Professional Documents
Culture Documents
Bar Tips
Bar Tips
2.
Under Article 15, the Philippines follows the nationality theory. Family
rights and duties, status and legal capacity of Filipinos are governed by
Philippine law.
(3)
Even if the foreign marriage did not comply with either s 2 and 3
of Article 35, Philippine law will recognize the marriage as valid as long
as it is valid under foreign law.
Art. 16, 1.
Real property as well as personal property is
subject to the law of the country where it is stipulated.
Lex situs or lex rei sitae governs real or personal property (property is
subject to the laws of the country in which it is located).
In Tayag vs. Benguet consolidated, the SC said that Philippine law shall
govern in cases involving shares of stock of a Philippine corporation even
if the owner is in the US.
In Miciano vs. Brimo, the SC said that the will of a foreigner containing
the condition that the law of the Philippines should govern regarding the
distribution of the properties is invalid.
In Aznar vs. Garcia, what was involved was the renvoi doctrine. In this
case, the decedent was a citizen of California who resided in the
Philippine. The problem was that under Philippine law, the national law
of the decedent shall govern. On the other hand, under California law,
the law of the state where the decedent has his domicile shall govern.
The SC accepted the referral by California law and applied Philippine law
(single renvoi).
Philippine while the law of the domicile should govern with respect to
properties located in the state of domicile.
Art. 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.
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.
General Rule: Foreign marriages which are in accordance with the law
in force in the country where they were solemnized and valid there are
valid in the Philippines.
Art. 35.
beginning:
Exception: In case the parties to the marriage are a Filipino citizen and
a foreigner. If the foreigner obtains a valid foreign divorce, the Filipino
spouse shall have capacity to re-marry under Philippine law.
2.
3.
4.
Problem: Suppose at the time of the marriage, both are Filipinos. Later
on, one spouse is naturalized. This spouse obtains a foreign divorce.
Will Article 26, 2 apply?
2 views:
1. Justice Puno
2. DOJ Opinion
It applies, Article 26, 2 is not specific.
Psychological Incapacity (Article 36)
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.
During the 1st years of the effectivity of the Family Code, many
couples resorted to Article 36 as a convenient way to end their
marriage. As a result of these abuses, the Supreme Court
became very strict in applying Article 36.
by
experts
(i.e.
psychiatrists,
In Chi Ming Tsoi vs. CA, the convergence of all the factors
stated in the complaint amounted to psychological incapacity.
x----------------------------------------x
COHABITATION OF 5 YEARS exempted from securing marriage
license
Art. 76. No marriage license shall be necessary when a man and a
woman who have attained the age of majority and who, being
unmarried, have lived together as husband and wife for at least five
years, desire 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 official, priest or minister who
solemnized the marriage shall also state in an affidavit that he took
steps to ascertain the ages and other qualifications of the
contracting parties and that he found no legal impediment to the
marriage. (n)
General Rule: During the marriage, the spouses may not donate
to one another.
NOTE:
Article 87 is applicable
(Matabuena vs. Cervantes)
to
common-law
spouses
The charges upon the CPG are parallel to the charges on the
ACP.
(4)
(9)
For Articles 147 and 148 to apply, the persons living together as
husband and wife must still be of different sexes.
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 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.
1.
2.
3.
4. The man and the woman are not married to each other or are
married to each other but the marriage is void.
Under Article 147, the property regime between the man and the
woman would be special co-ownership.
be
terminated
until
the
2.
Article 148 governs live-in partners who do not fall under Article
147.
2.
If the party who acted in bad faith is not validly married to another his or
her share shall be forfeited to their common children or descendants. In
the absence of descendants, such share shall belong to the innocent party.
x----------------------------------------x
PROOF OF FILIATION
Art. 172. The filiation of legitimate children is established by any of
the following:
(1)
(2)
The 2nd paragraph of Article 213 provides that no child under 7 years of
age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise.
