or for a sufficient cause.


Art. 135. Any of the following shall be considered sufficient cause
for judicial separation of property:
(1) That the spouse of the petitioner has been sentenced to a
penalty which carries with it civil interdiction;
(2) That the spouse of the petitioner has been judicially declared an
absentee;
(3) That loss of parental authority of the spouse of petitioner has
been decreed by the court;
(4) That the spouse of the petitioner has abandoned the latter or
failed to comply with his or her obligations to the family as
provided for in Article 101;
(5) That the spouse granted the power of administration in the
marriage settlements has abused that power; and

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of Common Property by One Spouse During the Marriage

(6) That at the time of the petition, the spouses have been separated
in fact for at least one year and reconciliation is highly
improbable.
In the cases provided for in Numbers (1), (2) and (3), the
presentation of the final judgment against the guilty or absent
spouse shall be enough basis for the grant of the decree of judicial
separation of property. (191a)
Q.

What are the grounds for a judicial separation of property?

A.

See Article 135.

Q.

When can a declaration of absence be sought?

A.

Two years having elapsed without any news about the absentee or since the receipt
of the last news.

Q.

What if he left a person in charge of the administration of his property?

A.

The period is extended to five years.

Q.

When will the judicial declaration of absence take effect?

A.

Six months after publication.

Q.

Loss of parental authority refers to which child?

A.

Common child whether legitimate or illegitimate or a child with another


whether legitimate or illegitimate.

Q.

What constitutes abuse of administration?

A.

Abuse connotes willful and utter disregard of the interests of the partnership,
evidenced by a repetition of deliberate acts and/or omissions prejudicial to the
latter. (Dela Cruz v. Dela Cruz, 130 Phil. 342)

Q.

Will mere refusal or failure of the husband to inform the wife of the progress
of the family business constitute abuse?

A.

No. (Dela Cruz v. Dela Cruz, 130 Phil. 342)

person

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of Common Property by One Spouse During the Marriage

Q.

Will the simple performance of an act or acts prejudicial to the other spouse
constitute abuse?

A.

No.

Q.

Will mere separation in fact constitute a ground for judicial separation of property?

A.

No. They must have been separated in fact for at least one year and reconciliation
must be highly improbable.
Art. 136. The spouses may jointly file a verified petition with the
court for the voluntary dissolution of the absolute community or
the conjugal partnership of gains, and for the separation of their
common properties.
All creditors of the absolute community or of the conjugal
partnership of gains, as well as the personal creditors of the spouse,
shall be listed in the petition and notified of the filing thereof. The
court shall take measures to protect the creditors and other
persons with pecuniary interest. (191a)

Q.

What is the default sharing between the spouses?

A.

Equal sharing.

Q.

What are the exceptions?

A.

Agreement to the contrary or a valid waiver.

Q.

What is the exception to the exception?

A.

If the agreement or waiver is against public policy.

Q.

Will the failure to notify the creditors nullify the judicial order?

A.

No.

Q.

When will the separation of property take effect?

A.

From the time of the issuance of the decree.

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of Common Property by One Spouse During the Marriage

Art. 137. Once the separation of property has been decreed, the
absolute community or the conjugal partnership of gains shall be
liquidated in conformity with this Code.
During the pendency of the proceedings for separation of property,
the absolute community or the conjugal partnership shall pay for
the support of the spouses and their children. (192a)
Q.

What process must be followed in the liquidation of the property regime?

A.

The process laid down in Article 102 and Article 129 must be observed. However
the delivery of the presumptive legitime is no necessary because such delivery
applies only in case the marriage is either judicially annulled under Article 45 or
declared void under Article 40.

Q.

Is a partial voluntary separation of property agreed upon by the parties valid?

A.

Yes. (Maquilan v. Maquilan, 524 SCRA 167)


Art. 138. After dissolution of the absolute community or of the
conjugal partnership, the provisions on complete separation of
property shall apply. (191a)

Q.

What property relations results after the dissolution of the absolute community
property or the conjugal partnership?

A.

Complete Separation of Property.

Q.

Does the mere filing of the petition to initiate the proceeding automatically result in
the dissolution of the property regime?
No. Only after the finality of the decision of the court decreeing the separation.

A.

Art. 139. The petition for separation of property and the final
judgment granting the same shall be recorded in the proper local
civil registries and registries of property. (193a)
Art. 140. The separation of property shall not prejudice the rights
previously acquired by creditors. (194a)
Q.

What is the purpose of recording the petition for separation of property?

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of Common Property by One Spouse During the Marriage

A.

To aid present and future creditors in determining the whether an asset of a spouse
is conjugal or really separate.
Art. 141. The spouses may, in the same proceedings where
separation of property was decreed, file a motion in court for a
decree reviving the property regime that existed between them
before the separation of property in any of the following instances:
(1) When the civil interdiction terminates;
(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the
power of administration in the marriage settlements will not
again abuse that power, authorizes the resumption of said
administration;
(4) When the spouse who has left the conjugal home without a
decree of legal separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse
previously deprived thereof;
(6) When the spouses who have separated in fact for at least one
year, reconcile and resume common life; or
(7) When after voluntary dissolution of the absolute community of
property or conjugal partnership has been judicially decreed
upon the joint petition of the spouses, they agree to the revival
of the former property regime. No voluntary separation of
property may thereafter be granted.
The revival of the former property regime shall be governed by
Article 67. (195a)

Q.

What are the instances where the property regime that existed before the
separation of property is revived?

A.

(1) When the civil interdiction terminates;


(2) When the absentee spouse reappears;
(3) When the court, being satisfied that the spouse granted the power of
administration in the marriage settlements will not again abuse that power,
authorizes the resumption of said administration;
(4) When the spouse who has left the conjugal home without a decree of legal
separation resumes common life with the other;
(5) When parental authority is judicially restored to the spouse previously deprived
thereof;
(6) When the spouses who have separated in fact for at least one year, reconcile and
resume common life; or

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of Common Property by One Spouse During the Marriage

(7) When after voluntary dissolution of the absolute community of property or


conjugal partnership has been judicially decreed upon the joint petition of the
spouses, they agree to the revival of the former property regime. No voluntary
separation of property may thereafter be granted.
Q.

What are the procedural requirements to initiate the above said revival?

A.

To be able to revive the previous property regime, the spouses should file a motion
in the same court proceeding where the separation was decreed. The agreement to
revive the property regime shall be executed under oath and specify: (1) the
properties to be contributed anew to the restored regime; (2) those to be retained as
separate properties of each spouse; and (3) the names of all their known creditors,
their addresses and the amounts owing to each.
Art. 142. The administration of all classes of exclusive property of
either spouse may be transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from justice or is in
hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator. (n)

Q.

What are the instances where the administration of classes of exclusive property of
either spouse may be transferred by the court to the other spouse?

A.

(1) When one spouse becomes the guardian of the other;


(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil
interdiction; or
(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in
a criminal case.

Q.

What are the jurisprudential guidelines in determining a fugitive from justice?

A.

A fugitive from justice refers to one who having committed or being accused of a
crime in one jurisdiction is absent for any reason from that jurisdiction; specifically,
one who flees to avoid punishment. (Ochida v. Cabarraguis, 71 SCRA 40).

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of Common Property by One Spouse During the Marriage

Chapter 6. Regime of Separation of Property


Art. 143. Should the future spouses agree in the marriage settlements that
their property relations during marriage shall be governed by the regime
of separation of property, the provisions of this Chapter shall be
suppletory. (212a)
Q.

In a regime of separation of property what shall principally govern the regime?

A.

The marriage settlement. The Family Code shall only be suppletorily applied.
Art. 144. Separation of property may refer to present or future
property or both. It may be total or partial. In the latter case, the
property not agreed upon as separate shall pertain to the absolute
community. (213a)

Q.

If the separation of property pertains only to a partial amount of the property,


What property regime will apply to the other portion?

A.

It shall pertain to the absolute community.

Q.

Can the spouses agree that the regime of absolute community of property be
effective up to until their first year of marriage and the regime of separation of
property be applied thereafter?

A.

No. This is tantamount to dissolving the absolute community property by virtue of


a cause or contingency not provided by law.
Art. 145. Each spouse shall own, dispose of, possess, administer and
enjoy his or her own separate estate, without need of the consent of
the other. To each spouse shall belong all earnings from his or her
profession, business or industry and all fruits, natural, industrial or
civil, due or received during the marriage from his or her separate
property. (214a)

Q.

What belongs to each spouse in a regime of separation of property?

A.

To each spouse shall belong all earnings from his or her profession, business or
industry and all fruits, natural, industrial or civil, due or received during the
marriage from his or her separate property.

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Art. 146. Both spouses shall bear the family expenses in proportion
to their income, or, in case of insufficiency or default thereof, to the
current market value of their separate properties.
The liabilities of the spouses to creditors for family expenses shall,
however, be solidary. (215a)
Q.

What is the liability of the spouses to creditors for family expenses?

A.

Solidary.

Chapter 7
Property Regime of Unions Without Marriage
Art. 147. When a man and a woman who are capacitated to marry
each other, live exclusively with each other as husband and wife
without the benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry
shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained by
their joint efforts, work or industry, and shall be owned by them in
equal shares. For purposes of this Article, a party who did not
participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition
thereof if the former's efforts consisted in the care and
maintenance of the family and of the household.
Neither party can encumber or dispose by acts inter vivos of his or
her share in the property acquired during cohabitation and owned
in common, without the consent of the other, until after the
termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the
share of the party in bad faith in the co-ownership shall be forfeited
in favor of their common children. In case of default of or waiver by
any or all of the common children or their descendants, each

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vacant share shall belong to the respective surviving descendants.


In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon
termination of the cohabitation. (144a)
Q.

Who qualifies so that Art. 147 will apply?

A.

To qualify under Article 147, the man and the woman must: (1) must be
capacitated to marry each other; (2) live exclusively with each other as husband
and wife; and (3) be without the benefit of marriage or under a void marriage. All
these requisites must concur.

Q.

What is the structure of the property relationship under Article 147?

A.

(1) Wages and salaries shall be owned by them in equal shares;


(2) Property acquired by either of the parties exclusively by his or her own fund
belongs to such party provided that there is proof that he or she acquired it by
exclusive funds;
(3) Property acquired by both of them through their work or industry shall be
governed by the rules on co-ownership. Consequently, either spouse may alienate
in favor of the other his or her share in the property;
(4) In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this Article,
a party who did not participate in the acquisition by the other party of any property
shall be deemed to have contributed jointly in the acquisition thereof if the former's
efforts consisted in the care and maintenance of the family and of the household;
(5) The fruits of the couples separate property are not included in the co-ownership
(Valdes v. RTC, 260 SCRA 221);
(6) Property acquired by any of the parties after separation shall be exclusively
owned by the party who acquired it;
(7) Neither party can encumber or dispose by acts inter vivos of his or her share in
the property acquired during cohabitation and owned in common, without the
consent of the other, until after the termination of their cohabitation. However,
either spouse may alienate in favor of the other his or her share in the property coowned. But no one can donate or waive any interest in the co-ownership that would
constitute an indirect or direct grant of gratuitous advantage to the other which is
void pursuant to Art. 87;
(8)When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the co-ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the respective surviving

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descendants. In the absence of descendants, such share shall belong to the innocent
party. In all cases, the forfeiture shall take place upon termination of the
cohabitation.
Art. 148. In cases of cohabitation not falling under the preceding
Article, only the properties acquired by both of the parties through
their actual joint contribution of money, property, or industry shall
be owned by them in common in proportion to their respective
contributions. In the absence of proof to the contrary, their
contributions and corresponding shares are presumed to be equal.
The same rule and presumption shall apply to joint deposits of
money and evidences of credit.
If one of the parties is validly married to another, his or her share
in the co-ownership shall accrue to the absolute community or
conjugal partnership existing in such valid marriage. If the party
who acted in bad faith is not validly married to another, his or her
shall be forfeited in the manner provided in the last paragraph of
the preceding Article.
The foregoing rules on forfeiture shall likewise apply even if both
parties are in bad faith. (144a)
Q.

What relationships are contemplated under Art. 148?

A.

(1) A man and a woman living together as husband and wife, without the benefit of
marriage, but are not capacitated to marry;
(2) An adulterous relationship even if it occurred prior to the effectivity of the
Family Code (Atienza vs. De Castro, 508 SCRA 593).
(3) A bigamous or polygamous marriage;
(4) Incestuous void marriages under Art. 37; and
(5) Void Marriages by reason of public policy under Art. 38.

Q.

What is the structure of the property relationship under Art. 148?

A.

(1) The salaries and wages are separately owned by the parties and if any of the
spouses is married, his or her salary is the property of the conjugal partnership of
gains of such legitimate marriage;
(2) Property solely acquired by funds of any of the parties belongs to such party;
(3) Only the properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in common in
proportion to their respective contributions;

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(4) The respective shares of the parties over properties owned in common are
presumed to be equal. However, proofs may be shown to show that their
contribution and respective shares are not equal. Without proof of actual
contribution by both parties, there can be no presumption of co-ownership and
equal sharing (Villanueva v. Court of Appeals, G.R. No. 143286, April 14, 2004;
Rivera v. Heirs of Romualdo Villanueva, G.R. No. 141501, July 21, 2006, 496 SCRA
135).
(5) The rule and presumption mentioned above shall apply to joint deposits of
Money and evidences of credit; and
(6) If one of the parties is validly married to another, his or her share in the coownership shall accrue to the absolutes community or conjugal partnership existing
in such valid marriage. If the party who acted in bad faith is not validly married to
another, his or her share shall be forfeited in the manner provided in the last
paragraph of Article 147. The foregoing rules on forfeiture shall likewise apply even
if both parties are in bad faith.

TITLE V
THE FAMILY
Chapter 1
The Family as an Institution
Art. 149. The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and protects.
Consequently, family relations are governed by law and no custom,
practice or agreement destructive of the family shall be recognized
or given effect. (216a, 218a)
Q.

Husband and wife agrees to each have a paramour which will not be a ground to
invalidate the marriage. Is the agreement valid?

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Family as an Institution

A.

No. The agreement is void. No agreement which will be destructive to the family
shall not be recognized.
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.
(217a)

Q.

What does family relations include?

A.

1) Between husband and wife;


(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.
Art. 151. No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but that the
same have failed. If it is shown that no such efforts were in fact
made, the same case must be dismissed.
This shall not apply to cases which may not be the subject of
compromise under the Civil Code. (222a)

Q.

As a general rule, what is needed before a suit between members of the same
family will prosper?

A.

No suit between members of the same family shall prosper unless it should appear
from the verified complaint or petition that earnest efforts toward a compromise
have been made, but that the same have failed.

Q.

What is the exception to the above general rule?

A.

It is not required if included in the suit between family members is a stranger not
of the same family. This is so because the interest of the stranger differs from the
interest of the members of the same family. The rule will not also apply to cases
which may not be compromised under the Civil Code. These cases are enumerated
in Art. 2035. It also does not apply to special proceedings like a petition for
settlement of estate guardianship and custody of children, and habeas corpus.

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The Family Home

Chapter 2
The Family Home
Art. 152. The family home, constituted jointly by the husband and
the wife or by an unmarried head of a family, is the dwelling house
where they and their family reside, and the land on which it is
situated. (223a)
Art. 153. The family home is deemed constituted on a house and lot
from the time it is occupied as a family residence. From the time of
its constitution and so long as any of its beneficiaries actually
resides therein, the family home continues to be such and is exempt
from execution, forced sale or attachment except as hereinafter
provided and to the extent of the value allowed by law.
Q.

What is a family home?

A.

Article 152. An additional requirement is that the land and the dwelling house
must be owned by the person or persons constituting the family home.

Q.

When is a family home deemed constituted?

A.

Under the Family Code, a family home is deemed constituted on a house and land
from the time it is actually occupied as a family residence. (Arriola v. Arriola, G.R.
No. 177703, January 28, 2008, 542 SCRA 666) The occupancy must be actual and
not constructive, something which is merely possible or presumptive. (Patricio v.
Dario III, G.R. No. 170829, November 20, 2006)
Who can constitute a family home?

Q.
A.

Spouses must constitute a family home jointly. However, an unmarried head of the
family can constitute by himself or herself. The occupancy of any of the
beneficiaries can likewise constitute a home as a family home.

Q.

What is the period of exemption from execution?

A.

The exemption from execution, forced sale, or attachment provided by law is


effective from the time of the family home as such and lasts so long as any of its
beneficiaries actually resides therein. ( Modequillo v. Breva, 185 SCRA 766)

Q.

What is the characteristic of this right of exemption?

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The Family Home

A.

It is a personal right (Versola v. Court of Appeals, G.R. No. 164740, July 31, 2006,
497 SCRA 385). However it is not an absolute right as there obligations and
indebtedness excluded from the exemption as listed in Article 155. Article 160 also
gives a judgment creditor, whose credit is not included in Article 155, the option to
apply for the family homes execution if he or she has reasonable grounds to believe
that the family home is actually worth more than the maximum amount allowable
for a family home.
Art. 154. The beneficiaries of a family home are:
(1) The husband and wife, or an unmarried person who is the head
of a family; and
(2) Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are
living in the family home and who depend upon the head of the
family for legal support. (226a)

Q.

Who are the beneficiaries of a family home?

A.

Article 154

Q.

What is the importance of knowing the beneficiaries of a family home?

A.

Knowing the beneficiaries is important because their actual occupancy of a home


may constitute the same as a family home provided their actual occupancy of the
house and lot is with the consent either of the husband and/or the wife who own the
house and lot or of the unmarried person who is the head of the family and who
likewise owns the house and lot, even if said owners do not actually reside therein.
(Manacop v. Court of Appeals 27 SCRA 57)

Q.

What are the requisites to be a beneficiary?


A. 1) They must be among the relationships enumerated in Article 154. 2) They
actually live in the family home. 3) They are dependent for legal support upon the
head of the family.
Art. 155. The family home shall be exempt from execution, forced
sale or attachment except:
(1) For nonpayment of taxes;
(2) For debts incurred prior to the constitution of the family home;
(3) For debts secured by mortgages on the premises before or after
such constitution; and

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(4) For debts due to laborers, mechanics, architects, builders,


materialmen and others who have rendered service or furnished
material for the construction of the building. (243a)
Q.

How is the term debt to be understood under Article 155?


A. The term debt used in Article 155 is not qualified and must therefore be used
in its generic sense, i.e., obligations in general. A court judgment is not necessary
to clothe a pre-existing debt under Article 155 with the privileged character of being
enforceable against the family home.
Art. 156. The family home must be part of the properties of the
absolute community or the conjugal partnership, or of the
exclusive properties of either spouse with the latter's consent. It
may also be constituted by an unmarried head of a family on his or
her own property.
Nevertheless, property that is the subject of a conditional sale on
installments where ownership is reserved by the vendor only to
guarantee payment of the purchase price may be constituted as a
family home. (227a, 228a)

Q.

Where can a family home be constituted?

A.

A family home must be constituted at a place where there is a fixed and permanent
connection with the persons constituting it. It must be part of the absolute
community or the conjugal partnership, or of the exclusive properties of either
spouse with the latter's consent. It may also be constituted by an unmarried head of
a family on his or her own property.
Art. 157. The actual value of the family home shall not exceed, at
the time of its constitution, the amount of the three hundred
thousand pesos in urban areas, and two hundred thousand pesos in
rural areas, or such amounts as may hereafter be fixed by law.
In any event, if the value of the currency changes after the
adoption of this Code, the value most favorable for the constitution
of a family home shall be the basis of evaluation.
For purposes of this Article, urban areas are deemed to include
chartered cities and municipalities whose annual income at least

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equals that legally required for chartered cities. All others are
deemed to be rural areas. (231a)
Q.

When is this actual value of the family home examined?

A.

It is the value at the time of the constitution that is important. Hence, if after the
constitution, the value of the house increased due to improvements or renovations
to an amount more than that fixed by law at the time of the constitution, such
family home will remain a family home.
Art. 158. The family home may be sold, alienated, donated, assigned
or encumbered by the owner or owners thereof with the written
consent of the person constituting the same, the latter's spouse, and
a majority of the beneficiaries of legal age. In case of conflict, the
court shall decide. (235a)

Q.

Can the family home be sold or otherwise alienated? Under what conditions?

A.

The family home may be sold, alienated, donated, assigned or encumbered by the
owner or owners thereof with the written consent of the person constituting the
same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of
conflict, the court shall decide.
Art. 159. The family home shall continue despite the death of one or
both spouses or of the unmarried head of the family for a period of
ten years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds compelling
reasons therefor. This rule shall apply regardless of whoever owns
the property or constituted the family home. (238a)

Q.

Can the heirs partition the family home upon the death of the person who
constituted it?

A.

No. The family home shall continue as a family home for a period of 10 years or for
as long as there is a minor beneficiary. The heirs cannot partition the same unless
the court finds compelling reasons therefor. The Supreme Court found that though
a house and lot passed to the heirs because of the death of the father, it cannot be
immediately partitioned because of Article 159. Article 159 imposes the
proscription against the immediate partition of the family home regardless of its
ownership. (Arriola v. Arriola, 542 SCRA 666)

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Art. 160. When a creditor whose claims is not among those


mentioned in Article 155 obtains a judgment in his favor, and he
has reasonable grounds to believe that the family home is actually
worth more than the maximum amount fixed in Article 157, he may
apply to the court which rendered the judgment for an order
directing the sale of the property under execution. The court shall
so order if it finds that the actual value of the family home exceeds
the maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the maximum
allowed in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons constituting
the family home, by the owner or owners of the property, or by any
of the beneficiaries, the same rule and procedure shall apply.
At the execution sale, no bid below the value allowed for a family
home shall be considered. The proceeds shall be applied first to the
amount mentioned in Article 157, and then to the liabilities under
the judgment and the costs. The excess, if any, shall be delivered to
the judgment debtor. (247a, 248a)
Q.

What is the difference between claims under Article 155 and claims under Article
16

A.

Unlike Article 155, there is a need under Article 160 for a court decision before a
judgment creditor can avail of the privilege under Article 160 of the family code.
Also, the judgment creditor making a claim under Article 160 should not be one of
those mentioned in Article 155.
Art. 161. For purposes of availing of the benefits of a family home as
provided for in this Chapter, a person may constitute, or be the
beneficiary of, only one family home. (n)
Art. 162. The provisions in this Chapter shall also govern existing
family residences insofar as said provisions are applicable. (n)

Q.

What is the extent and legal significance of Article 162 of the Family Code?

A.

As discussed by the Supreme Court in Modequillo v. Breva, 185 SCRA 766, Article
162 does not mean that Articles 152 and 153 of the family code have a retroactive
effect such that all existing family residences are deemed to have been constituted
as family homes at the time of their occupation prior to the effectivity of the Family

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Code and are exempt from execution for the payment of obligations incurred before
the effectivity of the Family Code. Article 162 simply means that all existing family
residences at the time of the effectivity of the Family Code, are considered family
homes and are prospectively entitled to the benefits accorded to a family home
under the Family Code. Article 162 does not state that the provisions of Chapter 2,
Title V have a retroactive effect.

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TITLE VI
PATERNITY AND FILIATION
Chapter 1
Legitimate Children
Art.163. The filiation of children may be by nature or by adoption.
Natural filiation may be legitimate or illegitimate. (n)
Art.164. Children conceived or born during the marriage of the
parents are legitimate.
Children conceived as a result of artificial insemination of the wife
with the sperm of the husband or that of a donor or both are
likewise legitimate children of the husband and his wife, provided,
that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of
the child. The instrument shall be recorded in the civil registry
together with the birth certificate of the child. (55a, 258a)
Art. 165. Children conceived and born outside a valid marriage are
illegitimate, unless otherwise provided in this Code.
Q.

What are the requirements for a child conceived as a result of artificial


insemination to be recognized as legitimate?

A.

Children conceived as a result of artificial insemination of the wife


with
the
sperm of the husband or that of a donor or both are likewise legitimate children
provided
that: a) both of them authorized or ratified such insemination in a
written
instrument executed and signed by them before the birth of the child;
and b) the
instrument shall be recorded in the civil registry together with the
birth certificate
of the child.

Q.
In recognizing children conceived as a result of artificial insemination, does it
mean then that the Code gave legality to such process?
A.

No. We are not concerned with the legality or illegality of artificial insemination.
We are not concerned with the morality or immorality of it. But we are concerned of
the
status of the child born of that fact. (Justice Caguioa, Hearing on
Committee on
Women and Family Relations of the Senate, 1988)

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Q.

What are the two types of artificial insemination?

A.

Homologous and Heterologous. Homologous insemination is the process by which


the wife is artificially impregnated with the semen of her husband. This procedure
is
referred to as AIH (Artificial Insemination Husband). Heterologous
insemination is
the artificial insemination of the wife by the semen of a thirdparty donor (Artificial
Insemination Donor).

Q.
the

Does the wife, who conceived a child as a result of artificial insemination without
consent of his husband, liable for adultery?

A.

No. A wife who, without consent of the husband, had herself artificially
inseminated by the semen of another which led to the siring of a child not of the
husband, cannot be held criminally liable for adultery. The crime of adultery has
been defined in Article 333 of the Revised Penal Code as committed by any married
woman who shall have sexual intercourse with a man not her husband. Artificial
insemination, nevertheless, does not involve sexual intercourse which is one of the
essential elements in the crime of adultery in the Revised Penal Code. (U.S. v. Abad
Santos, 36 Phil. 243; People v. Yu Huat, 99 Phil. 728)
Art. 166. Legitimacy of a child may be impugned only on the
following grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days
which immediately preceded the birth of the child because
of:
(a) the physical incapacity of the husband to have sexual
intercourse rith his wife;
(b) the fact that the husband and wife were living separately
in such a way that sexual intercourse was not possible; or
(c) serious illness of the husband, which absolutely prevented
sexual intercourse;
(2) That it is proved that for biological or other scientific reasons,
the child could not have been that of the husband, except in
the instance provided in the
second paragraph of Article
164;
or
(3) That in case of children conceived through artificial
insemination, the written authorization or ratification of either
parent was obtained through mistake, fraud, violence,

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187

or undue influence. (255a)

Art. 167. The child shall be considered legitimate although the


mother may have declared against its legitimacy or may have been
sentenced as an adulteress. (256a)
Q.

When is Article 166 applicable?

A.

Article 166 necessarily presupposes a valid marriage between the husband and the
wife.

Q.

Who can invoke the grounds under article 166?

A.

Only the husband and, in proper cases provided in Article 171, the heirs can invoke
the grounds under Article 166. No other person can make the same.

Q.

What is the exception to the rule that the legitimacy of the child can likewise be
questioned on the ground that the marriage between the husband and wife is void?

A.

If the ground for nullity is article 36 or Article 53 of the Family Code.

Q.
be

In any event that any of the grounds enumerated in Article 166 is proven, what will
the status of the child?

A.

The child will neither be legitimate nor illegitimate in so far as the husband is
concerned. Simply, the husband and the child will not be related to each other in
any manner considering that the husband did not participate in any way as to the
childs procreation. In so far as the mother is concerned, the child will be illegitimate.
Q.

Where does Articles 166 and 167 necessarily apply?

A.
Only to a situation where the child has been delivered by a woman who is the
childs natural mother. They do nt apply where the alleged mother did not, in fact, deliver
the
child herself, or, in short, where the child did not come from her own womb. This is
likewise a condition sine qua non for Articles 166 and 167 to apply.
Q.
Is it correct to rely on Articles 164, 166, 167, 170 and 171 in opposing a personss
claim to be the only daughter of the deceased married couple whose estate was under
consideration?
A.

No. The articles do not contemplate a situation, like in the instant case, where a
child is alleged not to be the child of nature or biological child of a certain couple.
Rather,
these articles govern a situaton where a husband (or his heirs) denies
as his own a child of his wife. (Benitez-Badua v. Court of Appeals, G.R. No.
105625, January 24,
1994, 47 SCAD 416)

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Art. 168. If the marriage is terminated and the mother contracted


another marriage within three hundred days after such
termination of the former marriage, these rules shall govern in the
absence of proof to the contrary:
(1) A child born before one hundred eighty days after the
solemnization of the subsequent marriage is considered to have
been conceived during the former marriage, provided it be born
within three hundred days after the termination of the former
marriage;
(2) A child born after one hundred eighty days following the
celebration of the subsequent marriage is considered to have been
conceived during such marriage, even though it be born within the
three hundred days after the termination of the former marriage.
(259a)
Q.

Why is there a presumption of access prior to the termination of marriage?

A.

This is so because it is not unlikely that the spouses could have engaged in sexual
intercourse just prior to the death of one of them or just before the issuance of a
decree of annulment or a declaration of nullity. Also, the law fixes the period of 300
days as the longest gestation period for a child inside the womb of the mother.

Q.

What is the basis behind the 180-300 day period provided by law?

A.

The 180-day period provided by law is considered as the shortest gestation period of
a woman. On the other hand, the 300-day period is considered the longest gestation
period.

Q.

What happens when the mother marries again and a child is born within 180 days
from the solemnization of the second marriage and within the 300-day period after
the termination of the first marriage and there is no concrete proof as to the father
of the child?

A.

The child is considered to have been conceived of the first marriage. The
presumption is in accordance with decency, reason and the supposed virtue of the
mother.
Art. 169. The legitimacy or illegitimacy of a child born after three
hundred days following the termination of the marriage shall be
proved by whoever alleges such legitimacy or illegitimacy. (261a)

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Q.

Is there a presumption for a child born after 300 days after the termination of a
marriage?

A.

No. In the absence of any subsequent marriage after the termination of the first
marriage, the father of a child born after 300 days from such termination can be
anybody. This includes the husband of the previous marriage as it is not
improbably that the gestation period may extend extraordinarily beyond 300 days
or that the previously married couple had sexual intercourse after the finality of
their decree of annulment or nullity.

Q.

What happens if a child is born after 300 days after the termination of a marriage?

A.

Other convincing proofs of filiation must be shown. No presumption can attach,


thereby necessitating the introduction of evidence by whoever alleges legitimacy or
illegitimacy.
Art. 170. The action to impugn the legitimacy of the child shall be
brought within one year from the knowledge of the birth or its
recording in the civil register, if the husband or, in a proper case,
any of his heirs, should reside in the city or municipality where the
birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the
place of birth as defined in the first paragraph or where it was
recorded, the period shall be two years if they should reside in the
Philippines; and three years if abroad. If the birth of the child has
been concealed from or was unknown to the husband or his heirs,
the period shall be counted from the discovery or knowledge of the
birth of the child or of the fact of registration of said birth,
whichever is earlier. (263a)
Art. 171. The heirs of the husband may impugn the filiation of the
child within the period prescribed in the preceding article only in
the following cases:
(1) If the husband should die before the expiration of the period
fixed for bringing his action;
(2) If he should die after the filing of the complaint without having
desisted therefrom; or
(3) If the child was born after the death of the husband. (262a)

Q.

Who may file an action to impugn the legitimacy of the child?

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A.

Principally, only the husband can file a direct action to impugn the legitimacy of
the child. Article 171 provides for the exception. His heirs can substitute him only
if he dies before the period fixed for bringing the action or after the filing of the
same, without having desisted therefrom, or if the child was born after his death.

Q.

Can legitimacy be collaterally attacked?

A.

Legitimacy cannot be collaterally attacked or impugned (Angeles v. Maglaya, G.R.


No. 153798, September 2, 2005, 469 SCRA 363). It can be impugned only in a direct
suit precisely filed for the purpose of assailing the legitimacy of the child. However,
if one of the issues presented in an action for annulment of an extrajudicial
partition concerned the right of a particular person to inherit and the assertion that
the alleged heir was not in fact the child of the deceased, a determination of filiation
can be made (Spouses Fidel v. Court of Appeals, G.R. No. 168263, July 21, 2008)

Q.

Consider this situation. A wife gives birth to a child of her paramour, and the child
is born inside the valid marriage of the wife and the husband. Can a case where
the paramour of a wife who filed an action for the custody of the child prosper?

A.

The action should be dismissed because only the husband, as a general rule, can
claim that the child is illegitimate in a direct action for that purpose and only on
the grounds provided for by law. To allow the custody case to prosper would mean
allowing the paramour to impugn the legitimacy of the child vis--vis the husband
which is not sanctioned by the law.

Q.

Who are the heirs contemplated by law that can file an action as a substitute for
the husband?

A.

All kinds of heirs, whether testamentary or legal, compulsory or voluntary, are


contemplated by law.

Q.

Can the mother have standing to impugn the legitimacy of her child?

A.

The law does not give the mother standing to file an action to impugn the filiation
or legitimacy of her children because maternity is never uncertain (Eloi v. Made, 1
Rob. 581). Moreover, for reasons of public decency and morality, a married woman
cannot say that she had no intercourse with her husband and that her offspring is
spurious (People ex rel. Gonzales v. Monroe, 43 Ill. App 2d 1, 192 N.E. 2d 691)

Q.

What is reason behind the limitation of parties with legal standing to impugn the
legitimacy of the child?

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A.

The reason for preventing disavowal of paternity except within extremely narrow
limits is based upon a desire to protect innocent children against attacks upon
paternity (Russell v. Russell Eng [1924] AC 687 [HL]; Taylor v. Taylor, 295 So. 2d
494). To allow other persons, especially those not belonging to the family wherein
the child was born, to bring an action to impugn the legitimacy of such child, would
be to invite similar actions, with or without basis, by those whose only purpose is to
break up a family to satisfy a jealous or revengeful feeling (A v. X, Y, and Z,
Supreme Court of Wyoming, 641 P2d 1222 74 L. Ed. 2d 518). Moreover, it is also to
prevent a child so born from repudiating his own legitimacy (Eloi v. Made, 1 Rob
[La] 581 cited in 10 Am. Jur. 2d 858)

Q.

What are the prescriptive period for the husband or, in proper cases, the heirs to
impugn the legitimacy of a child?

A.

The following are the different prescriptive periods:


1) One (1) year from knowledge of the birth or its recording in the civil register, if
the impugner resides in the city or municipality where the birth took place or was
recorded;
2) Two (2) years from knowledge of the birth or its recording in the civil register, if
the impugner resides in the Philippines other than in the city or municipality
where the birth took place or was recorded; and
3) Three (3) years, if the impugner resides abroad;
If the birth of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the discovery or knowledge
of the birth of the child or of the fact of registration of the birth, whichever is earlier.

Q.

Why are the prescriptive periods for impugning the legitimacy shorter compared to
the other prescriptive period relative to any other action such as annulment of
marriage and legal separation?

A.

This is precisely to avoid leaving in dispute for a long period of time the status of
the child. Bastardization of a child is a very serious matter which public policy does
not encourage.

Q.

Can the legitimacy of the child still be question after the lapse of the applicable
prescriptive period?

A.

No, after the lapse of the prescriptive period, the status of the child becomes fixed
and cannot be questioned anymore (Angeles v. Maglaya, G.R. No. 153798,
September 2, 2005, 469 SCRA 363; Tison v. Court of Appeals, 276 SCRA 582; De
Jesus v. Estate of Decedent Juan Gamboa Dizon).

Q.

When does the prescriptive period start to run?

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It starts to run from the time of the knowledge of birth or its recording in the civil
register.

Chapter 2
Proof of Filiation
Art. 172. The filiation of legitimate children is established by any of
the following:
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public document
or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of a
legitimate child; or
(2) Any other means allowed by the Rules of Court and
special laws. (265a, 266a, 267a)
Q.

How is the filiation of legitimate children established?

A.

The filiation of legitimate children may be established by the following: 1) The


record of birth appearing in the civil register or a final judgment; 2) An admission of
legitimate filiation in a public document or a private handwritten instrument and
signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be proved by:
1) The open and continuous possession of the status of a legitimate child; or 2) Any
other means allowed by the Rules of Court and special laws.

Q.

What is the weight of the record of birth as evidence in establishing filiation?

A.

It is a prima facie evidence of the facts therein considered. (Article 410 of the Civil
Code; Malicdem v. Republic, 12 SCRA 313). As prima facie evidence, the
statements in the record of birth may be rebutted. Hence, if there are no evidences
to disprove the facts contained therein, the presumption will hold and the children,
as stated in the birth certificate, shall be considered legitimate (Mariategui v. Court
of Appeals, 205 SCRA 337).

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Q.

What is the implication if the alleged father did not sign in the birth certificate?

A.

It has been held that if the alleged father did not sign in the birth certificate the
placing of his name by the mother, or doctor or registrar, is incompetent evidence of
paternity of said child (Reyes v. Court of Appeals, 135 SCRA 439; Berciles v. GSIS,
128 SCRA 53; Roces v. Local Civil Registrar, 102 Phil. 1050)

Q.

Which between the two presumptions will prevail, a presumption of fact created by
the record of birth or a presumption or declaration of law provided for in Article
164?

A.

The presumption or declaration of law provided for in Article 164 will prevail.
(Concepcion v. Court of Appeals, 468 SCRA 438)

Q.

Can a final judgment on the status of the children be based on a compromise


agreement?

A.

A final judgment based on a compromise agreement where the parties stipulated


and agreed on the status of a person is void. Contractually agreeing and
establishing the civil status of a person is against the law and public policy. Article
2035(1) of the Civil Code provides that no compromise agreement upon the civil
status of persons shall be valid. In Rivero v. Court of Appeals, G.R. No. 141273,
May 17, 2005, 458 SCRA 714, the Supreme Court said that paternity and filiation,
or the lack of the same, is a relationship that must be judicially established, and it
is for the court to determine its existence or absence. It cannot be left to the will or
agreement of the parties.

Q.

Does an admission of legitimate filiation in a public instrument or private


handwritten instrument require court action?

A.

An admission of legitimate filiation in a public instrument or a private handwritten


instrument and signed by the parent concerned is a complete act of recognition
without need of court action. (De Jesus v. De Jesus, G.R. No. 142877, October 2,
2001).

Q.