In earlier cases, the mother was almost always the custodian of a child
who is below 7 years. There is a trend of liberalizing this. Courts will
always look at the best interest of the child as the criterion.
x----------------------------------------x
STRICT STANDARD APPROACH1
This is a test to ensure that a petition for declaration of presumptive death
under Article 41 of the Family Code is not used as a tool to conveniently
circumvent the laws. Courts should never allow procedural shortcuts and
should ensure that the stricter standard required by the Family Code is met.
1 Republic v. Cantor G.R. No. 184621, December 10, 2013
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)
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)
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)
Section 3. Article 236 of the same Code is also hereby amended to read as
follows:
"Art. 236. Emancipation 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, save the exceptions established by
existing laws in special cases.
"Contracting marriage shall require parental consent until the age of
twenty-one.
"Nothing in this Code shall be construed to derogate from the duty or
responsibility of parents and guardians for children and wards below
twenty-one years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code."
Section 4. Upon the effectivity of this Act, existing wills, bequests,
donations, grants, insurance policies and similar instruments containing
references and provisions favorable to minors will not retroact to their
prejudice.
Section 5. This Act shall take effect upon completion of its publication in at
least two (2) newspapers of general circulation.
Approved: December 13, 1989
x--------------------------------------------x
SSS Form E-1 (Exhibit "G") to prove filiation. It was erroneous for the CA
to treat said document as mere proof of open and continuous possession of
the status of a legitimate child under the second paragraph of Article 172 of
the Family Code; it is evidence of filiation under the first paragraph thereof,
the same being an express recognition in a public instrument.
To repeat what was stated in De Jesus, filiation may be proved by an
admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned, and such due
recognition in any authentic writing is, in itself, a consummated act of
acknowledgment of the child, and no further court action is required. And,
relative to said form of acknowledgment, the Court has further held that:
In view of the pronouncements herein made, the Court sees it fit to adopt
the following rules respecting the requirement of affixing the signature of
the acknowledging parent in any private handwritten instrument wherein
an admission of filiation of a legitimate or illegitimate child is made:
1) Where the private handwritten instrument is the lone piece of
evidence submitted to prove filiation, there should be strict
compliance with the requirement that the same must be signed by the
acknowledging parent; and
2) Where the private handwritten instrument is accompanied by other
relevant and competent evidence, it suffices that the claim of filiation
therein be shown to have been made and handwritten by the
acknowledging parent as it is merely corroborative of such other
evidence. Our laws instruct that the welfare of the child shall be the
"paramount consideration" in resolving questions affecting him.
Article 3(1) of the United Nations Convention on the Rights of a Child
of which the Philippines is a signatory.
While Art. 133 of the Civil Code considers as void a "donation between the
spouses during the marriage", policy considerations of the most exigent
character as well as the dictates of morality require that the same
prohibition should apply to a common-law relationship. A 1954 Court of
Appeals decision Buenaventura v. Bautista, (50 O.G. 3679) interpreting a
similar provision of the old Civil Code speaks unequivocally. If the policy of
the law is, in the language of the opinion of the then Justice J.B.L. Reyes of
that Court, "to prohibit donations in favor of the other consort and his
descendants because of fear of undue and improper pressure and influence
upon the donor, a prejudice deeply rooted in our ancient law; then there is
every reason to apply the same prohibitive policy to persons living together
as husband and wife without benefit of nuptials. For it is not to be doubted
that assent to such irregular connection for thirty years bespeaks greater
influence of one party over the other, so that the danger that the law seeks
to avoid is correspondingly increased. Moreover, as already pointed out by
Ulpian (in his lib. 32 ad Sabinum, fr. 1), it would not be just that such
donations should subsist lest the condition of those who incurred guilt
should turn out to be better. So long as marriage remains the cornerstone of
our family law, reason and morality alike demand that the disabilities
attached to marriage should likewise attach to concubinage.