What does continuous possession mean in the context of legitimate filiation?

A.

In Mendoza v. Court of Appeals, 201 SCRA 675, the Supreme Court explained what
continuous possession means, to wit:
continuous does not mean that the concession of status shall
continue forever but only that it shall not be of an intermittent character
while it continues. The possession of such status means that the father has
treated the child as his own, directly and not through others, spontaneously

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and without concealment though without publicity x x x. There must be a


showing of the permanent intention of the supposed father to consider the
child as his own, by continuous and clear manifestation of paternal affection
and care (Mendoza v. Court of Appeals, 201 SCRA 675)
Q.

What are the overt acts and conduct that satisfy the requirement of open
and continuous possession of legitimate status?

A.

In Jison v. Court of Appeals, G.R. No. 124853, February 24, 1998, the
following overt acts and conduct satisfy the requirement:
[L]ike sending appellant to school, paying for her tuition fees, school
uniforms, books, board and lodging at the Colegio del Sagrado de Jesus,
defraying appellants hospitalization expenses, providing her with [a]
monthly allowance, paying for her funeral expenses of appellants mother,
acknowledging appellants paternal greetings and calling appellant his
hija or child, instructing his office personnel to give appellants monthly
allowance, recommending appellant for employment at the Miller, Cruz &
Co., allowing appellant to use his house in Bacolod and paying for her long
distance telephone calls. Having appellant spend her vacation in his
apartment in Manila and also at his Forbes residence, allowing appellant to
use his surname in her scholastic and other records.

Q.

Can a baptismal record or certificate constitute proof of filiation?

A.

Yes. For a baptismal certificate to be proof of filiation under the Rules of


Court, it must be shown that the father therein participated in the
preparation of the same. A birth certificate not signed by the father is not
competent proof of filiation.

Q.

Is the certificate of live birth purportedly identifying the putative father


competent evidence of paternity?

A.

It is not a competent evidence when there is no showing that the putative


father had a hand in the preparation of said certificates, and the Local Civil
Registrar is devoid of authority to record the paternity of an illegitimate
child upon the information of a third person. Simply put, if the alleged father
did not intervene in the birth certificate, e.g. supplying the information
himself, the inscription of his name by the mother or doctor or registrar is
null and void; the mere certificate by the registrar without the signature of
the father is not proof of voluntary acknowledgment on the latters part.
(Jison v. Court of Appeals, G.R. No. 124853, February 24, 1998)

Q.

Is there a scientific method in proving paternity?

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A.

Yes, deoxyribonucleic acid (DNA) testing is also a valid means of


determining paternity. (Agustin v. Court of Appeals, G.R. No. 162571, June
15, 2005)

Q.

What is the minimum value of the Probability of Paternity required in order


for there to be a refutable presumption of paternity?

A.

If the value of the Probability of Paternity is 99.9% or higher, there is a


refutable presumption of paternity. If it is lower than 99.9% it should be
considered as corroborative evidence. (Herrera v. Alba, G.R. No. 148220,
June 15, 2005
Art. 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs
should the child die during minority or in a state of insanity. In
these cases, the heirs shall have a period of five years within which
to institute the action.
The action already commenced by the child shall survive
notwithstanding the death of either or both of the parties.

Q.

As between the parent and the child, can other persons file an action to claim
legitimacy in behalf of the child?

A.

Generally, no. The right of action for legitimacy devolving upon the child is of a
personal character and generally pertains exclusively to him. Only the child may
exercise it at any time during his lifetime. As exception, and in three cases only, it
may be transmitted to the heirs of the child, to wit: if he or she died during his or
her minority, or while insane, or after action had already been instituted.
Inasmuch as the right of action accruing to the child to claim his or her legitimacy
lasts during his or her whole lifetime, he or she may exercise it either against the
presumed parents, or his or her heirs (Conde v. Abaya, 13 Phil. 249)
Art. 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in
proper cases, their brothers and sisters, in conformity with the
provisions of this Code on Support; and
(3) To be entitled to the legitimate and other successional rights

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granted to them by the Civil Code. (264a)


Q.

What are the rights of a legitimate child?

A.

Legitimate children shall have the right:


(1) To bear the surnames of the father and the mother, in conformity with the
provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper cases,
their brothers and sisters, in conformity with the provisions of this Code on
Support; and
(3) To be entitled to the legitimate and other successional rights granted to them by
the Civil Code.

Q.

Is there a greatest and preferential sum of rights to legitimate children compared


with an illegitimate child?

A.

Yes. (Clemena v. Clemena) A legitimate child has lifetime to claim legitimacy (Art.
172), such right may be transmitted to heirs (Art. 173) but an illegitimate child can
only bring an action during the lifetime of the parent and such right is not
transmissible to heirs. He or she is also entitled to support from ascendants and
descendants (Arts. 195, 199) and not merely from grandparents or grandchildren,
which is the case for an illegitimate child (Art. 195 2, 3). As to successional rights,
the legitime of an illegitimate child is only one-half of a legitimate child (Art. 364,
Civil Code) and he or she has no right to inherit ab instestado from the legitimate
children and relatives of his or her parents (Art. 992, Civil Code) while a legitimate
child has.

Chapter 3
Illegitimate Children
Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
children. The action must be brought within the same period
specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may be
brought during the lifetime of the alleged parent. (289a)
Q.

May an illegitimate child establish his or her illegitimate filiation in the same way
and on
the same evidence as legitimate children?

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A.

Yes (Montefalcon v. Vasquez, GR No. 165016). The action must be brought within
the same
period specified in Article 173, except when the action is based on the
second paragraph of Article 172, in which case the action may be brought during
the lifetime of the alleged parent.

Q.

In proving illegitimate filiation, if there is no record of birth or an admission of


illegitimate filiation in a public document or a private handwritten instrument
and signed by the parent concerned, what other evidence can be presented?

A.

Illegitimacy can be proven within the lifetime of the parent through open and
continuous possession of the status of an illegitimate child or any other means
allowed by the Rules of
Court and special laws.

Q.

Is a judicial testimony sufficient to prove paternity?

A.

Yes, provided it is not rebutted and in fact not disputed by the alleged parent
(Navarro v. Bacalla, 15 SCRA 114).

Q.

In proving filiation, what are examples of other means allowed by the Rules of
Court?

A.

Such evidence may consist of his baptismal certificate, a judicial admission, a


family Bible in which his name has been entered, common reputation respecting
his pedigree, admission by silence, the testimonies of witnesses, and other kinds of
proof admissible under Rule 130 of the Rules of Court (Mendoza v. Court of
Appeals, 201 SCRA 675).

Q.

Should the evidence be clear and convincing to prove filiation?

A.

Yes. If the birth of the illegitimate child is way beyond nine months from the
approximate time of conception resulting from the alleged sexual intercourse
between the parties, this can negate filiation (Constantino v. Mendez, 209 SCRA
28).

Q.

Are private letters and notes enough to prove filiation?

A.

No. Private letters and notes are not enough to prove filiation Section 40, Rule 130,
Rules of Court:
The reputation or tradition existing in a family previous to the controversy, in
respect to the pedigree of any one of its members, may be received in evidence if the
witness testifying thereon be also a member of the family, either by consanguinity
or affinity. Entries in family bibles or other family books or charts, engraving on
rings, family portraits and the like, may be received as evidence of pedigree. They
do not fall unde rhte phrase and the like (Jison v. Court of Appeals).

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198

Q.

How about love letters?

A.

The love letters are in the handwriting of the petitioner, using alias, declaring that
should
the respondent got pregnant, he will have no regret and they should
enjoy the responsibility
are considered as a private handwritten instrument
that can establish filiation (Verseles v.
Posadas, GR No. 159785)

Q.

What are the prescriptive periods to prove illegitimate filiation?

A.

Same as a legitimate child if filiation is established by any of the following: (1) the
record of birth appearing in the civil register or a final judgment; or (2) an
admission of legitimate filiation in a public document or a private handwritten
instrument and signed by the parent concerned (Art. 172, first paragraph). In the
absence of these, the legitimate filiation should be proved during the lifetime of the
parent by (1) the open and continuous possession of the status of a illegitimate
child; or (2) any other means allowed by the Rules of Court and special laws (Art.
172, second paragraph). The parties should be allowed to adduce evidence to know
whether he or she falls under the first or second paragraph (Tayag v. Tayag- Gallor,
GR No. 174680).
Art. 176. Illegitimate children shall use the surname and shall be
under the parental authority of their mother, and shall be entitled
to support in conformity with this Code. However, illegitimate
children may use surname of their father if their filiation has been
expressly recognized by the father through the record of birth
appearing in the civil register, or when an admission in a public
document or private handwritten instrument is made by the father.
Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime. The
legitime of each illegitimate child shall consist of one-half of the
legitime of a legitimate child.(As amended by Republic Act 9255,
approved February 24,2004.)

Q.

Can an illegitimate child use the surname of his or her father?

A.

Yes. An illegitimate child may use the surname of his or her father if the filiation
has been
expressly recognized by the father through the record of birth
appearing in the civil register,
or when an admission in a public document or
private handwritten instrument is made by
the father.

Q.

Does the father have the right to institute an action before the regular courts to
prove non-filiation during his lifetime?

A.

Yes, even though he allowed the use of his surname by the illegitimate child.

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Q.

What is the legitime of an illegitimate child?

A.

The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate
child.

Q.

Who exercises parental authority over the illegitimate child?

A.

The mother has parental authority over the illegitimate child. This is the case
notwithstanding the recognition of the father (Briones v. Miguel, GR No. 156343)
because the alleged putative father may not be the real natural father, hence, the
parental authority is solely given to the mother. Even though paternity is certain,
the mother still has custody with the father not cohabiting with the mother (David
v. CA, 65 SCAD 508).

Q.

Is parental authority waivable?

A.

No, except in cases of adoption, guardianship, and surrender to a childs home or


orphan institution.

Q.

Can the illegitimate child be under the parental authority of the father and
mother?

A.

Yes, if the father lives together with the illegitimate child whom he admits as his,
and with
the mother, parental authority is exercised by both parents?

Chapter 4
Legitimated Children
Art. 177. Only children conceived and born outside of wedlock of
parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other may be
legitimated. (269a)
Art. 178. Legitimation shall take place by a subsequent valid
marriage between parents. The annulment of a voidable marriage
shall not affect the legitimation. (270a)
Art. 179. Legitimated children shall enjoy the same rights as
legitimate children. (272a)
Art. 180. The effects of legitimation shall retroact to the time of the
child's birth. (273a)

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Q.

Who can be legitimated?

A.

Only children conceived and born outside of wedlock of parents who, at the time of
the
conception of the former, were not disqualified by any impediment to marry
each other may
be legitimated.

Q.

When does legitimation take place?

A.

Legitimation takes place by a subsequent valid marriage between parents.

Q.

Does the annulment of marriage affect legitimation?

A.

The annulment of a voidable marriage does not affect the legitimation.

Q.

What are the rights of a legitimated child?

A.

A legitimated child enjoys the same rights as a legitimate child.

Q.

When do the effects of legitimation retroact?

A.

The effects of legitimation retroact to the time of the child's birth.

Q.

How should legitimation be construed?

A.

Legitimation is construed liberally (Cardenas v. Cardenas, 12 III. App 2d 497)


because it is remedial in character intended for the benefit and protection of the
innocent offspring.

Q.

What are the requirements of legitimation?

A.

The requirements for legitimation are: 1) the parents do not suffer any legal
impediment or are disqualified to marry because either one or both of them are 18
years of age at the time of the conception of the child by the mother; 2) the child has
been conceived and born outside of a valid marriage; and 3) the parents
subsequently enter into a valid marriage.

Q.

Could legitimation be applied prior to the effectivity of the Family Code?

A.

Yes, it retroacts when the law [the Family Code] becomes effective (Henry v. Jean,
238 La
314, 225 So2d 363). This is for the benefit of the child and for his or
her paramount interest.

Q.

Should legitimation prior to the effectivity of the Family Code affect property
rights?

A.

No, it will not affect vested property rights (Mudrow v. Cladwell, 173 SC 243).

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Q.

If one or both of the parents is/are less that 18 years old, is legitimation possible?

A.

Yes, legitimation is allowed if the legal impediment consists of one or both of the
parties are less that 18 years old.
Art. 181. The legitimation of children who died before the
celebration of the marriage shall benefit their descendants. (274)

Q.

Can legitimation of children who died before the celebration of the marriage benefit
their descendants?

A.

The legitimation of children who died before the celebration of the marriage
benefits their descendants to give the descendants what they should have enjoyed
during the lifetime of
their father or mother.
Art. 182. Legitimation may be impugned only by those who are
prejudiced in their rights, within five years from the time their
cause of action accrues. (275a)

Q.

Who may impugn legitimation?

A.

Legitimation can only by those who are prejudiced in their rights

Q.

What is the prescriptive period to impugn legitimation?

A.

The prescriptive period is within five years from the time the cause of action
accrues.

Q.

Can creditors impugn legitimation?

A.

Yes, if the legitimation affected their rights and are prejudiced.

Q.

What does rights in Art. 182 include?

A.

The rights refer to successional rights, the persons who can be prejudiced are the
legal heirs of the parents.

Republic Act 8552


AN ACT ESTABLISHING THE RULES AND POLICIES ON
THE DOMESTIC ADOPTION OF FILIPINO CHILDREN
AND FOR OTHER PURPOSES
SECTIONS 1-3

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ADOPTION
Republic Act No. 8552

Q.

Who is a child?

A.

1.) a person below 18 years of age

202

2.) a person over 18 of age but is unable to fully take care of him/herself or protect
himself/herself from abuse, neglect, cruelty, exploitation or discrimination because
of
physical or mental disability or condition. (RA 9523)
Q.

Who is a Child Legally Available for Adoption?

A.

Certification has been issued by the DSWD that he/she is available for adoption
either by being voluntarily or involuntarily committed.

Q.

Define voluntarily committed child, involuntarily committed child, abandoned


child, and
neglected child?

A.

Voluntarily committed child parent(s) knowingly and willingly relinquishes


parental
authority to the Department.
Involuntarily committed child parents, known or unknown, has been
permanently and judicially deprived of parental authority due to
1.) abandonment;
2.) substantial, continuous, or repeated neglect;
3.) abuse; or incompetence to discharge parental responsibilities.
Abandoned child 1.) no proper parental care or guardianship or
2.) whose parent(s) has deserted him/her for a period of atleast 6 months and has
been judicially declared as such.
Neglected child a child whose basic needs have been deliberately unattended or
inadequately attended within a period of three (3) continuous months. Neglect may
occur in
two (2) ways:
a. Physical neglect malnourished, ill-clad, and without proper shelter,
provisions and/or supervision.
b. Emotional neglect maltreated, raped, seduced, exploited, overworked,
made to work under ill conditions, made to beg, or placed in moral
danger, gambling, prostitution, and other vices. (RA 9523)

Q.

What is the status of an adoption degree which did not comply with all
requirements of law?

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A.

NULL (In re OKeefe, 164 Misc 473 [1937]), but the burden of proof in establishing
adoption is upon the person claiming such relationship, as such he/she must prove
compliance with the statutes relating to adoption (Lazatin v Campos, 92 scra 263).
However, substantial compliance with mandatory requirements is enough to
validate an adoption degree(Republic v CA and Zenaida Bobiles, 205 scra 356).

Q.

What is the purpose behind adoption?

A.

Promotion of the welfare of the child and the enhancement of his or her
opportunities for a useful and happy life (Daoang v Municipal Judge of san
Nicholas, Ilocos Norte, 159 SCRA 366, citing In re Adoption of Resaba, 95 Phil 244;
Santos v Aranzanso, 123 Phil 160).

SECTION 4
Q.

To whom are counselling sessions provided?

A.

principal parties namely, the 1.) natural parents, 2.) adopter and 3.) adoptee.

Q.

What is this period given to Biological Parents?

A.

A period of 6 months is given to the biological parents to reconsider any decision to


relinquish his/her child for adoption before the decision become irrevocable.
However, such irrevocability must give way to the childs best interest rule.

Q.

Is an adoption plan granted prior the birth his/her child binding?

A.

No binding commitment of adoption shall be permitted before the birth of the child.

SECTION 5-6
Q.

Adoption process involves how many phases?

A.

Two phases 1.) Administrative phase govern by RA 9523


2.) Judicial phase done by proper family courts.

SECTION 7
Q.

Who may adopt?

A.

Any Filipino citizen, any alien or guardians

Q.

What are the requirements for Filipino citizens to adopt?

A.

1.) with full civil capacity and legal rights

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2.) good moral character and has not been convicted of any crime involving moral
turpitude
3.) emotionally and psychologiucally capable of caring for children
4.) atleast 16 years older than the adoptee
5.) able to support and care for his/her children in keeping with the means of the
family.
NOTE: requirement of 17 years difference may be waived when adopter is the
biological
parent of the adoptee or the spouse of the adoptees parent.
Q.

What are the requirements for Alien to adopt?

A.

1.) Same qualification stated for Filipino adopter


2.) His/her country has diplomatic relations with the Republic of the Philippines
3.) He/she has been living in the Philippines for at least three (3) continuous years
prior to
the filing of the application for adoption and maintains such
residence until the adoption
decree is entered - final and executory.
4.) He/she 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, and that his/her government allows the adoptee to enter his/her
country as his/her adopted son/daughter.
NOTE: Residency and certification requirements may be waived, in the discretion
of the court, in cases of:
1.) Former Filipino seeking to adopt a relative within the 4th civil degree of
consanguinity or affinity; or
2.) One who seeks to adopt a legitimate son/daughter of his/her Filipino
spouse; or
3.) One who is married to a Filipino citizen and seeks to adopt jointly with
his/her spouse a relative within the 4th civil degree of consanguinity and
affinity of the Filipino spouse.

Q.

What are the requirements for a Guardian to adopt?

A.

1.) only applies with respect to his/her ward


2.) after the termination of the guardianship and

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3.) clearance of financial accountabilities.


Q.

May Husband and wife adopt separately?

A.

General Rule is NO (In Re: Petition for Adoption of Michelle Lim, G.R. Nos.
168992-93, May
21, 2009). Except when:
1.) If one spouse seeks to adopt the legitimate son/daughter of the other; or
2.) If one spouse seeks to adopt his/her own illegitimate son/daughter with
the consent of the other spouse; or
3.) If the spouses are legally separated from each other.
NOTE: Joint Parental Authority shall be exercised by the spouses except in
situation #3 (legally separated). In case of disagreement however, the fathers
decision shall prevail
unless there is a judicial order to the contrary (Art.
211).

SECTION 8
Q.

Who may be adopted?

A.

1.) A child legally available for adoption; or


2.) legitimate son/daughter of one spouse by the other spouse; or
3.) illegitimate son/daughter by a qualified adopter to improve status to legitimate;
or
4.)a person of legal age, if prior to the adoption, said person has been consistently
considered and treated by the adopter(s) as his/her own child since minority; or
5.) a child whos previous adoption has been rescinded (minor); or
6.) a child whos biological or adoptive parent(s) has died (minor): Provided,
no proceedings
shall be initiated within six (6) months from the time of death
of said parent(s).

SECTION 9
Q.

What consent is needed and from whom?

A.

Written consent is required from


1.) The adoptee, if ten (10) years of age or over; and

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2.) Biological parents, legal guardian or state; or


3.) Legitimate and adopted children, ten (10) years of age or over, of the adopter(s)
and adoptee, if any; or
4.) Illegitimate children, ten (10) years of age or over, of the adopter if living with
said adopter and the latters spouse, if any; or
5.) The spouse, if any, of the person adopting or to be adopted.
NOTE: Written consent is mandatory.
In the case of Santos v Aranzanso it states that consent by parents to the
adoption is not
absolute, in cases of abandoned child, consent of guardian
or/and state suffices.
In the case of Landingin v Republic, if child is illegitimate, consent of mother
suffices. Except
when the father acknowledged and admitted that the child is
his and there is no doubt as to
the same, his consent must likewise be obtained.
SECTION 16-17
Q.

What is the effect of adoption?

A.

ALL legal ties with biological parents are effectively cut except when the biological
parent is
the spouse of the adopter. It makes the adopted child the natural
child of the adoptive parents.
NOTE: Such effect is not affected even if adoptive parents died, or adopted child
reached
majority age or his/her subsequent marriage.
NOTE However: Such relationship is limited only to the adoptive parents and
adopted child
and does not extend to other relatives.

SECTION 18
Q.

What are the succession rights of the adopted child?

A.

It is as if he/she is a natural and legitimate child of the adoptive parents, with no


legal ties as to its biological parents except if made through testamentary
succession. The only exception
is that no right of representation is given to the
adopted because this does not involve
reciprocal rights between parent and
child. Thus, unless provided by the adoption statute, the adopted child does not
inherit from the lineal or collateral kindred of the adoptive
parents
(in
re
Harringtons Estate, 120 ALR 8300; Shemaker v Newman, 89 ALR 1034).

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SECTION 19
Q.

Who may rescind an adoption?

A.

Only the adoptee except if minor or if over 18 but is incapacitated, then with
assistance of DSWD as guardian/counsel.

Q.

What are the grounds of rescission?

A.

1.) repeated physical and verbal maltreatment despite counselling;


2.) attempt on the life of the adoptee;
3.) sexual assault or violence;
4.) abandonment and failure to comply with parental obligations.

Q.

Wont the adopter have a right to rescind adoption?

A.
No. He has not right to rescind but may disinherit for cause provided in Article 919
of the Civil Code.

Procedural Rule A.M. No. 02-6-02 SC


Inter-Country Adoption
Q.

What is inter-country adoption?

A.

It refers to the socio-legal process of adopting a Filipino child by a foreigner or a


Filipino citizen permanently residing abroad where the petition is filed, the
supervised custody is undertaken, and the decree of adoption is issued outside the
Philippines. (R.A. 8043, Sec. 3 [a])

Q.

Is the Inter-Country Adoption Act applicable only to foreign nationals who want to
adopt Filipino children?

A.

No, the Act can also apply to Filipino citizens permanently residing abroad.

Q.

Where is the decree of adoption issued under this Act?

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208

A.

In the foreign country where the applicant resides.

Q.

What does the term legally-free child mean?

A.

A child who has been voluntarily or involuntarily committed to the Department of


Social Welfare and Development, in accordance with the Child and Youth Welfare
Code. (Sec. 3 (f), RA 8043)

Q.

Can the Inter-Country Adoption Board (ICAB) cancel the license of childcaring/placement agencies once issued?

A.

Yes, the ICAB can cancel the license to operate and blacklist the child-caring and
placement agency involved from the accreditation list of the ICAB upon finding of
violation of any provision under the Act. (Sec. 4 (h), RA 8043)

Q.

What are the requirements before the ICAB will accredit foreign private adoption
agencies?

A.

(1) The foreign private adoption agency must have demonstrated professionalism,
competence and have consistently pursued non-profit objectives to engage in the
placement of Filipino children in their own country; (2) Such foreign adoption
agency is duly authorized and accredited by their own government to conduct intercountry adoption; (3) The total number of authorized and accredited foreign private
adoption agencies shall not exceed 100 a year. (Sec. 6 (i), RA 8043)

Q.

Can an alien who is 25 years old apply for inter-country adoption, wherein the child
available for adoption is 8 years old?

A.

Generally no, because the law says that the alien must be at least 27 years old and
at least 16 years older than the child to be adopted. The exception is when the
adopter is the natural parent of the child or the spouse of such parent. (Sec. 9 (a),
RA 8043)

Q.

Must a married couple jointly file for adoption?

A.

Yes. This is an explicit requirement under the law. (Sec. 9 (b), RA 8043)

Q.

Where can an applicant file an application for inter-country adoption?

A.

In the Philippine Regional Trial Court having jurisdiction over the child or with the
ICAB through an intermediate agency, whether governmental or an authorized
and accredited agency, in the country of the prospective adoptive parents.

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Q.

Before a child can be legally adopted under the Inter-Country Adoption Act, must
there be a finding that all possibilities for adoption of the child in the Philippines
have been exhausted?

A.

Yes, in fact, the rules says that there should be a certification first by the
Department of Social Welfare and Development that all possibilities for the
adoption of the child in the Philippine have been exhausted and that inter-country
adoption is in the best interest of the child (Sec. 32, Rules and Regulation). Also, the
law says that no child shall be matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted locally. (Sec. 11, RA 8043).

Q.

What is matching?

A.

It refers to the judicious pairing of the applicant and the child to promote a
mutually satisfying parent-child relationship.

Q.

What are the costs that the applicant must bear incidental to the placement of the
child?

A.

(1) The cost of bringing the child from the Philippines to the residence of the
applicant abroad, including all travel expenses within the Philippines and abroad
and (2) The cost of passport, visa, medical examination and psychological
evaluation required and other related expenses. (Sec. 12, RA 8043)

Q.

During the trial custody what must be submitted by the adoptive parents to the
governmental agency or authorized and accredited agency?

A.

A progress report of the childs adjustment. (Sec. 14, RA 8043)

Q.

When can the child be repatriated?

A.

When the ICAB fails to find another placement for the child within reasonable time
after the termination of the pre-adoptive relationship and that repatriation is the
only option available provided it is still in the best interest of the child. (Sec. 47,
Rules and Regulations)

Q.

Where and when can the petition for adoption be filed?

A.

This is filed with the proper court of the country where the applicant resides within
6 months after the completion of the trial custody period.

Q.

Are the illegal acts under RA 8043 mala in se or mala prohibita?

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Mala prohibita, thus mere perpetration of the act is enough to be adjudged guilty of
committing the crime.

TITLE VIII
SUPPORT
Q.

What is the purpose of the clause in keeping with the financial position of the
family?

A.

It determines the amount of support to be given. It also eliminates the distinction


between
natural support and civil support (Sta. Maria, p. 756).

Q.

Distinguish natural support from civil support.

A.

Natural support has been understood as the basic necessities while civil support
refers to
anything beyond the basic necessities.

Q.

Who are obliged to support each other?

A.

1. Spouses
2. Legitimate ascendants and descendants.
3. Parents and their legitimate children and the legitimate and illegitimate
children of the
latter.
4. Parents and their illegitimate children and the legitimate and illegitimate
children of the
latter.
5. Legitimate brothers and sisters, whether of full or half-blood (Article 195,
Family Code)

Q.

Can a common-law wife ask support from her common-law husband?

A.

No. Support between spouses presupposes a valid marriage. It is the fact of a valid
marriage that gives rise to the duty (Santos v. Sweeney, 4 Phil. 79)

Q.

What is a valid defense against an action for support by a wife?

A.

Adultery (Quintana v. Lerma, 24 Phil. 285). However, the adultery of the wife
must be
established by competent evidence (Reyes v. Ines-Luciano, 88 SCRA
803).

Q.

Can a spouse ask for support pendente lite from the other spouse in a case wherein
the validity of the marriage is the very lis mota of the case without a hearing?

A.

No, they shall be supported by the absolute community or the conjugal partnership

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(Article

SUPPORT

211

198, Family Code; Sta. Maria, p. 760)

Q.

When does the obligation to give support, as between a husband and his wife,
cease?

A.

When the marriage is annulled or declared void ab initio (Mendoza v. Parungao, 41


Phil. 271)
What is a valid defense to refuse to give support to a child?

Q.
A.

That the child is a fruit of an adulterous relationship (Sanchez v. Zulueta, 68 Phil.


110)

Q.

If the status of the child is the issue of the case, can the child get support pendent
lite?

A.

Yes, if the status of the chid has been proven provisionally, which can be attained if
there is
prima facie evidence (affidavit of the claimant-child, testimonies)?
However, the finding is
only provisional and is subject to the final outcome of
the trial on the merits (Mangulabnan
v. IAC, 185 SCRA 760)

Q.

Can an illegitimate sibling ask for support?

A.

Yes, unless the sibling is of age, and that the need for support is due to a cause
imputable to the claimants fault or negligence (Article 196, Family Code).

Q.

Where do you get the support to be given to descendants, ascendants, brothers and
sisters?

A.

From the separate property of the one who is obliged to give support. However, if
the obligor has no separate property, the absolute community or conjugal
partnership will be liable, if financially capable, and such will be considered as a
deduction from the share of the spouse obliged upon liquidation (Article 197,
Family Code).

Q.

What is the exception to this?

A.

When the one who is to be supported is the common child of the husband and the
wife, the
absolute community or conjugal partnership shall be principally
charged (Article 94 [1] and Article 121 [1], Family Code, Sta. Maria p. 763).
However, if it is an illegitimate child of a spouse, mere insufficiency of the separate
property is enough to make the absolute community, or the conjugal partnership
liable if all the required conditions in are complied
with
and
there
is
insufficient separate property of the one who is obliged to give support.

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SUPPORT

212

Q.

When two or more persons are obliged to give support, what is the order upon
whom the obligation devolves?

A.

1. Spouse;
2. Descendants in the nearest degree;
3. Ascendants in the nearest degree;
4. Brothers and Sisters (Article 199, Family Code)

Q.

When the obligation to give support falls upon two or more persons, how is the
payment divided?

A.

In proportion to the resources of each (Article 200, Family Code).

Q.

What if there is an urgent need?

A.

A judge may order only one to pay, without prejudice to his right to claim from the
others the share due from them (Article 200, Family Code).

Q.

What if there are two or more claimants and only one obligor?

A.

He must satisfy both. In the event that s/he has insufficient means, the order in
Article 199 should be followed, unless the claimant is a child under his/her
parental authority, then the
child is preferred (Article 200, Family Code).

Q.

Is a judgment for support final or provisional?

A.

It is provisional in character. It can be reduced or increased according to the


necessities of the recipient and the resources or means of the person obliged to
furnish the same (Article 201, Family Code).

Q.

Does the 5-year period for execution apply in support cases?

A.

No. The support under the judgment becomes due from the time to time as
provided and is
enforceable by simple motion at ANY time, except as to
instalments not recovered within the
statute of limitations (Sta. Maria, p. 771).

Q.

When does the obligation to give support demandable? When is it payable?

A.

Demandable from the time the person has a right to receive the same needs it. It is
payable
only upon judicial or extrajudicial demand, and it should be paid
within the first five days of each corresponding month (Article 203, Family Code).

Q.

Does the right to support arise from the mere fact of relationship?

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213

A.

No. It arises from imperative necessity without which it cannot be demanded, and
the law presumes that such necessity does not exist unless support is demanded
(Jocson v. Empire Insurance Co. 103 Phil. 580).

Q.

Can a claimant get support in arrears?

A.

Yes (Mangonon v. CA 494 SCRA 1).

Q.

What are the options of the one who is obliged to give support?

A.

Fulfill the obligation by paying the allowance fixed, or by receiving and maintaining
the family dwelling the person who has a right to receive it.

Q.

Does the obligor always have a choice?

A.

No. Maintaining and receiving the family dwelling cannot be availed of in case
there is a moral or legal obstacle thereof (Article 204, Family Code)

Q.

Can the right to receive support, as well as any money or property obtained as
such be levied
up on attachment or execution?

A.

No (Article 205, Family Code).

Q.

Does a stranger/third person have a cause of action against the person who is
obliged to give support if the stranger/third person was the one who gave the
needed support even without the knowledge of the person required to give the
support?

A.

Yes, unless it appears he gave it without intention of being reimbursed (Article 206,
Family Code).

Q.

What are the requirements for a stranger to be reimbursed?

A.

1. The support has been furnished a dependent of one bound to give support but
who fails to do so.
2. The support was supplied by a stranger
3. The support was given without knowledge of the person charged with the duty to
give support (Ramirez and De Marciada v. Redfern, 49 Phil. 849)

Q.

What happens if the person obliged to give support unjustly refuses or fails to give
support when it is urgently needed?

A.

Any third party may furnish such support with a right to be reimbursed by the

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214

person obliged (Article 207, Family Code).


Q.

What are the requirements for Article 207 to apply?

A.

1. There is an urgent need to be supported


2. The person obliged to give support unjustly refuses or fails to give it
3. A third person furnishes the support to the needy individual (Sta. Maria, p. 776)

Q.

What is the resulting relationship between the third party and the person obliged
to give support?

A.

Quasi-contract (Sta. Maria, p. 774)

Q.

What is legal support?

A.

It is the one mandated by the law (Sta. Maria, p. 777)

Q.

What is contractual support?

A.

One which is entered into by the parties usually with reciprocal obligations, and is
not mandated by law (Sta. Maria, p. 777)

Q.

What is the difference between contractual support and support given by will?

A.

While both can be subject to levy on attachment or execution, when there is excess
in amount beyond that required for legal support, Contractual support can be a
subject of adjustment whenever modification is necessary (Article 208, Family
Code; Sta. Maria p. 777)

TITLE IX
PARENTAL AUTHORITY
Chapter 1
General Provisions
Article 209. Pursuant to the natural right and duty of parents over
the person and property of their unemancipated children, parental
authority and responsibility shall include the caring for and
rearing of such children for civic consciousness and efficiency and
the development of their moral, mental and physical character and
well-being. (n)

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PARENTAL AUTHORITY
General Provision

215

Q.

What is the nature of parental authority?

A.

Under the present concept of parental authority, the right of the parents to the
company and custody of their children is but ancillary to the proper discharge of
parental duties to provide the children with adequate support, education, moral,
intellectual and civic training, and development (Medina vs. Makabali, 27 SCRA
502; Luna vs. IAC, 137 SCRA 7).

Q.

Can a child below seven years old be separated from the mother?

A.

Thus, while our law recognizes the right of a parent to the custody of the child,
courts have not lost sight of the basic principle that in all questions of the care,
custody, education and property of the children, the latters welfare shall be
paramount and that for
compelling reasons, even a child under seven may be
ordered separated from the mother (Medina vs. Makabali, 27 SCRA 502; Luna vs.
IAC, 137 SCRA 7).

Q.

What is the coverage of parental authority?

A.

Parental authority is the sum total of the rights of parents over the person and
property of their children (2 Manresa 8, cited in Paras, Civil Code of the
Philippines, Annotated, Fourth
Ed., p. 591).
Article 210. Parental authority and responsibility may not be
renounced or transferred except in the cases authorized by law.
(313a)

Q.

May parental authority be renounced or transferred?

A.

Yes, parental authority and responsibility may be renounced or transferred in cases


provided by law. The right attached to parental authority, being purely personal,
the law allows a waiver of parental authority only in cases of adoption,
guardianship and surrender to a childrens home or orphan institution. Only in
cases of parents death, absence, or unsuitability may substitute parental authority
be exercised by the surviving parents (Santos vs. Court of Appeals, 58 SCAD 17,
242 SCRA 407).
It is a rule that parental authority is inalienable and every abdication of this
authority by the parents is void (1 Planiol and Ripert, 324; Bacayo vs. Calum, 35
[CA] 53 O.G. 8607). It cannot
be waived except under circumstances allowed
by law like adoption, guardianship or surrender to a childrens home or an orphan
asylum (See Act No. 3094). If a mother, as in Celia vs. Cafuin, 86 Phil. 554, would
surrender the custody of her child to another that is merely temporary it does
not deprive her of the right to get back or regain the custody of her child.

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PARENTAL AUTHORITY
General Provision

216

Article 211. The father and the mother shall jointly exercise
parental authority over the persons of their common children. In
case of disagreement, the fathers decision shall prevail, unless
there is a judicial order to the contrary. Children shall always
observe respect and reverence toward their parents and are
obliged to obey them as long as the children are under parental
authority. (17a, P.D. No. 603)
Q.

How is parental authority exercised?

A.

The father and the mother shall jointly exercise parental authority over the persons
of their common children. In case of disagreement, the fathers decision shall
prevail, unless there is a judicial order to the contrary.

Q.

Is joint parental authority only applicable to legitimate children?

A.
not

No, Article 211 of the Family Code uses the phrase common children which does
distinguish whether the said common children are legitimate or illegitimate.

Q.

What is needed for joint parental authority to apply to illegitimate children?

A.

Two requisites must concur: 1) the father is certain and 2) the illegitimate children
are living
with the said father and mother, who are cohabiting without benefit
of marriage or under a void marriage not falling under Article 36 and 53.

Q.

Is parental authority waivable?

A.

Once parental authority is vested, it cannot be waived except in cases of adoption,


guardianship and surrender to a childrens home or an orphan institution (SagalaEslao vs.
Court of Appeals, 78 SCAD 50, 266 SCRA 317) However, parental
authority can be
terminated in accordance with the legal grounds provided in
the Family Code.

Q.

How is the preferential choice of the father exercised?

A.

The binding force of the decision of the father in case of conflict is highlighted by the
law itself when it provides that only a court order can alter it. If the mother or the
children want
to change the decision of the father, they must go to court.
Article 212. In case of absence or death of either parent, the parent
present shall continue exercising parental authority. The
remarriage of the surviving parent shall not affect the parental
authority over the children, unless the court appoints another

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General Provision

217

person to be the guardian of the person or property of the children


(17a, P.D. No. 603).
Q.

Will death of one of the parents terminate parental authority?

A.

The death of one of the parents will not terminate the parental authority of the
surviving
parent over their children.

Q.

How about remarriage of the surviving parent to another?

A.

Upon remarriage of the surviving parent, the parental authority over the children
shall likewise not be affected. The new spouse, by virtue of his or her marrying the
surviving parent, does not automatically possess parental authority over the
children of the surviving parent unless such new spouse adopts the children. Upon
remarriage of the surviving parent, the court may appoint another person to be the
guardian of the person or property of the children if it is clearly shown that, by
reason of the remarriage, the surviving parent cannot undertake the necessary
devotion, care, loyalty and concern toward the children.
Article 213. In case of separation of the parents, parental authority
shall be exercised by the parent designated by the Court. 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. (n)
No child under seven years of age shall be separated from the
mother unless the court finds compelling reasons to order
otherwise.

Q.

If the child is seven years old and above, is his or her choice of a parent with whom
he or she will live conclusive upon the courts?

A.