PROPERTY
ART. 415 IMMOVABLE PROPERTY
Classes of immovable or real property (NIDA)
1. By nature (cannot be carried from place to place)
2. By incorporation (attached to an immovable in a fixed manner to be an
integral part thereof)
3. By destination (placed in an immovable for the utility it gives)
4. By analogy (by express provision of law because it is regarded as united
to the immovable property)
Lands, buildings, roads and constructions of all kinds
Immovable when:
o Placed on the immovable by the owner of the latter, and
utility
Animal houses, pigeon houses, beehives, fish ponds or breeding places of
similar nature
Considered immovable:
o In case their owner has placed them or preserves them
o With the intention to have them permanently attached to the land
o And forming a permanent part of it.
o The animals in these places are included.
Must permanently form part of the land and so intended by the owner
Immovable when
o Actually used on a piece of land
Fertilizers kept in a barn are not immovable
Immovable when
o While the matter thereof forms part of the bed
o Meaning, the matter thereof remains unsevered from the soil
Waters, either running or stagnant, are classified as immovables
Immovable if
o Intended by their nature and object
o To remain at a fixed place on
o A river, lake or coasts
Contracts for public works and servitudes and other real rights over
immovables
Where the res of a real right is real property, the right itself is real
property. So ownership is real property if the thing owned is immovable
o Loan is real property by analogy if secured by a real estate
mortgage
Where it is personal property, the right itself is personal property
o Exception: case of contracts for public works which are considered
real property
ART. 448. The owner of the land on which anything has been built, sown or
planted in good faith, shall have the right to appropriate as his own the
works, sowing or planting, after payment of the indemnity provided for in
articles 546 and 548, or to oblige the one who built or planted to pay the
price of the land, and the one who sowed, the proper rent. However, the
builder or planter cannot be obliged to buy the land if its value is
considerably more than that that of the building or trees. In such case, he
shall pay reasonable rent, if the owner of the land does not choose to
appropriate the building or trees after proper indemnity. The parties shall
agree upon the terms of the lease and in case of disagreement, the court
shall fix the terms thereof.
ART. 449. He who builds, plants or sows in bad faith on the land of another,
loses what is built, planted or sown without right to indemnity
RULES:
In applying Article 448, the land owner, if in good faith, should be given the
first option because he is the owner of the land especially if he is dealing
with a person in bad faith. His right is older and by the principle of
accession, he is entitled to the ownership of the accessory thing.
1.
2.
3.
Example:
1. Easement of light and view when the window or opening is on ones
own wall or estate
x----------------------------------------x
MODES OF EXTINGUISHMENT OF EASEMENTS (Art. 631, NCC)
1. Merger in the same person of the ownership of the dominant and
servient estates;
2. By non-user for ten years; with respect to the discontinuous
easements, this period shall be computed from the day on which they
ceased to be used; and with respect to continuous easements from the
day on which an act contrary to the same took place;
3. When either or both of the estates fall into such condition that
the easement cannot be used; but it shall revive if the subsequent
condition of the estates or either of them should again permit its use,
unless when the use becomes possible, sufficient time for the
prescription has elapsed, in accordance with the provisions of the
preceding number; (impossibility of use)
4. Expiration of the term or the fulfillment of the condition, if the
easement is temporary or conditional.
5. Renunciation of the owner of the dominant estate;
6. Redemption agreed upon between the owners of the dominant and
servient estates.
x----------------------------------------x
DONATIONS:
Donation is perfected from the moment the donor knows the acceptance of
the done (Art. 734). The donors capacity shall be determined at the time of
making of the donation (Art. 737). Making means perfection.
Forms of Donations:
1. MOVABLE (Art. 748); non compliance void
a. If value is more than 5K:in writing the acceptance must also be in
writing
SUCCESSION
Requisites of a valid will:
1. Notarial will
a. Must be in writing (Art. 804) written by hand or typewritten; mechanical
act of writing or drafting may be done not by the testator
In the last page when the will consists of only 2 or more pages
When the will consists of only one page
When the will consists of 2 pages, the 1 st of which contains all the
testamentary dispositions and is signed at the bottom by the
testator and the witnesses, and the 2nd contains only the attestation
clause duly signed at the bottom by the witnesses.