If the child is seven years old and above, his or her choice of a parent with whom
he or she will live is significant and the court should take this into consideration.
However, such choice
is not determinative of the issue of custody because,
while the choice may be in favor of parent, the court may still nevertheless award
custody to the other parent or even to a third person if the paramount interest of
the child so dictates.

Q.

What is the nature of the word shall under Article 213 of the Family Code?

A.

The use of the word shall in Article 363 of the Civil Code (now Article 213 of the
Family
Code), coupled with the observations made by the Code Commission

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PARENTAL AUTHORITY
General Provision

218

in respect to the said


legal provision, underscores its mandatory character. It
prohibits in no uncertain terms the
separation of a mother and her child
below seven years, unless such separation is grounded upon compelling reasons as
determined by a court (Lacson vs. San Jose-Lacson, 24 SCRA 837). Thus, any
agreement by the parties unduly depriving the mother of the custody of her
children under seven years of age in the absence of any compelling reason to
warrant the same is null and void (Ibid.)
Q.

How may a mother be deprived of custody of a child under seven years of age? How
can it be shown?

A.

Compelling reason must be clearly shown by positive and clear evidence of the
unfitness of the mother and its determination is left to the sound discretion of the
courts (Medina vs. Makabali, 27 SCRA 502; Cervantes vs. Fajardo, 169 SCRA
575).

Q.

Is being a lesbian enough to deprive a mother of custody of a child under seven


years of age?

A.

No, it is not enough to show that the mother was lesbian. It must be shown that the
purported relationship with a person of the same sex in the presence of the child is
not conducive for the childs proper moral development (Gualberto vs. Rafaelito)

Q.

Is judgment of custody final and irreversible?

A.

The decisions of the courts, even the Supreme Court, on the custody of minor
children are always open to adjustments as the circumstances relevant to the
matter may demand in the light of the inflexible criterion, namely the paramount
interest of the children (Unson III vs.
Navarro, 101 SCRA 189).
Article 214. In case of death, absence or unsuitability of the parents,
substitute parental authority shall be exercised by the surviving
grandparent. In case several survive, the one designated by the
court taking into account the same consideration mentioned in the
preceding article, shall exercise the authority. (19a, P.D. No. 603)

Q.

When may substitute parental authority be exercised?

A.

It is in case of death of the parents or their unsuitability or absence that substitute


parental authority shall be exercised by the grandparents, but the law still
considers the welfare,
moral, and physical development of the child as the
most important consideration. The
rearing of the child for civic efficiency
shall be considered by the grandparents. The law says that it is in case of the
absence of the parents, death or unsuitability that the grandparents will exercise

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PARENTAL AUTHORITY
General Provision

219

parental authority; so, if the mother of the child is abroad, the custody of the child
should be given to the father since the father is still in a position to take care of the
child. This is especially so because parental authority and responsibility is
inalienable and
may not be transferred or renounced except in cases
authorized by law (Santos vs. CA, et. al., G.R. No. 113054, March 16, 1995, 59
SCAD 672).
Article 215. No descendant shall be compelled, in a criminal case, to
testify against his parents and grandparents, except when such
testimony is indispensable in a crime against the descendant or by
one parent against the other. (315a)
Q.

May a descendant testify against his parents in a criminal case?

A.

The privilege is solely addressed to the descendant-witness. He or she may or may


not testify
against his or her parents in a criminal case. If the descendant does
not want to testify, he or she cannot be compelled.

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Art. 216-219

PARENTAL AUTHORITY
Substitute and Special Parental Authority

220

Chapter 2
Substitute and Special Parental Authority
Art. 216. In default of parents or a judicially appointed guardian,
the following person shall exercise substitute parental authority
over the child in the order indicated:
(1) The surviving grandparent, as provided in Art. 214;
(2) The oldest brother or sister, over twenty-one years of age,
unless unfit or disqualified; and
(3) The child's actual custodian, over twenty-one years of age,
unless unfit or disqualified.
Whenever the appointment or a judicial guardian over the
property of the child becomes necessary, the same order of
preference shall be observed. (349a, 351a, 354a)
Q.

Why do persons exercising substitute parental authority have very important roles
to undertake?

A.

They have very important roles because they shall have all the rights of the parents
enumerated under in Article 220. They shall have the same authority over the
person of the child as the parents (Article 233). And they shall be civilly liable for
the injuries and damages caused by the acts or omissions of the unemancipated
children living in their company and under their parental authority.

Q.

Is the order in Article 216 mandatory?

A.

No.

Q.

What must be the basis of the custody and care of the child?

A.

Always, the paramount interest of the child must be the basis of the custody and
care.

Q.

What is the purpose of the order?

A.

The order must, as much as possible, be observed especially when all those
enumerated are equally fit to take care of the children.
Art. 217. In case of foundlings, abandoned neglected or abused
children and other children similarly situated, parental authority
shall be entrusted in summary judicial proceedings to heads of
children's homes, orphanages and similar institutions duly
accredited by the proper government agency. (314a)

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PARENTAL AUTHORITY
Substitute and Special Parental Authority

221

Q.

Who is a foundling?

A.

A foundling is a newborn child abandoned by its parents who are unknown.

Q.

Who is an abandoned child?

A.

An abandoned child is one who has no proper parental care or guardianship, or


whose parents or guardians have deserted him for a period of at least six
continuous months.

Q.

Who is a neglected child?

A.

A neglected child is one whose basic needs have been deliberately unattended or
inadequately attended. Neglect may either be physical neglect or emotional neglect.

Q.

Who is an abused child?

A.

An abused child can come within an emotionally neglected child: when children are
maltreated, raped or seduced; when children are exploited, overworked or made to
work under conditions not conducive to good health; or are made to beg in the
streets or public places, or when children are in moral danger, or exposed to
gambling, prostitution or other vices.

Q.

Who is a dependent child?

A.

A dependent child is one who is without a parent, guardian or custodian; or one


whose parent, guardian or custodian for good cause desires to be relieved of his care
and custody; and is dependent upon the public for support.

Q.

What is required to establish a child welfare agency?

A.

Any private person, natural or juridical, who shall establish a child welfare agency
must first secure a license from the Department of Social Welfare which shall not
be transferable and shall be used only by the person or institution to which it was
issued and the place stated therein. The license shall be granted if the purpose or
function of the agency is clearly defined and stated in writing which shall include
the geographical are to be served, the children to be accepted and the services to be
provided. The protection and best interests of the child shall be the first and basic
consideration in the granting, suspension or revocation of the license (PD 603).

Q.

How and to whom is parental authority transferred over these children?

A.

Parental authority over these children shall be entrusted in a summary proceeding


to heads of childrens homes, orphanages and similar institutions duly accredited
by the proper government agency.

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PARENTAL AUTHORITY
Substitute and Special Parental Authority

222

Q.

What is involuntary transfer of parental authority?

A.

The Department of Social Welfare Secretary or his authorized representative or


any duly-licensed child placement agency having knowledge of a child who appears
to be dependent, abandoned or neglected, may file a verified petition to the proper
court for the involuntary commitment of the child to the care of any duly licensed
child placement agency. After due hearing, when a child shall have been
committed, his parents or guardians shall thereafter exercise no authority over him
except upon such conditions as the court may impose. The Department of Social
Welfare or any duly licensed child placement agency or individual receiving a child
pursuant to the order of the court shall be the legal guardian.

Q.

What is voluntary transfer of parental authority?

A.

The parent or guardian of the child may voluntarily commit him to the Department
of Social Welfare or any duly licensed child placement agency or individual. The
child must be surrendered in writing by the parent or guardian to the Department
or duly licensed child placement agency.
Art. 218. The school, its administrators and teachers, or the
individual, entity or institution engaged in child are shall have
special parental authority and responsibility over the minor child
while under their supervision, instruction or custody.
Authority and responsibility shall apply to all authorized activities
whether inside or outside the premises of the school, entity or
institution. (349a)
Art. 219. Those given the authority and responsibility under the
preceding Article shall be principally and solidarily liable for
damages caused by the acts or omissions of the unemancipated
minor. The parents, judicial guardians or the persons exercising
substitute parental authority over said minor shall be subsidiarily
liable.
The respective liabilities of those referred to in the preceding
paragraph shall not apply if it is proved that they exercised the
proper diligence required under the particular circumstances.
All other cases not covered by this and the preceding articles shall
be governed by the provisions of the Civil Code on quasi-delicts. (n)

Q.

Who are given special parental authority?

A.

The school, its administrators and teachers, or the individual, entity or institution
engaged in child care.

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PARENTAL AUTHORITY
Substitute and Special Parental Authority

223

Q.

Over whom can such special parental authority be exercised?

A.

Only over minors while under their supervision, instruction or custody. The
authority or supervision also attaches to all activities whether inside or outside the
school, entity or institution.

Q.

What is the consequence of such special parental authority?

A.

They are civilly liable for acts and omissions of the minor. However, the liabilities
will not apply if it is proved that they exercised the proper diligence required under
the particular circumstances.

Q.

Who is the teacher referred to in this Article?

A.

The teacher must be the teacher-in-charge, the one designated by the dean,
principal or other administrative superior to exercise supervision over the pupils
and is the one immediately involved in the discipline of the student and has direct
control and influence over them. (Amadora v. Court of Appeals, 160 SCRA 315).

Q.

What is the liability of parents, judicial guardians or persons exercising substitute


parental authority?

A.

They shall be subsidiarily liable because while the child is in school, the said
persons do not have direct custody of the children. They shall only be liable if the
persons with special parental authority cannot satisfy their liability.

Q.

What is the defense of persons with special parental authority?

A.

The defense of the exercise of proper diligence required under the particular
circumstances.

Q.

What applies when the students are not minors?

A.

Article 2180 of the Civil Code.

Chapter 3
Effect of Parental Authority Upon the Persons of the
Children
Art. 220. The parents and those exercising parental authority shall
have with the respect to their unemancipated children on wards
the following rights and duties:

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PARENTAL AUTHORITY

224

Effect of Parental Authority Upon


the Persons of the Children
(1) To keep them in their company, to support, educate and instruct
them by right precept and good example, and to provide for their
upbringing in keeping with their means;
(2) To give them love and affection, advice and counsel,
companionship and understanding;
(3) To provide them with moral and spiritual guidance, inculcate in
them honesty, integrity, self-discipline, self-reliance, industry and
thrift, stimulate their interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
(4) To furnish them with good and wholesome educational
materials, supervise their activities, recreation and association
with others, protect them from bad company, and prevent them
from acquiring habits detrimental to their health, studies and
morals;
(5) To represent them in all matters affecting their interests;
(6) To demand from them respect and obedience;
(7) To impose discipline on them as may be required under the
circumstances; and
(8) To perform such other duties as are imposed by law upon
parents and guardians. (316a)
Q.

Where does the concept of parental rights and duties stem from?

A.

The laws concept of the family rests on the presumption that parents possess what
a child lacks in maturity, experience and capacity for judgment required for making
difficult life decisions. Also, it has been recognized that natural bonds of affection
lead parents to act in the best interest of the child.

Q.

Can the child, despite her wrong and seemingly incorrigible behavior, file an action
to compel the parents to provide support?

A.

There has been no case decided by the Supreme Court on this matter. However,
American decisions may be helpful. In Roe v. Doe, 29 NY 2d 188, 272 N.E. 2d 567,
324 NY S.2d 71 (1971), it was held that the actions of the child in disregarding the
parental authority of the parent forfeited her rights to demand support.
Art. 221. Parents and other persons exercising parental authority
shall be civilly liable for the injuries and damages caused by the

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PARENTAL AUTHORITY

225

Effect of Parental Authority Upon


the Persons of the Children
acts or omissions of their unemancipated children living in their
company and under their parental authority subject to the
appropriate defenses provided by law. (2180(2)a and (4)a )
Q.

What is the liability of parents and other persons exercising parental authority?

A.

They are principally and primarily liable for the acts or omission of their
unemancipated children resulting in injuries to others. For the liability to attach,
the child must be living in their company and under their parental authority.

Q.

What is the philosophy of parental liability?

A.

The principle of parental liability is a species of vicarious liability, or the doctrine of


imputed negligence, where a person is not only liable for torts committed by himself
but also for torts committed by other with whom he has a certain relationship and
for whom he is responsible. Parental liability is made a natural and logical
consequence of parental authority which includes the instructing, controlling and
disciplining of the child. (Tamargo v. Court of Appeals, 209 SCRA 518)

Q.

What is parental liability anchored upon?

A.

It is anchored upon parental authority coupled with presumed parental dereliction


in the discharge of the duties accompanying such authority.

Q.

How do you overturn the presumption of parental dereliction?

A.

The parents must show that they exercised the diligence of a good father of a family
to prevent the damage.

Q.

Who is liable when a minor child, who shot another person, was subject of adoption
proceedings but was still in the custody and parental authority of the natural
parents?

A.

The natural parents. Although the law provides that the adoption decree has a
retroactive effect that goes back to the filing of the petition for adoption, such
cannot apply to issues of vicarious liability of parents which can only attach, if at
the time of the incident, the child were under their custody and parental authority.
(Tamargo v. Court of Appeals, 209 SCRA 518)
Art. 222. The courts may appoint a guardian of the child's property
or a guardian ad litem when the best interests of the child so
requires. (317)

Q.

What is a guardianship?

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A.

A guardianship is a trust relation of the most sacred character, in which one


person, called a guardian, acts for another, called the ward, whom the law
regards as incapable of managing his own affairs (39 Am. Jur. 9).

Q.

Who is a guardian ad litem?

A.

Guardians ad litem are considered officers of the court in a limited sense, and the
office of such guardian is to represent the interest of the incompetent or minor.
(Rivero v. Court of Appeals, G.R. No. 141273, May 17, 2005, 458 SCRA 714)

Q.

What is the selection process?

A.

Appointment of a guardian ad litem is addressed to the sound discretion of the


court and designed to assist the court in the determination of the best interest of
the child (Rivero v. Court of Appeals, G.R. No. 141273, May 17, 2005, 458 SCRA
714).

Q.

Who cannot be appointed as a guardian?

A.

A court cannot appoint a guardian who is not personally subject to its jurisdiction
(Vancil v. Belmes, G.R. No. 132223, June 19, 2001).

AM No. 03-02-05-SC
Rule on Guardianship of Minors
Q.

In what cases will this rule apply?

A.

This Rule shall apply to petitions for guardianship over the person or
property, or both, of a minor. (Section 1, A.M. No. 03-02-05-SC) This Rule
amends Rules 92 to 97 inclusive of the Rules of Court on guardianship of
minors. Guardianship of incompetents who are not minors shall continue to
be under the jurisdiction of the regular courts and governed by the Rules of
Court. (Section 27, A.M. No. 03-02-05-SC)

Q.

Will the rule apply in case the father and the mother jointly exercise legal
guardianship over the person and property of their unemancipated common
child without the necessity of a court appointment?

A.

In such case, the rule shall be suppletory to the provisions of the Family Code
on Guardianship. (Section 1, A.M. No. 03-02-05-SC)

Q.

Who may petition for appointment of guardian?

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A.

Any relative or other person on behalf of a minor, or the minor himself if


fourteen (14) years of age or over. The petition may also be filed by the
Secretary of Social Welfare and Development and by the Secretary of Health
in the case of an insane minor who needs to be hospitalized. (Section 2, A.M.
No. 03-02-05-SC)

Q.

Where is the petition filed?

A.

Petition may be filed in the Family Court of the province or city where the
minor actually resides. If he resides in a foreign country, it shall be filed with
the Family Court of the province or city where his property or any part
thereof is situated. (Section 3, A.M. No. 03-02-05-SC)

Q.

What are the grounds for the appointment of a guardian?

A.

(1) death, continued absence, or incapacity of his parents; (2) suspension,


deprivation or termination of parental authority; (3) remarriage of his
surviving parent, if the latter is found unsuitable to exercise parental
authority; or (4) when the best interests of the minor so require. (Section 4,
A.M. No. 03-02-05-SC)

Q.

In appointing a guardian, what factors shall the court consider?

A.

The court shall consider the guardians: (a) moral character; (b) physical,
mental, and physical condition; (c) financial status; (d) relationship of trust
with the minor; (e) availability to exercise the powers and duties of a
guardian for the full period of the guardianship; (f) lack of conflict of interest
with the minor; and (g) ability to manage the property of the minor. (Section
5, A.M. No. 03-02-05-SC)

Q.

Who may be appointed as guardian?

A.

In default of parents or a court-appointed guardian, the court may appoint a


guardian, observing as far as, practicable, the following order of preference:
(a) the surviving grandparent and in case several grandparents survive, the
court shall select any of them taking into account all relevant considerations;
(b) the oldest brother or sister of the minor over twenty-one years of age,
unless unfit or disqualified; (c) the actual custodian of the minor over twentyone years of age, unless unfit or disqualified; and (d) any other person, who in
the sound discretion of the court, would serve the best interests of the minor.
(Section 6, A.M. No. 03-02-05-SC)

Q.

How is a guardian of a non-resident minor appointed?

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A.

Any relative or friend of such minor, or any one interested in his property, in
expectancy or otherwise, may petition the Family Court for the appointment
of guardian over the property. The court may dispense with the presence of
the non-resident minor. (Section 12, A.M. No. 03-02-05-SC)

Q.

What are the general duties of a guardian?

A.

A guardian shall have the care and custody of the person of his ward and the
management of his property, or only the management of his property. A
guardian shall perform the following duties: (a) To pay the just debts of the
ward out of the personal property and the income of the real property of the
ward, If the same is sufficient; otherwise, out of the real property of the ward
upon obtaining an order for its sale or encumbrance; (b) To settle all accounts
of his ward, and demand, sue for, receive all debts due him, or may, with the
approval of the court, compound for the same and give discharges to the
debtor on receiving a fair and just dividend of the property and effects; and to
appear for and represent the ward in all actions and special proceedings,
unless another person is appointed for that purpose; (c) To manage the
property of the ward frugally and without waste, and apply the income and
profits thereon, insofar as may be necessary, to the comfortable and suitable
maintenance of the ward; and if such income and profits be insufficient for
that purpose, to sell or encumber the real or personal property, upon being
authorized by the court to do so; (d) To consent to a partition of real or
personal property owned by the ward jointly or in common with others upon
authority granted by the court after hearing, notice to relatives of the ward,
and a careful investigation as to the necessity and propriety of the proposed
action; (e) To submit to the court a verified inventory of the property of his
ward within three months after his appointment, and annually thereafter,
the rendition of which may be required upon the application of an interested
person; (f) To report to the court any property of the ward not included in the
inventory which is discovered, or succeeded to, or acquired by the ward
within three months after such discovery, succession, or acquisition; and (g)
To render to the court for its approval an accounting of the property one year
from his appointment, and every year thereafter or as often as may be
required. (Section 17, A.M. No. 03-02-05-SC)

Q.

What are the grounds for removal of a guardian?

A.

When a guardian: (a) becomes insane or otherwise incapable of discharging


his trust or is found thereafter to be unsuitable; (b) has wasted or
mismanaged the property of the ward; or (c) has failed to render an account
or make a return for thirty days after it is due. However, no motion for

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removal shall be grated unless the guardian has submitted the proper
accounting of the property of the ward and the court has approved the same.
(Section 24, A.M. No. 03-02-05-SC)
Q.

Can a guardian resign?

A.

Yes. For justifiable causes. However, no motion for resignation shall be


grated unless the guardian has submitted the proper accounting of the
property of the ward and the court has approved the same. (Section 24, A.M.
No. 03-02-05-SC)

Q.

What are the grounds for termination of guardianship?

A.

When the ward has: (a) come of age; or (b) died, the court motu proprio or
upon verified motion of any person allowed to file a petition for guardianship
may terminate the guardianship. (Section 25, A.M. No. 03-02-05-SC)
Art. 223. The parents or, in their absence or incapacity, the
individual, entity or institution exercising parental authority,
may petition the proper court of the place where the child
resides, for an order providing for disciplinary measures over
the child. The child shall be entitled to the assistance of
counsel, either of his choice or appointed by the court, and a
summary hearing shall be conducted wherein the petitioner
and the child shall be heard.
However, if in the same proceeding the court finds the
petitioner at fault, irrespective of the merits of the petition, or
when the circumstances so warrant, the court may also order
the deprivation or suspension of parental authority or adopt
such other measures as it may deem just and proper. (318a)
Art. 224. The measures referred to in the preceding article may
include the commitment of the child for not more than thirty
days in entities or institutions engaged in child care or in
children's homes duly accredited by the proper government
agency.
The parent exercising parental authority shall not interfere
with the care of the child whenever committed but shall
provide for his support. Upon proper petition or at its own
instance, the court may terminate the commitment of the child
whenever just and proper. (391a)

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Q.

Who has the principal duty of undertaking measures to discipline children?

A.

The parents, provided that they do not treat their children inhumanly or
beyond what is absolutely necessary. However, if the children remain
incorrigible, the parents are given the right to seek the aid of the court to
impose other more drastic disciplinary measures for the childs improvement
and which the court may provide as warranted under the premises.

Q.

What is the measure imposable on the child?

A.

Commitment of the child for not more than thirty days in entities or
institutions engaged in child care or in childrens homes duly accredited by
the proper government agency. The parent exercising parental authority
shall not interfere with the care of the child whenever committed but shall
provide for his or her support.

R.A. No. 8972


Solo Parents Welfare Act of 2000
Q.

Who is a solo parent under the provisions of the law?

A.

(1) A woman who gives birth as a result of rape and other crimes against
chastity even without a final conviction of the offender: Provided, That the
mother keeps and raises the child; (2) Parent left solo or alone with the
responsibility of parenthood due to death of spouse; (3) Parent left solo or
alone with the responsibility of parenthood while the spouse is detained or is
serving sentence for a criminal conviction for at least one (1) year; (4) Parent
left solo or alone with the responsibility of parenthood due to physical and/or
mental incapacity of spouse as certified by a public medical practitioner; (5)
Parent left solo or alone with the responsibility of parenthood due to legal
separation or de facto separation from spouse for at least one (1) year, as long
as he/she is entrusted with the custody of the children; (6) Parent left solo or
alone with the responsibility of parenthood due to declaration of nullity or
annulment of marriage as decreed by a court or by a church as long as he/she
is entrusted with the custody of the children; (7) Parent left solo or alone with
the responsibility of parenthood due to abandonment of spouse for at least
one (1) year; (8) Unmarried mother/father who has preferred to keep and rear
her/his child/children instead of having others care for them or give them up
to a welfare institution; (9) Any other person who solely provides parental
care and support to a child or children; (10) Any family member who assumes
the responsibility of head of family as a result of the death, abandonment,

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disappearance or prolonged absence of the parents or solo parent. (Section 3,
RA 8972)
Q.

Will a change in status or circumstance of the parent terminate his or her


eligibility to claim benefits under the law?

A.

Yes. Such that he or she is no longer left alone with the responsibility of
parenthood. (Section 3, RA 8972)

Q.

Are all solo parents eligible to claim benefits under the law?

A.

No. Only those whose income in the place of domicile falls below the poverty
threshold as set by the National Economic and Development Authority
(NEDA) and subject to the assessment of the DSWD worker in the area shall
be eligible for assistance. However, any solo parent whose income is above
the poverty threshold shall enjoy the benefits mentioned in Sections 6
(flexible work schedule), 7 (no work discrimination) and 8 (parental leave) of
the Act.

Q.

What are the benefits which a solo parent is entitled to claim under the law?

A.

(a) flexible work schedule provided, the same shall not affect individual and
company productivity (Section 6); (b) no work discrimination with respect to
terms and conditions of employment on account of his or her status (Section
7); (c) parental leave, in addition to leave privileges under existing laws, of
not more than seven (7) working days every year if the solo parent employee
has rendered service for at least one (1) year (Section 8); (d) educational
benefits for both the solo parents and their children by DECS, CHED and
TESDA (i.e. scholarship programs in institutions of basic, tertiary and
technical or skills education; and non-formal education programs) (Section 9);
(e) housing benefits (Section 10); and (f) medical assistance (Section 11).

Chapter 4
Effect of Parental Authority Upon the Property of the
Children
Art. 225. The father and the mother shall jointly exercise legal
guardianship over the property of the unemancipated common
child without the necessity of a court appointment. In case of
disagreement, the father's decision shall prevail, unless there is a
judicial order to the contrary.

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Where the market value of the property or the annual income of
the child exceeds P50,000, the parent concerned shall be required
to furnish a bond in such amount as the court may determine, but
not less than ten per centum (10%) of the value of the property or
annual income, to guarantee the performance of the obligations
prescribed for general guardians.
A verified petition for approval of the bond shall be filed in the
proper court of the place where the child resides, or, if the child
resides in a foreign country, in the proper court of the place where
the property or any part thereof is situated.
The petition shall be docketed as a summary special proceeding in
which all incidents and issues regarding the performance of the
obligations referred to in the second paragraph of this Article shall
be heard and resolved.
The ordinary rules on guardianship shall be merely suppletory
except when the child is under substitute parental authority, or the
guardian is a stranger, or a parent has remarried, in which case the
ordinary rules on guardianship shall apply. (320a)
Q.

What is the reason for the P50,000 bench mark?

A.

The committee considers P50,00 as the amount when the property is valuable
enough to require a bond on the basis of the current valuation. (Minutes of the
186th Joint Meeting on the Civil Code and Family Law committees)

Q.

What does market value of the property of annual income of the child mean?

A.

It means the aggregate of the childs property or annual income. Thus, if the total of
the childs property or annual income exceeds P50,000, then the parents are
required to furnish a bond. (Pineda vs. CA, 226 SCRA 754)
Art. 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 support and education, unless the title or
transfer provides otherwise.
The right of the parents over the fruits and income of the child's
property shall be limited primarily to the child's support and
secondarily to the collective daily needs of the family. (321a, 323a)

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Art. 227. If the parents entrust the management or administration
of any of their properties to an unemancipated child, the net
proceeds of such property shall belong to the owner. 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, unless the owner, grants the entire proceeds to the
child. In any case, the proceeds thus give in whole or in part shall
not be charged to the child's legitime. (322a)
Q.

What is the scope of the parent or guardians authority over the estate of the child
or ward?

A.

It is limited only to acts of management or administration. Thus, parents cannot


execute acts of encumbrance or disposition. A sale of the wards realty by the
guardian without authority from the court is void.

Q.

Do parents have the power to compromise their childrens claims?

A.

No, for a compromise has always been deemed equivalent to an alienation and is an
act of strict ownership that goes beyond mere administration. (Visaya et al., vs.
Suguitan, et al., G.R. No. L-8300, November 18, 1955; Lindain vs. CA, 212 SCRA
725) The courts approval is necessary in compromises entered into by guardians,
parents, absentees representatives and administrators or executors of decedents
estates. (Article 2032 of New Civil Code)

Q.

What does the phrase all incidents and issues include?

A.

It may include the alienation, disposition, mortgaging or otherwise encumbering of


the property beyond P50,000. These incidents and issues shall be decided in an
expeditious and inexpensive manner without regard to technical rules in the same
proceeding where the bond was approved.

Q.

When will the rules on ordinary guardianship apply?

A.

In three instances: (a) when the child is under substitute parental authority; (b)
guardian is a stranger; or (c) a parent has remarried.

Q.

Is a child obliged to support his or her parents?

A.

Yes, according to Article 195 of the Family Code. The support can be taken from his
or her separate property if the parents need it and if the child can afford it.
Chapter 5. Suspension or Termination of Parental Authority

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Art. 228. Parental authority terminates permanently:
(1) Upon the death of the parents;
(2) Upon the death of the child; or
(3) Upon emancipation of the child. (327a)
Q.

What is the effect of Article 228?

A.

Parental authority is permanently terminated due to events that happen without


fault on the part of the parents. Here, parental authority cannot be revived.
Art. 229. Unless subsequently revived by a final judgment, parental
authority also terminates:
(1) Upon adoption of the child;
(2) Upon appointment of a general guardian;
(3) Upon judicial declaration of abandonment of the child in
a case filed for the purpose;
(4) Upon final judgment of a competent court divesting the
party concerned of parental authority; or
(5) Upon judicial declaration of absence or incapacity of the
person exercising parental authority. (327a)

Q.

Can the court appoint a guardian for the person and property of the child?

A.

Yes. Under Art. 20 of PD 603, the court can appoint a guardian on petition of any
relative or friend of the family or the DSWD.

Q.

Is parental authority terminated upon the parents act of compelling their


unemancipated minor daughter to marry against her will or the parents refusal to
consent to the marriage of their unemancipated minor children?

A.

No, this is not included in the causes established by the laws for depriving parents
of patria potestas and the custody of their unemancipated minor children.

Q.

Upon rescission of the adoption decree, who has parental authority over the
adoptee?

A.

The adoptees biological parents (if known) or the DSWDs legal custody shall be
restored.

Q.

What does abandonment mean?

A.

It is any conduct on the part of the parent which evinces a settled purpose to forego
all parental duties and relinquish all parental claims to the child. It means neglect

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or refusal to perform the natural and legal obligations of care and support which
they owe to their children.
Q.

What proof is needed in order for the court to issue a decree of termination of
parental authority?

A.

Clear, convincing and positive proofs.


Art. 230. Parental authority is suspended upon conviction of the
parent or the person exercising the same of a crime which carries
with it the penalty of civil interdiction. The authority is
automatically reinstated upon service of the penalty or upon
pardon or amnesty of the offender. (330a)

Q.

What is civil interdiction?

A.

It is an accessory penalty that involves the depravation of the offender during the
time of his or her sentence of the rights of parental authority, or guardianship,
either as to the person or property of any ward, of marital authority, of the right to
manage his property and of the right to dispose of such property by any act or
conveyance inter vivos. (Article 34, Revised Penal Code)
Art. 231. The court in an action filed for the purpose in a related
case may also suspend parental authority if the parent or the
person exercising the same:
(1) Treats the child with excessive harshness or cruelty;
(2) Gives the child corrupting orders, counsel or example;
(3) Compels the child to beg; or
(4) Subjects the child or allows him to be subjected to acts of
lasciviousness.
The grounds enumerated above are deemed to include cases which
have resulted from culpable negligence of the parent or the person
exercising parental authority.
If the degree of seriousness so warrants, or the welfare of the child
so demands, the court shall deprive the guilty party of parental
authority or adopt such other measures as may be proper under
the circumstances.
The suspension or deprivation may be revoked and the parental
authority revived in a case filed for the purpose or in the same
proceeding if the court finds that the cause therefor has ceased and
will not be repeated. (33a)

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Q.

What is the procedure to suspend parental authority?

A.

Under Art. 231, it can be judicially decreed in a case specifically filed for hat
purpose or in a related case. The phrase related case can be an off-shoot of an
incident or a collateral pronouncement in another case or an independent or
collateral proceeding.

Q.

May severe beating of a child be a ground to terminate parental authority?

A.

No, unless the circumstantial evidence is so strong and convincing that the only
conclusion that can be derived from the acts of the parents would cause the child
serious physical, mental, moral and emotional harm. (Blore vs. John and Susan Z.,
53 ALR 3d 592)
Art. 232. If the person exercising parental authority has subjected
the child or allowed him to be subjected to sexual abuse, such
person shall be permanently deprived by the court of such
authority. (n)

Q.

May the parental authority of father who has sexually abused his daughter be
revived upon a showing that he has reformed and will not subject his daughter to
the same abusive acts?

A.

No, his parental authority cannot be revived even if the reformation of the father is
authentic. It is a permanent deprivation.

Q.

What are the grounds for terminating parental authority under the Revised Penal
Code?

A.

When any ascendant, guardian, teacher or person entrusted un any capacity with
the care of a child under 16 years of age to deliver, either gratuitously or in
consideration of any price, compensation or promise such child to any habitual
vagrant or beggar, or to any person who, being an acrobat, gymnast, rope-walker,
diver, wild animal tamer or circus manager or engaged in a similar calling who
employs said children in exhibitions.
Art. 233. The person exercising substitute parental authority shall
have the same authority over the person of the child as the parents.
In no case shall the school administrator, teacher of individual
engaged in child care exercising special parental authority inflict
corporal punishment upon the child. (n)

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Q.

What is corporal punishment under Art. 233?

A.

It is the infliction of physical disciplinary measures to a student.

Q.

May a teacher be held feloniously liable for the criminal offense of slight physical
injuries?

A.

No. Where there was no criminal intent on the part of the teacher and where the
purpose was to discipline a student. (Bagajo vs. Marave, 86 SCRA 389)

Q.

May parents inflict corporal punishment?

A.

Yes. Only persons exercising special parental authority cannot inflict corporal
punishment. Parents and persons exercising substitute parental authority can
inflict it but must do it in a reasonable manner and not treat the child with
excessive harshness or cruelty.

Q.

May parents be held criminally liable?

A.

Yes, upon commission of the acts enumerated under Art. 59 of PD 603.

REPUBLIC ACT NO. 7610


Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act.
Q.

What is the legislation for the protection of children?

A.

On June 17, 1992, President Corazon Aquino approved Republic Act Number 7610,
otherwise known as the Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act.

Q.

Are children in prostitution criminals?

A.

No, they are deemed children exploited in prostitution and other sexual abuse.
Penalty is imposed on those who 1) who engage in or promote, facilitate or induce
child prostitution 2) commit the act of sexual intercourse or lascivious conduct with
a child exploited in prostitution or subjected to other sexual abuse (3) Those who
derive profit or advantage therefrom.

Q.

Who are children in prostitution?

A.

Under Article III, Children, whether male or female, who for money, profit, or any
other consideration or due to the coercion or influence of any adult, syndicate or
group, indulge in sexual intercourse or lascivious conduct, are deemed to be

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children exploited in prostitution and other sexual abuse.
Q.

Who may be liable for an attempt to commit child prostitution?

A.

(1) any person who, not being a relative of a child, is found alone with the said child
inside the room or cubicle of a house, motel, hotel, or other similar establishments,
vessel, vehicle or any other hidden or secluded area under circumstances which
would lead a reasonable person to believe that the child is about to be exploited in
prostitution and other sexual abuse.
(2) any person receiving services from a child in a sauna parlor or bath, massage
clinic, health club and other similar establishments.

Q.

What is child trafficking?

A.

It is committed by Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and selling of a child for
money, or for any other consideration, or barter

Q.

May a child be employed?

A.

Yes, children below 15 years of age may be employed and only when the following
minimum requirements are present:
(a) The employer shall secure for a work permit from the Department of Labor and
Employment;
(b) The employer shall ensure the protection, health, safety, and morals of the child;
(c) The employer shall institute measures to prevent exploitation or discrimination
taking into account the system and level of remuneration, and the duration and
arrangement of working time; and
(d) The employer shall formulate and implement continuous program for training
and skill acquisition of the child.

Q.

What is the prohibition on the employment of children?

A.

No person shall employ child models in all commercials or advertisements


promoting alcoholic beverages, intoxicating drinks, tobacco and its by-products, and
violence.

Q.

What are the protections given to children of indigenous cultural communities?

A.

Children of indigenous cultural communities shall be entitled to protection,


survival and development consistent with the customs and traditions of their
respective communities. They are also protected against any and all forms of

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discrimination. It is also the interest of the state to provide them access to
education and deliver basic social services in health and nutrition.
Q.

What is the policy for children in situations of armed conflict?

A.

They are declared as Zones of Peace. Thus, it shall be the responsibility of the State
and all other sectors concerned to resolve armed conflicts in order to promote the
goal of children as zones of peace. They shall be prioritized during evacuation as a
result of armed conflict.

Q.

What are the rights of children arrested for reasons related to armed conflict?

A.

Any child who has been arrested for reasons related to armed conflict, either
as combatant, courier, guide or spy is entitled to the following rights:
(a) Separate detention from adults except where families are accommodated as
family units;
(b) Immediate free legal assistance;
(c) Immediate notice of such arrest to the parents or guardian of the child; and
(d) Release of the child on recognizance within twenty- four (24) hours to the
custody of the Department of Social Welfare and Development or any responsible
member of the community as determined by the court.

Q.

Who may file a complaint for unlawful acts committed against children?

A.

The (a) Offended party; (b) Parents or guardians; (c) Ascendant or collateral
relative within the third degree of consanguinity; (d) Officer, social worker or
representative of a licensed child-caring institution; (e) Officer or social worker of
the Department of Social Welfare and Development; (f) Barangay chairman; or (g)
At least three (3) concerned responsible citizens where the violation occurred.

Q.

How are the protection accorded to offended children after the filing of a complaint
against their offenders?

A.

(1) The offended party shall be immediately placed under the protective custody of
the Department of Social Welfare and Development pursuant to Executive Order
No. 56, series of 1986.
(2) At the instance of the offended party, his name may be withheld from the public
until the court acquires jurisdiction over the case.

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(3) It shall be unlawful for any media to cause undue and sensationalized publicity
of any case of violation RA 7610 which results in the moral degradation and
suffering of the offended party.
(4) Cases involving violations of RA 7610 shall be heard in the chambers of the
judge of the Regional Trial Court duly designated as Juvenile and Domestic
Relations Court.

RULES ON EXAMINATION OF A CHILD WITNESS


Q.

When is the rule on examination of child witnesses applicable?

A.

Examination of child witnesses who are victims, accused, and witnesses to crime. It
shall apply in all criminal proceedings and non-criminal proceedings involving child
witnesses

Q.

How shall the rule be construed?

A.

Liberally, to uphold the best interests of the child, and to promote maximum
accommodation of child witnesses, without prejudice to the rights of the accused.

Q.

Who may be considered a child witness?

A.

Any person who, at the time of giving testimony, is below the age of 18 years. In
child abuse cases, a child includes one over 18 years but is found by the court as
unable to fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental disability or
condition.

Q.

Who is a guardian ad litem?

A.

A person appointed by the court where the case is pending for a child who is a
victim of, accused of, or a witness to a crime to protect the best interests of the said
child.

Q.

What are the powers and functions of the Guardian Ad Litem?

A.

Section 5. Guardian ad litem.


(a) The court may appoint a guardian ad litem for a child who is a victim of, accused
of, or a witness to a crime to promote the best interests of the child. In making the
appointment, the court shall consider the background of the guardian ad litem and
his familiarity with the judicial process, social service programs, and child
development, giving preference to the parents of the child, if qualified. The
guardian ad litem may be a member of the Philippine Bar. A person who is a

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witness in any proceeding involving the child cannot be appointed as a guardian ad
litem.
(b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings,
and trial proceedings in which a child participates; (2) Shall make
recommendations to the court concerning the welfare of the child; (3) Shall have
access to all reports, evaluations, and records necessary to effectively advocate for
the child, except privileged communications; (4) Shall marshal and coordinate the
delivery of resources and special services to the child; (5) Shall explain, in language
understandable to the child, all legal proceedings, including police investigations, in
which the child is involved; (6) Shall assist the child and his family in coping with
the emotional effects of crime and subsequent criminal or non-criminal proceedings
in which the child is involved; (7) May remain with the child while the child waits
to testify; (8) May interview witnesses; and (9) May request additional
examinations by medical or mental health professionals if there is a compelling
need therefor.
(c) The guardian ad litem shall be notified of all proceedings but shall not
participate in the trial. However, he may file motions pursuant to sections 9, 10, 25,
26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial
that questions asked of the child are not appropriate to his developmental level.
(d) The guardian ad litem may communicate concerns regarding the child to the
court through an officer of the court designated for that purpose.
(e) The guardian ad litem shall not testify in any proceeding concerning any
information, statement, or opinion received from the child in the course of serving
as a guardian ad litem, unless the court finds it necessary to promote the best
interests of the child.
(f) The guardian ad litem shall be presumed to have acted in good faith in
compliance with his duties described in sub-section (b).
Q.

What are the best interests of the child?

A.

The totality of the circumstances and conditions as are most congenial to the
survival, protection, and feelings of security of the child and most encouraging to
his physical, psychological, and emotional development. It also means the least
detrimental available alternative for safeguarding the growth and development of
the child.

Q.

What is the rule with regard to the qualification of the child as a witness?

A.

Every child is presumed qualified to be a witness. However, the court shall conduct
a competency examination of a child, motu proprio or on motion of a party, when it

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finds that substantial doubt exists regarding the ability of the child to perceive,
remember, communicate, distinguish truth from falsehood, or appreciate the duty
to tell the truth in court.
Q.

Who must prove the need for competency examinations?

A.

A party seeking a competency examination must present proof of necessity of


competency examination. The age of the child by itself is not a sufficient basis for a
competency examination. Moreover, to rebut the presumption of competence
enjoyed by a child, the burden of proof lies on the party challenging his competence.

Q.

Is the competency examination a final determination as to the competence of the


child?

A.

No. The court has the duty of continuously assessing the competence of the child
throughout his testimony.

Q.

When may the court appoint an interpreter for the child?

A.

Section 9. Interpreter for child. (a) When a child does not understand the English or Filipino language or is unable
to communicate in said languages due to his developmental level, fear, shyness,
disability, or other similar reason, an interpreter whom the child can understand
and who understands the child may be appointed by the court, motu proprio or
upon motion, to interpret for the child.
(b) If a witness or member of the family of the child is the only person who can
serve as an interpreter for the child, he shall not be disqualified and may serve as
the interpreter of the child. The interpreter, however, who is also a witness, shall
testify ahead of the child
(c) An interpreter shall take an oath or affirmation to make a true and accurate
interpretation.

Q.

When may the court appoint a facilitator to ask questions to the child?

A.

Section 10. Facilitator to pose questions to child.


(a) The court may, motu proprio or upon motion, appoint a facilitator if it
determines that the child is unable to understand or respond to questions asked.
The facilitator may be a child psychologist, psychiatrist, social worker, guidance
counselor, teacher, religious leader, parent, or relative.
(b) If the court appoints a facilitator, the respective counsels for the parties shall
pose questions to the child only through the facilitator. The questions shall either
be in the words used by counsel or, if the child is not likely to understand the same,

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in words that are comprehensible to the child and which convey the meaning
intended by counsel.
(c) The facilitator shall take an oath or affirmation to pose questions to the child
according to the meaning intended by counsel.
Q.

Who is a support person?

A.

Person chosen by the child to accompany him to testify at or attend a judicial


proceeding or disposition to provide emotional support for him.

Q.

What are the rules relevant to support persons?

A.

Section 11. Support persons.


(a) A child testifying at a judicial proceeding or making a deposition shall have the
right to be accompanied by one or two persons of his own choosing to provide him
emotional support. (1) Both support persons shall remain within the view of the
child during his testimony. (2) One of the support persons may accompany the child
to the witness stand, provided the support person does not completely obscure the
child from the view of the opposing party, judge, or hearing officer. (3) The court
may allow the support person to hold the hand of the child or take other
appropriate steps to provide emotional support to the child in the course of the
proceedings. (4) The court shall instruct the support persons not to prompt, sway,
or influence the child during his testimony.
(b) If the support person chosen by the child is also a witness, the court may
disapprove the choice if it is sufficiently established that the attendance of the
support person during the testimony of the child would pose a substantial risk of
influencing or affecting the content of the testimony of the child.

Q.

May the courtroom environment be adjusted to make the child more comfortable?

A.

Yes. Section 13 says: To create a more comfortable environment for the child, the
court may, in its discretion, direct and supervise the location, movement and
deportment of all persons in the courtroom including the parties, their counsel,
child, witnesses, support persons, guardian ad litem, facilitator, and court
personnel. The child may be allowed to testify from a place other than the witness
chair. The witness chair or other place from which the child testifies may be turned
to facilitate his testimony but the opposing party and his counsel must have a
frontal or profile view of the child during the testimony of the child. The witness
chair or other place from which the child testifies may also be rearranged to allow
the child to see the opposing party and his counsel, if he chooses to look at them,
without turning his body or leaving the witness stand. The judge need not wear his
judicial robe. Nothing in this section or any other provision of law, except official incourt identification provisions, shall be construed to require a child to look at the

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accused. Accommodations for the child under this section need not be supported by
a finding of trauma to the child.
Q.

May the child use testimonial aids during his / her testimony?

A.

Yes. The court shall permit a child to use dolls, anatomically-correct dolls, puppets,
drawings, mannequins, or any other appropriate demonstrative device to assist
him in his testimony.

Q.

May the child be allowed to have an emotional security item?

A.

Yes. While testifying, a child shall be allowed to have an item of his own choosing
such as a blanket, toy, or doll.

Q.

Does the examination of the child need to follow strictly the usual procedure for
examination of witnesses?

A.

No. Some exceptions are:


1. The court may allow leading questions in all stages of examination of a child if it
will further the interests of justice
2. The court may allow the child witness to testify in a narrative form
3. Objections must be couched in a manner so as not to mislead, confuse, frighten,
or intimidate the child.

Q.

Does the child witness testimony need to be corroborated?

A.

No. His / her testimony, if credible by itself, shall be sufficient.

Q.

On what grounds may the court exclude the public during the examination of a
child witness?

A.

Such an order may be made to protect the right to privacy of the child or if the court
determines on the record that requiring the child to testify in open court would
cause psychological harm to him, hinder the ascertainment of truth, or result in his
inability to effectively communicate due to embarrassment, fear, or timidity.

Q.

Does the child need to testify inside the courtroom?

A.

No. The prosecutor, counsel or the guardian ad litem may apply for an order that
the testimony of the child be taken in a room outside the courtroom and be
televised to the courtroom by live-link television. Also, the judge may question the
child in chambers, or in some comfortable place other than the courtroom, in the
presence of the support person, guardian ad litem, prosecutor, and counsel for the

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parties. The questions of the judge shall not be related to the issues at trial but to
the feelings of the child about testifying in the courtroom.
Q.

What are the grounds to allow testimony by live-link television?

A.

If there is a substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or the prosecutor as the case
may be.

Q.

What other similar measures may the court take aside from live-link television?

A.

The prosecutor or the guardian ad litem may apply for an order that the chair of
the child or that a screen or other device be placed in the courtroom in such a
manner that the child cannot see the accused while testifying. If the court grants
an application to shield the child from the accused while testifying in the
courtroom, the courtroom shall be arranged to enable the accused to view the child.

Q.
A.

May the testimony of the child be given through videotaped deposition?


Yes. If the court finds that the child will not be able to testify in open court at trial,
it shall issue an order that the deposition of the child be taken and preserved by
videotape.

Q.

Does the hearsay rule apply to childrens testimony?

A.

Not strictly, in child abuse cases. A statement made by a child describing any act or
attempted act of child abuse, not otherwise admissible under the hearsay rule, may
be admitted in evidence in any criminal or non-criminal proceeding subject to
certain rules found in Section 28 (a)

Q.

May the court admit videotape and audiotape interviews as evidence?

A.

Yes, under certain conditions imposed under Section 29.

Q.

What is the Sexual Abuse Shield Rule?

A.

Section 30. Sexual abuse shield rule. (a) Inadmissible evidence. - The following evidence is not admissible in any criminal
proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that
the alleged victim engaged in other sexual behavior; and (2) Evidence offered to
prove the sexual predisposition of the alleged victim.
(b) Exception. - Evidence of specific instances of sexual behavior by the alleged
victim to prove that a person other than the accused was the source of semen,
injury, or other physical evidence shall be admissible.

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A party intending to offer such evidence must: (1) File a written motion at least
fifteen (15) days before trial, specifically describing the evidence and stating the
purpose for which it is offered, unless the court, for good cause, requires a different
time for filing or permits filing during trial; and (2) Serve the motion on all parties
and the guardian ad litem at least three (3) days before the hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers and
afford the child, his guardian ad litem, the parties, and their counsel a right to
attend and be heard. The motion and the record of the hearing must be sealed and
remain under seal and protected by a protective order set forth in section 31(b). The
child shall not be required to testify at the hearing in chambers except with his
consent.
Q.

How is the privacy of the child protected?

A.

Any records regarding the child shall be confidential and kept under seal. Except
upon written request and order of the court, the record may only be released to
certain persons under Section 31(a). Moreover, any videotape or audiotape of a
child that is part of the court record shall be under a protective order as provided by
Section 31(b). The court may issue additional protection orders to protect the childs
privacy. Whoever publishes or causes to be published the identifying information of
the child or the immediate family of the child shall be liable to the contempt power
of the court. Any videotape or audiotape of a child made part of the court record
shall be destroyed after 5 years from the date of entry of judgment.

Q.

How are the ordinary rules of Court applied?

A.

Suppletorily.

TITLE X
EMANCIPATION AND AGE OF MAJORITY
Art. 234. Emancipation takes place by the attainment of majority.
Unless otherwise provided, majority commences at the age of
twenty-one years.
Emancipation also takes place:
(1) By the marriage of the minor; or
(2) By the recording in the Civil Register of an agreement in a
public instrument executed by the parent exercising parental
authority and the minor at least eighteen years of age. Such
emancipation shall be irrevocable. (397a, 398a, 400a, 401a)
Art. 235. The provisions governing emancipation by recorded
agreement shall also apply to an orphan minor and the person

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exercising parental authority but the agreement must be approved


by the court before it is recorded. (n)
Q.

Define emancipation?

A.

Emancipation takes place by the attainment of majority. In the Philippines,


majority is attained at the age of 18 years.
Art. 236. Emancipation for any cause shall terminate parental
authority over the person and property of the child who shall then
be qualified and responsible for all acts of civil life. (412a)

Q.

What happens when a person between 18 to 21 decides to marry without the


consent of his/her parents? Is the marriage valid, void, or voidable?

A.

Valid, Art. 236 of the Family Code does not make parental consent an essential
requirement nor a formal requirement of marriage in the sense that its absence
will render the marriage void. The requirement of parental consent in case of
marriage is a recognition of Filipino culture and tradition.
Art. 237. The annulment or declaration of nullity of the marriage of
a minor or of the recorded agreement mentioned in the foregoing.
Articles 234 and 235 shall revive the parental authority over the
minor but shall not affect acts and transactions that took place
prior to the recording of the final judgment in the Civil Register.
(n)

TITLE XI
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW
Chapter 1
Prefatory Provisions
Art. 238. Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply as regards separation in fact
between husband and wife, abandonment by one of the other, and
incidents involving parental authority. (n)

Chapter 2
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Separation in Fact
Art. 239. When a husband and wife are separated in fact, or one has
abandoned the other and 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, a
verified petition may be filed in court alleging the foregoing facts.
The petition shall attach the proposed deed, if any, embodying the
transaction, and, if none, shall describe in detail the said
transaction and state the reason why the required consent thereto
cannot be secured. In any case, the final deed duly executed by the
parties shall be submitted to and approved by the court. (n)
Q.

What is the remedy of a wife separated in fact with his husband who wants a
portion of their conjugal partnership of gains disposed to support the needs of their
child when the husband, just to spite the wife, does not agree to the alienation?

A.

The wife may seek judicial approval (Art. 239). The petition should be verified and
must detail the transaction and state the reason why the required consent thereto
cannot be secured.
Art. 240. Claims for damages by either spouse, except costs of the
proceedings, may be litigated only in a separate action. (n)
Art. 241. Jurisdiction over the petition shall, upon proof of notice to
the other spouse, be exercised by the proper court authorized to
hear family cases, if one exists, or in the regional trial court or its
equivalent sitting in the place where either of the spouses resides.
(n)
Art. 242. Upon the filing of the petition, the court shall notify the
other spouse, whose consent to the transaction is required, of said
petition, ordering said spouse to show cause why the petition
should not be granted, on or before the date set in said notice for
the initial conference. The notice shall be accompanied by a copy of
the petition and shall be served at the last known address of the
spouse concerned. (n)
Art. 243. A preliminary conference shall be conducted by the judge
personally without the parties being assisted by counsel. After the
initial conference, if the court deems it useful, the parties may be
assisted by counsel at the succeeding conferences and hearings. (n)

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249

Art. 244. In case of non-appearance of the spouse whose consent is


sought, the court shall inquire into the reasons for his failure to
appear, and shall require such appearance, if possible. (n)
Art. 245. If, despite all efforts, the attendance of the non-consenting
spouse is not secured, the court may proceed ex parte and render
judgment as the facts and circumstances may warrant. In any case,
the judge shall endeavor to protect the interests of the nonappearing spouse. (n)
Art. 246. If the petition is not resolved at the initial conference, said
petition shall be decided in a summary hearing on the basis of
affidavits, documentary evidence or oral testimonies at the sound
discretion of the court. If testimony is needed, the court shall
specify the witnesses to be heard and the subject-matter of their
testimonies, directing the parties to present said witnesses. (n)
Q.

What is the nature of proceedings for cases involving properties of spouses?

A.

Summary proceedings. (Art. 246)


Art. 247. The judgment of the court shall be immediately final and
executory. (n)
Art. 248. 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 the family
shall also be governed by these rules. (n)
Chapter 3. Incidents Involving Parental Authority
Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code
involving parental authority shall be verified.. (n)
Art. 250. Such petitions shall be verified and filed in the proper
court of the place where the child resides. (n)
Art. 251. Upon the filing of the petition, the court shall notify the
parents or, in their absence or incapacity, the individuals, entities
or institutions exercising parental authority over the child. (n)
Art. 252. The rules in Chapter 2 hereof shall also govern summary
proceedings under this Chapter insofar as they are applicable. (n)

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Q.

How about cases involving parental authority?

A.

Summary proceedings. This is for the benefit of the child. (Art 252)

250

Chapter 3
Incidents Involving Parental Authority
Art. 253. The foregoing rules in Chapter 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51,
69, 73, 96, 124 and 217, insofar as they are applicable.

TITLE XII
FINAL PROVISIONS
Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
Republic Act No. 386, otherwise known as the Civil Code of the
Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31, 39,
40, 41 and 42 of Presidential Decree No. 603, otherwise known as
the Child and Youth Welfare Code, as amended, and all laws,
decrees, executive orders, proclamations, rules and regulations, or
parts thereof, inconsistent herewith are hereby repealed.
Art. 255. If any provision of this Code is held invalid, all the other
provisions not affected thereby shall remain valid.
Art. 256. 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.
Art. 257. This Code shall take effect one year after the completion of
its publication in a newspaper of general circulation, as certified by
the Executive Secretary, Office of the President.
Publication shall likewise be made in the Official Gazette.

R.A. No. 8369


FAMILY COURTS
Q.

Where shall Family Courts be established?

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A.

It shall be established in every province and city in the country. If the city is the
capital of the province, the Family Court shall be established in the municipality
with the highest population. (Sec. 3)

Q.

What are the qualifications of Family Court Judges?

A.

He/she must be a natural-born citizen of the Philippines, at least 35 years of age,


and has been engaged in the practice of law in the Philippines for at least 10 years,
or has held a public office in the Philippines which requires admission to the
practice of law as an indispensable requisite. (Sec. 4)

Q.

What are the cases falling under the exclusive jurisdiction of Family Courts?

A.

See Section 5 of RA 8369.

Q.

What are the cases falling under the concurrent jurisdiction of Family Courts?

A.

In cases of habeas corpus involving minors, Family Courts, the Supreme Court, and
the Court of Appeals have concurrent jurisdiction. (Madrinan v Madrinan, GR No.
159374, July 12, 2007, 527 SCRA 487)

Q.

What are the special provisional remedies which a Family Court may grant?

A.

Family Court may issue a restraining order in cases of violence among immediate
family members living in the same domicile or household. It may also order the
temporary custody of children in all civil action for their custody. The court may
also order support pendent lite, including deduction from salary and use of conjugal
home and other properties in all civil actions for support. (Sec. 7)

Q.

When can a Family Court issue a restraining order?

A.

The Family Court may issue restraining order against the accused or defendant
upon verified application or defendant upon a verified application by the
complainant or the victim for relief from abuse. (Sec. 7)

Q.

Who has direct control and supervision of youth detention homes established by the
LGU?

A.

The judge of the Family Court. (Sec. 8)

Q.

What is the Social Services Counseling Division (SSCD)?

A.

The SSCD, under the guidance of the DSWD, as established in each judicial region
as the Supreme Court deems necessary, is tasked with providing appropriate social

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services to all juvenile and family cases filed with the court and recommend the
proper social action. It shall also develop programs, formulate uniform policies and
procedures, and provide technical supervision and monitoring of all SSCD in
coordination with the judge. (Sec. 9)
Q.

What is the composition of the SSCD?

A.

The SSCD shall be composed of qualified social workers and other personnel with
academic preparation in behavioral sciences. (Sec. 9)

Q.

In areas where there is no Family Court, who handles juvenile and family cases
filed in the RTC?

A.

The DSWD shall designate and assign qualified workers of the local government
units. (Sec. 10)

Q.

How are the decisions and orders of the Family Courts appealed?

A.

They shall be appealed in the same manner and subject to the same conditions as
appeals from the ordinary RTC. (Sec. 14)

TITLE X
FUNERALS
Article 305. The duty and the right to make arrangements for the
funeral of a relative shall be in accordance with the order
established for support, under article 294. In case of descendants of
the same degree, or of brothers and sisters, the oldest shall be
preferred. In case of ascendants, the paternal shall have a better
right.
Q.
Who has the duty and the right to make arrangements for a deceased relatives
funeral?
A.

This duty and right shall fall first on the spouse; and in his or her absence or
incapacity, on the descendants in the nearest degree. In their absence or incapacity,
it shall fall on the ascendants in the nearest degree and the paternal shall be
preferred. In the absence of all these persons, the duty and right shall fall on the
brothers and sisters and the oldest shall be preferred. (Art. 294 and 305)
Article 306. Every funeral shall be in keeping with the social
position of the deceased.

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Funerals
Article 307. The funeral shall be in accordance with the expressed
wishes of the deceased. In the absence of such expression, his
religious beliefs or affiliation shall determine the funeral rites. In
case of doubt, the form of the funeral shall be decided upon by the
person obliged to make arrangements for the same, after
consulting the other members of the family.
Q.

How shall the funeral rites be executed?

A.

The funeral shall be in keeping with the social position of the deceased. The
expressed wishes of the deceased shall be primarily followed. In its absence, is/her
religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the
form of the of the funeral shall be decided by the person obliged to make the
arrangements, after consulting with the other family members. (Art. 307)
Article 308. No human remains shall be retained, interred, disposed
of or exhumed without the consent of the persons mentioned in
articles 294 and 305.
Article 309. Any person who shows disrespect to the dead, or
wrongfully interferes with a funeral shall be liable to the family of
the deceased for damages, material and moral.

Q.

What happens if a person allows disrespect to the dead or wrongfully interferes


with a funeral?

A.

That person shall be made liable to the family of the deceased for material and
moral damages. (Art. 309)
Article 310. The construction of a tombstone or mausoleum shall be
deemed a part of the funeral expenses, and shall be chargeable to
the conjugal partnership property, if the deceased is one of the
spouses.

Q.

How shall the expenses for the construction of a tombstone or mausoleum be


treated?

A.

They are deemed part of the funeral expenses. If the deceased is one of the spouses
shall be chargeable to the conjugal partnership property.

TITLE XII
CARE AND EDUCATION OF CHILDREN

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Care and Education of Children


Article 356. Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or
guardian;
(4) Has a right to live in an atmosphere conducive to his
physical, moral and intellectual development.
Q.

What are the rights of a child?

A.

Every child is entitled to (1) parental care, (2) receive at least elementary education,
(3) moral and civic training by parents or guardians, and (4) the right to live in an
atmosphere conducive to his physical, moral and intellectual development. (Art.
356)
Article 357. Every child shall:
(1) Obey and honor his parents or guardian;
(2) Respect his grandparents, old relatives, and persons
holding substitute parental authority;
(3) Exert his utmost for his education and training;
(4) Cooperate with the family in all matters that make for the
good of the same.

Q.

What are the duties of a child?

A.

Every child shall: (1) obey and honor his parents or guardians, (2) respect his
grandparents, old relatives , and persons holding substitute parental authority, (3)
exert utmost for his education and training, and (4) cooperate with the family in all
matters that make for the good of the same. (Art. 357)
Article 358. Every parent and every person holding substitute
parental authority shall see to it that the rights of the child are
respected and his duties complied with, and shall particularly, by
precept and example, imbue the child with highmindedness, love of
country, veneration for the national heroes, fidelity to democracy
as a way of life, and attachment to the ideal of permanent world
peace.

Q.

What are the responsibilities of a parent and every person holding substitute
parental authority?

A.

They shall see to it that the rights of the child are respected and his duties complied
with. They shall, by example, imbue the child with high mindedness, love of

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country, veneration for national heroes, fidelity to democracy as a way of life, and
attachment to the ideal of permanent world peace. (Art. 358)
Article 359. The government promotes the full growth of the
faculties of every child. For this purpose, the government will
establish, whenever possible:
(1) Schools in every barrio, municipality and city where
optional religious instruction shall be taught as part of the
curriculum at the option of the parent or guardian;
(2) Puericulture and similar centers;
(3) Councils for the Protection of Children; and
(4) Juvenile courts.
Q.

What is the responsibility of the government to the child?

A.

The government promotes the faculties of every child. Whenever possible, it shall
establish (1) schools in every barrio, municipality and city where religious
instruction shall be taught at the option of the parents or guardians (2)
puericulture and similar centers, (3) Council for the Protection of Children And (3)
Juvenile Courts. (Art. 359)
Article 360. The Council for the Protection of Children shall look
after the welfare of children in the municipality. It shall, among
other functions:
(1) Foster the education of every child in the municipality;
(2) Encourage the cultivation of the duties of parents;
(3) Protect and assist abandoned or mistreated children, and
orphans;
(4) Take steps to prevent juvenile delinquency;
(5) Adopt measures for the health of children;
(6) Promote the opening and maintenance of playgrounds;
(7) Coordinate the activities of organizations devoted to the
welfare of children, and secure their cooperation.

Q.

What is the Council for the Protection of Children?

A.

It is the body entrusted with the function to look after the welfare of the children in
the municipality. See Article 360 for the enumeration of the functions of the
Council.
Article 361. Juvenile courts will be established, as far as
practicable, in every chartered city or large municipality.

Q.

What happens if a child is found delinquent by any court?

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A.

The father, mother, or guardian may, in proper cases, be judicially admonished.


(Art. 361)
Article 362. Whenever a child is found delinquent by any court, the
father, mother, or guardian may in a proper case be judicially
admonished.
Article 363. In all questions on the care, custody, education and
property of children the latter's welfare shall be paramount. No
mother shall be separated from her child under seven years of age,
unless the court finds compelling reasons for such measure.

Q.

What shall be considered in questions of care, custody, education and property of


children?

A.

In such cases, the childs welfare is paramount. In cases of custody, the mother
shall not be separated from her child, unless the court finds compelling reasons for
such measure. (Art. 363)

TITLE XIII
USE OF SURNAMES
Article 364. Legitimate and legitimated children shall principally
use the surname of the father.
Q.

What constitutes the name of an individual?

A.

1) The given or proper name and 2) the surname or family name. The given or
proper name is that which is given to the individual at birth or at baptism. The
surname or family is that which identifies the family to which he belongs and is
continued from parent to child. (In the matter of the adoption of Stephanie Nathy
Astorga Garcia 454 SCRA 541 March 31, 2005)

Q.

How is ones name constituted?

A.

The given name may be freely selected by the parents for the child while the
surname is fixed by law.

Q.

What is the significance of the middle name of a person?

A.

It serves to identify the maternal lineage or filiation of a person and further


distinguishes the person from another who may have the same given and surname.

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Q.

May a legitimate / legitimated child use the surname of his / her mother?

A.

Yes. The word principally in Art.364 is not equivalent to exclusively. There is no


legal bar to a child who opts to choose the surname of his / her mother. (Alfon v.
Republic 97 SCRA 858 May 29, 1980)
Article 365. An adopted child shall bear the surname of the adopter.
Article 366. A natural child acknowledged by both parents shall
principally use the surname of the father. If recognized by only one
of the parents, a natural child shall employ the surname of the
recognizing parent.
Article 367. Natural children by legal fiction shall principally
employ the surname of the father.
Article 368. Illegitimate children referred to in article 287 shall bear
the surname of the mother.
Article 369. Children conceived before the decree annulling a
voidable marriage shall principally use the surname of the father.

Q.

May illegitimate children use the surname of their father?

A.

Yes. Illegitimate children may use the surname of their father if their filiation has
been expressly recognized by the father through the record of birth appearing in the
civil register or when an admission in a public document or private handwritten
instrument is made by the father.
Article 370. A married woman may use:
(1) Her maiden first name and surname and add her
husband's surname, or
(2) Her maiden first name and her husband's surname or
(3) Her husband's full name, but prefixing a word indicating
that s she is his wife, such as "Mrs."

Q.

May a married woman maintain her name and surname?

A.

Yes. Art. 370 is directory and permissive in character. A married woman can
maintain her name and surname or follow any of the names in Art. 370.

Q.

May a married woman who used her husbands surname in her passport revert to
using her maiden surname in case of renewal?

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A.

No. Under R.A No. 8239, a married woman who initially used the surname of her
husband in her passport can revert to her maiden surname in subsequent renewals
only if the marriage were annulled or nullified or the woman obtained a valid
divorce abroad. (Remo v. Honorable Secretary of Foreign Affairs, GR No.169202,
March 5, 2010)
Article 371. In case of annulment of marriage, and the wife is the
guilty party, she shall resume her maiden name and surname. If
she is the innocent spouse, she may resume her maiden name and
surname. However, she may choose to continue employing her
former husband's surname, unless:
(1) The court decrees otherwise, or
(2) She or the former husband is married again to another
person.
Article 372. When legal separation has been granted, the wife shall
continue using her name and surname employed before the legal
separation.
Article 373. A widow may use the deceased husband's surname as
though he were still living, in accordance with article 370.
Article 374. In case of identity of names and surnames, the younger
person shall be obliged to use such additional name or surname as
will avoid confusion.
Article 375. In case of identity of names and surnames between
ascendants and descendants, the word "Junior" can be used only by
a son. Grandsons and other direct male descendants shall either:
(1) Add a middle name or the mother's surname, or
(2) Add the Roman numerals II, III, and so on.

Q.

May a female person use the word Junior in her name?

A.

No. Under Art. 375, the word Junior can be used only by a son. N.B: RA No.
10172 has amended Sec.1 of RA No. 9048, SECTION 1. Authority to Correct
Clerical or Typographical Error and Change of First Name or Nickname. No
entry in a civil register shall be changed or corrected without a judicial order,
except for clerical or typographical errors and change of first name or nickname, the
day and month in the date of birth or sex of a person where it is patently
clear that there was a clerical or typographical error or mistake in the
entry, which can be corrected or changed by the concerned city or municipal civil

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registrar or consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
Article 376. No person can change his name or surname without
judicial authority.
Article 377. Usurpation of a name and surname may be the subject
of an action for damages and other relief.
Article 378. The unauthorized or unlawful use of another person's
surname gives a right of action to the latter.
Q.

May a male person who became biologically a woman through sexual reassignment
use this as a ground to change his name?

A.

No. A persons sex is immutable from birth. (Silverio v. Republic 537 SCRA 373
October 19, 2007) N.B: In Republic v. Cagandahan (565 SCRA 72), a change was
allowed by the S.C where the person did not undergo sexual reassignment in a case
where the person was found to have Congenital Adrenal Hyperplasia (CAH) which
was a rare biological condition where the person had the sex organs of a male and a
female, had no menstruation, no breasts as a woman, and was wanting in womanhormones.

Q.

Does a change of name alter the status of persons?

A.

No. A change of name does not alter family relations, rights or duties, legal
capacity, civil status or citizenship. (Calderon v. Republic, 19 SCRA 721)
Article 379. The employment of pen names or stage names is
permitted, provided it is done in good faith and there is no injury to
third persons. Pen names and stage names cannot be usurped.
Article 380. Except as provided in the preceding article, no person
shall use different names and surnames.

Q.

Is the employment of pen names or stage names allowed?

A.

Yes. Provided that it is done in good faith and there is no injury to third persons.

TITLE XIV
ABSENCE

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Chapter 1
Provisional Measures in Case of Absence
Article 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to
administer his property, the judge, at the instance of an interested
party, a relative, or a friend, may appoint a person to represent him
in all that may be necessary.
This same rule shall be observed when under similar
circumstances the power conferred by the absentee has expired.
(181a)
Article 382. The appointment referred to in the preceding article
having been made, the judge shall take the necessary measures to
safeguard the rights and interests of the absentee and shall specify
the powers, obligations and remuneration of his representative,
regulating them, according to the circumstances, by the rules
concerning guardians. (182)
Article 383. In the appointment of a representative, the spouse
present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor,
any competent person may be appointed by the court. (183a)
Q.

Is court appointment of a representative necessary?

A.

Yes. It should be by way of a court order. Ablang v. Fernandez, 25 Phil. 33

Q.

Is the phrase spouse present is a minor still effective?

A.

No. It has been repealed by R.A. No. 6809 which lowered the emancipation age to
18.

Chapter 2
Declaration of Absence
Article 384. Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years in case
the absentee has left a person in charge of the administration of his
property, his absence may be declared. (184)

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Article 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an
authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee
some right subordinated to the condition of his death. (185)
Article 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general
circulation. (186a)
Q.

Whose interests does a Judicial Declaration of absence protect?

A.

Interested persons, including the absentee.

Q.

What is the effect of a Judicial Declaration of absence to the present spouse?

A.

It is a cause for an involuntary judicial separation of property between spouses


under Art. 135 of the Family Code. Furthermore, it is a ground for the transfer of
all classes of exclusive properties of a spouse to his or her other spouse under Art.
142 of the Family Code. Lastly, it is a basis for the termination of parental
authority under Art. 224 of the Family Code.

Q.

When should the absence of the absentee be counted?

A.

Date on which the last news of the absentee was received. (Jones v. Hortiguela, 64
Phil. 179)

Chapter 3
Administration of the Property of the Absentee
Article 387. An administrator of the absentee's property shall be
appointed in accordance with article 383. (187a)
Article 388. The wife who is appointed as an administratrix of the
husband's property cannot alienate or encumber the husband's
property, or that of the conjugal partnership, without judicial
authority. (188a)
Q.

Does Art. 388 likewise prohibit the husband from alienating properties of the wife
without her consent?

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A.

Yes. Under the Family Code, rights of the spouses as to their respective exclusive
properties are respected.
Article 389. The administration shall cease in any of the following
cases:
(1) When the absentee appears personally or by means of an
agent;
(2) When the death of the absentee is proved and his testate
or intestate heirs appear;
(3) When a third person appears, showing by a proper
document that he has acquired the absentee's property by
purchase or other title.
In these cases the administrator shall cease in the performance of
his office, and the property shall be at the disposal of those who
may have a right thereto. (190)

Q.

What is the purpose of appointing an administrator?

A.

Protect the properties of the owner during his/her absence.

Chapter 4
Presumption of Death
Article 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead
for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
(n)
Article 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an
aeroplane which is missing, who has not been heard of for four
years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war,
and has been missing for four years;

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(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four years.
(n)
Article 392. If the absentee appears, or without appearing his
existence is proved, he shall recover his property in the condition
in which it may be found, and the price of any property that may
have been alienated or the property acquired therewith; but he
cannot claim either fruits or rents. (194)
Q.

How should absence be understood?

A.

A person is not at the place of his domicile and his actual residence is unknown,
and it is for this reason that his existence is doubtful.

Q.

Is mere removal alone sufficient?

A.

No. Gorham v. Settegast, 98 SW 655

Q.

Do you need to file a case to declare the presumption of death?

A.

General rule, No. Except for purposes of remarriage under Art. 41 of Family Code.

Q.

Can a person claim under Art. 391 when a person fell into the sea while on board a
vessel and consequently drowned?

A.

No because the vessel was not lost during a sea voyage. Caltex v. Villanueva, 2
SCRA 897

Q.

When does the presumption of death start?

A.

Time when the person was last heard of and not at the end of the period.
Chapter 5. Effect of Absence Upon the Contingent Rights of the Absentee
Article 393. Whoever claims a right pertaining to a person whose
existence is not recognized must prove that he was living at the
time his existence was necessary in order to acquire said right.
(195)

Q.

X made a donation of a house to Y to be given on January 5, 1990 and likewise


promised to give another donation of a specific car also to Y in the event that Y
would still be alive by January 2, 1991. If after December 25, 1990, Y was nowhere
to be found, what are the rights of the heirs?

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A.

The heirs of Y can claim that the car already belongs to Y after January 2, 1991 by
proving that Y was alive on such date.
Article 394. Without prejudice to the provision of the preceding
article, upon the opening of a succession to which an absentee is
called, his share shall accrue to his coheirs, unless he has heirs,
assigns, or a representative. They shall all, as the case may be,
make an inventory of the property. (196a)
Article 395. The provisions of the preceding article are understood
to be without prejudice to the action of petition for inheritance or
other rights which are vested in the absentee, his representatives
or successors in interest. These rights shall not be extinguished
save by lapse of time fixed for prescription. In the record that is
made in the Registry of the real estate which accrues to the coheirs,
the circumstance of its being subject to the provisions of this article
shall be stated. (197)
Article 396. Those who may have entered upon the inheritance
shall appropriate the fruits received in good faith so long as the
absentee does not appear, or while his representatives or
successors in interest do not bring the proper actions. (198)

TITLE XVI
CIVIL REGISTER
Article 407. Acts, events and judicial decrees concerning the civil
status of persons shall be recorded in the civil register. (325a)
Q.
A.

What are the duties of the local civil registrar?


a. file registerable certificates and documents presented to them for entry;
b. compile the same monthly and prepare and send any information required of them
by the Civil Registrar General;
c. issue certified transcripts or copies of any certificate or document registered, upon
payment of the proper fees;
d. order the binding, properly classified, of all certificates or documents registered
during the year;
e. send to the Civil Registrar-General during the first ten days of each month, a copy
of the entries made during the preceding month, for filing;
f. index the same to facilitate search and identification in case any information is

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required; and
g. administer oaths, free of charge, for civil register purposes (Section 12 of the Civil
Registry Law, Act No. 3753).
Article 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss,
or (12) recovery of citizenship; (13) civil interdiction; (14) judicial
determination of filiation; (15) voluntary emancipation of a minor;
and (16) changes of name. (326a)
Article 409. In cases of legal separation, adoption, naturalization
and other judicial orders mentioned in the preceding article, it
shall be the duty of the clerk of the court which issued the decree to
ascertain whether the same has been registered, and if this has not
been done, to send a copy of said decree to the civil registry of the
city or municipality where the court is functioning. (n)
Article 410. 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. (n)
Q.

Can the local civil registrar allow the removal of documents entrusted to his
care?

A.

No except by court order.

Q.

Does the Civil Register Law provide for constructive notice to all persons of any
document filed in the Office of the Local Civil Registrar or Office of the Civil
Registrar General?

A.

No.

Q.

What does prima facie evidence mean?

A.

Proofs which, if remaining unrebutted or uncontradicted, is sufficient to maintain


the fact such evidence seeks to substantiate. It creates a presumption of fact.
Malicden v. Republic, 12 SCRA 313
Article 411. Every civil registrar shall be civilly responsible for any
unauthorized alteration made in any civil register, to any person
suffering damage thereby. However, the civil registrar may exempt

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himself from such liability if he proves that he has taken every
reasonable precaution to prevent the unlawful alteration. (n)
Article 412. No entry in a civil register shall be changed or
corrected, without a judicial order. (n)
Q.

Is Art. 412 still good law?

A.

No. It has been amended by R.A. No. 9048

Q.

What does clerical error mean?

A.

Error in copying or writing. (Yu v. Republic 21 SCRA 1018)

Q.

Does a change in civil status and nationality involve a clerical error?

A.

No. It is a substantial change which has to pass through judicial proceedings


Article 413. All other matters pertaining to the registration of civil
status shall be governed by special laws. (n)

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